Darby v. McIntyre , 49 Ga. App. 115 ( 1934 )

Broyles, C. J.

This is a suit upon a promissory note. Upon the trial the evidence was conflicting, but the issues of fact were settled by the jury, and their findings were approved by the trial judge, and, except as to the amount of attorney’s fees, were supported by the evidence.

(a) The contention of the plaintiff in error that the evidence did not authorize a finding for attorney’s fees is without merit. Counsel for the defendant in error testified that more than ten days before filing the suit he placed in an envelope the original notice of his intention to bring suit, and addressed it to “Mrs. Embelle Darby” (the defendant), “Vidalia, Gra.” (the defendant’s residence), and mailed it with the necessary postage on it; and that the envelope had on it his return address and was never returned to him. This evidence raised a presumption of law that the defendant received the notice, and the presumption was not rebutted by the testimony of the defendant’s husband that his wife never received it, the defendant herself not so testifying.

(b) A ground of the motion for a new trial alleges that the finding of fifteen per cent, of the amount of the principal and interest as attorney’s fees was unauthorized, because the note sued on stipulated for ten per cent, only as such fees. While in the record the copy of the note attached to the petition stipulates for fifteen per cent, attorney’s fees, the copy of the note attached as an exhibit to the brief of the evidence provides for ten per cent, as such fees. Under these circumstances the provisions of the note attached to the brief of the evidence is controlling upon this court, and it is held that the jury’s finding of fifteen per cent, for attorney’s fees was unauthorized. However, the judgment is affirmed, on condition that the plaintiff write off from the verdict and judgment for attorney’s fees the amount of $11.23 (which is five per cent, of the principal and interest recovered by the plaintiff) ; otherwise the judgment will be reversed.

Decided April 7, 1934. B. P. Jaclcson, for plaintiff in error. Saffold & Sharpe, contra.

Jtidgment affirmed, on condition.

MacIntyre and Guerry, JJ., concur.