Opinion
37946.
DECIDED OCTOBER 27, 1959.
Action on note. Hinesville City Court. Before Judge Carr from Reidsville City Court. June 26, 1959.
Bouhan, Lawrence, Williams, Levy McAlpin, John J. Bouhan, H. M. Hodges, for plaintiff in error.
C. L. Cowart, John W. Underwood, contra.
1. When a promissory note specifies that a stated sum "without interest" is to be paid on a certain date, the phrase "without interest" refers only to the time between the execution of the note and the date of maturity, as interest will accrue from the date the holder has a right to make a demand for payment.
2. A provision in a note for attorney's fees is enforceable in a suit on the note unless there is a tender of the entire sum of the principal and interest before the return day of the suit. A tender of a part of the sum will not prevent the recovery of attorney's fees.
DECIDED OCTOBER 27, 1959.
The plaintiff in error, Wilson Jenkins, executor of the will of Mary M. Jenkins, filed suit in the City Court of Hinesville on a note executed by the defendant in error, J. H. Morgan. The note was a printed form which had stricken out all reference to interest to read as follows: "$6000.00 Hinesville, Ga., June 2, 1954. October 2, 1954, I, we or either of us, promise to pay to the order of Mary E. Jenkins, six thousand no/100 — dollars, at any place, for value received, with no interest, including all costs, of collection, including ten percent attorney's fees." The note was prepared at the direction of the defendant in error and its execution was admitted. There was testimony of a tender of $2000 to the executor, but no showing of a tender of the entire amount due. The trial judge refused the plaintiff's motion for a directed verdict and directed the jury to return a verdict for the principal amount with interest from the date of verdict only. Within the time allowed by law, the plaintiff in error filed a motion for new trial which was denied. To this ruling the plaintiff in error excepts.
1. Parties may stipulate for other legal principles to govern their contractual relationship than those prescribed by law; however, these must be expressly stated in the contract. The parties will be presumed to contract under the existing laws, and no intent will be implied to the contrary unless so provided by terms of their agreement.
All liquidated obligations bear interest from the date of maturity as provided by law. Code § 57-110. See Morgan v. Colt Co., 34 Ga. App. 630 ( 130 S.E. 600). As the note was prepared by the defendant in error, it will be strictly construed as to him. Calhoun v. Lemon, 192 Ga. 186 ( 14 S.E.2d 710); Small Co. v. Claxton, 1 Ga. App. 83 ( 57 S.E. 977); Moorefield v. Fidelity Mut. Life Ins. Co., 135 Ga. 186, 187 (2) ( 69 S.E. 119).
It is clear that the note provided that no interest would accrue on the principal amount before the due date, but as to interest after the date of maturity, the contract is silent. When the obligation matures the holder has a right to payment. Upon default by the obligor, the holder is entitled to interest at the legal rate as provided by law.
2. A maker of a note may avoid the payment of attorney's fees provided in such note by a tender of the principal and interest due before return day. The defendant in error did not attempt to tender the entire amount. There is an admitted balance unpaid on the note and the holder is entitled to attorney's fees. The question is controlled by Smith v. Pilcher, 130 Ga. 350 (3) ( 60 S.E. 1000) and the reasons given therein.
Judgment reversed. Felton, C. J., and Nichols, J., concur.