Opinion
39049.
DECIDED SEPTEMBER 27, 1961.
Complaint. Savannah City Court. Before Judge Alexander.
Hitch, Miller Beckmann, R. N. Hitch, for plaintiff in error.
Willis J. Richardson, Jr., Myrick, Myrick Richardson, contra.
1. The purpose of the provision of the law relating to the giving of ten days' notice to the debtor of the creditor's intention to enforce the provision for attorney's fees in a contract is to allow the debtor to pay the principal and interest on the contract within ten days from receipt of the notice and relieve himself of the liability to pay attorney's fees. Code § 20-506 (c) as amended. The fact that the notice states that the contract provides for 15% attorney's fees instead of 10% as actually provided for in the contract does not destroy the efficacy of the notice for the simple reason that only the amount provided in the contract under 15% could be recovered and compliance with the notice would absolve the debtor of the obligation to pay the fees whatever the percentage was. The court did not err in overruling the special demurrer directed at the sufficiency of the notice to bind for attorney's fees.
2. Subsection (b) of the act of 1953 (Ga. L. 1953, Jan.-Feb. Sess., p. 545; Code Ann. § 20-506 (b)) only limits the amount which may be allowed as attorney's fees under contract provisions to 15% and this section does not mean that 15% may be recovered where the provision for such fees in a contract is for less than 15%.
Accordingly, it was error for the court to enter judgment for 15% of the principal and interest due instead of for 10% as stipulated in the note sued on.
The trial court's judgments are affirmed with the direction that the court write off 5% of the amount of the principal and interest allowed for attorney's fees.
Judgments affirmed with direction. Bell and Hall, JJ., concur.