Dye v. Peacock , 5 Ga. App. 417 ( 1909 )

Hill, C. J.

(After stating the foregoing facts.)

In our opinion the evidence demanded the verdict for the plaintiff. ■ There is no evidence in support of the plea that the defendant had indorsed the note simply for the purpose of passing title, with the understanding that he was not to be liable thereon as indorser. On the contrary, the'defendant stated that the plaintiff demanded that he should indorse the note, when it was transferred to the plaintiff, and that when it was so transferred the plaintiff gave him credit for its amount, less ten per cent, discount, on his note for $300. It can hardly be reasonable to contend that the plaintiff would have required the defendant to indorse the note, and have given him a credit for the amount of the note on his own note to him, if he had not intended to hold him liable on such indorsement.

We think the other ground set up as a defense is equally untenable, under the facts and the law applicable thereto. Walker, the maker of the $100 note sued on, was at the same time indebted to the plaintiff for money and supplies advanced to Walker to make his crop, and was also indebted to the plaintiff as a tenant. He had the right to pay his debts to the plaintiff, and the right also to •direct to which debts the pajunents should be appropriated. He •did not direct the plaintiff as creditor to apply the payments to •any particular debt; and, therefore, the plaintiff had the right to .appropriate the payments, at his election, to any claim which he held against his debtor. Civil Code, §3722. Indeed, we think that Peacock, who held debts against Walker individually for supplies and advances, and the debt against him represented by the note which he had made to Dye and upon which Dye was indorser, when payments were made to him generally by Walker, ■unless otherwise instructed, had the right to apply the payments to the debts held against Walker individually, and was not bound to apply any payment made by Walker to' the debt which he held against him and which was secured by the 'indorsement of the note by Dye. Hargroves v. Cooke, 15 Ga. 322 (7).

The plaintiff in error also insists that the direction of a verdict, against him for attorney’s fees was improper, because there were: not sufficient allegations in the pleadings to authorize recovery of' attorney’s fees, it not being alleged that the notice required by the act of 1900 had been given. Plaintiff sued for principal, interest, and ten per cent, attorney’s fees, and the defendant, in admitting a prima facie ease, admitted the full amount claimed. The judgment in the record, however, shows that it does not include attorney’s fees. Judgment affirmed.