Hazlehurst v. Stahl Florida Properties Co.

Jenkins, P. J.

“Copies of contracts, obligations to pay, or other writings should be incorporated in or attached to the petition in all cases in which they constitute the cause of action, or the relief prayed for must be based thereon.” Civil Code (1910), § 5541. But “in a suit on a promissory note which contains an unconditional and unequivocal promise to pay, but which contains also a reference to a collateral agreement, it is not necessary to plead the collateral agreement by attaching a copy of it to the petition, where it does not appear from the reference to it in the note.that it is such an agreement as would vary or affect the terms of the note.” Chatham Motor Co. v. Commercial Credit Co., 28 Ga. App. 428 (111 S. E. 688). Accordingly, where, as in the instant case, a suit is based upon a written and unconditional promise to pay, which merely sets forth, that the obligation is secured by a land contract, and where only a personal judgment is sought against the defendant, and no relief is prayed for which must be based upon the security contract referred to, the petition is not subject to demurrer on the ground that the contract referred to is not attached thereto. The note sued on being unconditional in its obligation, any advantage which the defendant might seek to take of any clause which might possibly be contained in the security contract, as construed in connection with the instrument sued on, could be pleaded by the defendant as a matter of defense.

Judgment affirmed.

Stephens amd Bell, JJ., concur.