Opinion
37790.
DECIDED SEPTEMBER 14, 1959.
Action on notes. Bibb Civil Court. Before Judge Butler. April 15, 1959.
Frank G. Wilson, for plaintiff in error.
George E. Saliba, contra.
In an action to recover on two promissory notes, the original answer pleading lack of authority on the part of the plaintiff to perform a portion of the repair work for which said notes were given did not constitute a legal defense where it also showed that the defendant had ratified the work done, nor did it contain enough to amend by where the defendant also admitted receipt of the statutory notice of intention to collect attorney's fees, while simply denying that he owed them. The court did not err in sustaining the general demurrer to the original answer and the demurrers and objections to the proffered amendments seeking to plead failure of consideration by reason of defective repairs.
DECIDED SEPTEMBER 14, 1959.
Yancey Bros. Company filed its action in the Civil Court of Bibb County against H. P. Kingery seeking to recover principal, interest and attorney's fees on two promissory notes. The petition, omitting formal parts and jurisdictional averments, stated: "2. Defendant is indebted to petitioner in the principal sum of $634.35, besides interest thereon at the rate of six (6) percent per annum from February 28, 1959, plus fifteen percent of the total as attorney's fee; being the amount due on two promissory notes executed by defendant in favor of said petitioner. A true copy of each of the said notes is hereunto annexed and marked `Exhibit A'. and `Exhibit B' respectively. 3. Said debt is due, true, correct and unpaid, and defendant fails and refuses to pay the same. 4. Petitioner shows that more than ten days from the date of bringing this action it gave to the defendant written notice as required by Section 20-506 of the Code of Georgia, as amended, so as to entitle petitioner to collect attorney's fee."
To these allegations, the original answer of the defendant was as follows: "2. Answering paragraph two of plaintiff's petition, defendant admits the execution of the notes and that copies of the notes are attached to the petition, but defendant avers that he received no consideration for the execution of the notes. The remaining allegations of paragraph two are expressly denied. 3. Defendant denies paragraph three of plaintiff's petition. 4. Answering paragraph four of plaintiff's petition, defendant admits the receiving of the notice as alleged but defendant denies that the plaintiff is entitled to recover attorney fee. 5. For further plea and answer the defendant shows that he authorized the plaintiff, to do repair work for him on certain equipment and that while the defendant's equipment was in the possession of the plaintiff, the same was damaged by reason of the plaintiff's failure to exercise the proper diligence for the protection of said property. The plaintiff repaired the damages to the defendant's equipment and charged the defendant for making said repairs. Defendant avers that the damages were occasioned by the negligence of the plaintiff and therefore the defendant is not liable for such repairs. 6. Defendant shows that the plaintiff was only authorized to repair the clutch and weld the radiator on a caterpillar tractor, but the plaintiff exceeded its authority and did other repair work to said tractor. Defendant avers that the value of said work or repairs did not exceed approximately $100. Therefore, the consideration for said notes had partially failed."
Plaintiff's general demurrers to said answer and the subsequent amendment thereto were sustained by the trial court, to which ruling the defendant excepts.
"Where in an answer by paragraphs to a petition bringing suit on a promissory note, a defendant makes in answer to one paragraph a general denial of the indebtedness as alleged in the petition, and such answer nowhere sets up any legal defense, such denial is in effect a plea of the general issue, and was properly stricken on demurrer." Johnson v. Cobb, 100 Ga. 139 (2) ( 28 S.E. 72). Thomas McCafferty v. Siesel, 2 Ga. App. 663 (7) ( 58 S.E. 1131); Dickson v. Bond, 18 Ga. App. 45 (2) ( 88 S.E. 825); Richey v. Johnson, 21 Ga. App. 41 ( 93 S.E. 514); Bowden v. Davison-Paxon Co., 71 Ga. App. 379, 382 ( 31 S.E.2d 83). In his original answer, defendant pleaded that only about $100 of the work done by the plaintiff was authorized by him. Yet the plea shows on its face that the defendant ratified the allegedly unauthorized portion of the work done by giving notes for $634.35 in payment thereof. "One who gives a note, or makes an unconditional promise in writing for the payment of a debt after the same has been contracted, waives all defenses of which he had full knowledge at the time such a settlement by written contract was made." Atlanta Consolidated Bottling Co. v. Hutchinson Sons, 109 Ga. 550, 552 ( 35 S.E. 124) and cases cited.
Under these circumstances, the original answer of the defendant nowhere sets up a legal defense to the suit on promissory notes executed by him and there was nothing for him to amend by. "The original plea having set up no defense whatever, an amendment, the purpose of which was to set up a defense not indicated by or referred to in such plea, was properly rejected on the ground that there was nothing to amend by." Smith v. First Nat. Bank, 115 Ga. 608 (2) ( 41 S.E. 983); Moss v. Anderson, 10 Ga. App. 784 ( 74 S.E. 299); McMillan v. Fourth Nat. Bank, 18 Ga. App. 445 (2) ( 89 S.E. 635); Richey v. Johnson, 21 Ga. App. 41, supra; Caudell v. Nabstedt, 22 Ga. App. 694 (1) ( 97 S.E. 99). The defendant's admission of the receipt of statutory notice regarding attorney's fees is sufficient to remove this case from the ruling in Kreischer v. Bank of Louisville, 32 Ga. App. 699 (3) ( 124 S.E. 539) and Greenwood v. Greenwood, 44 Ga. App. 847 (3) ( 163 S.E. 317), to the effect that a denial of the receipt of statutory notice as to attorney's fees constitutes enough to amend by.
The court did not err in sustaining the general demurrers and objections to the original answer, which set up no defense whatever, and proffered amendments which alone alleged a failure of consideration due to faulty repairs.
Judgment affirmed. Quillian and Nichols, JJ., concur.