Shaw v. Probasco

Lumpkin, J. Probasco, alleging himself to be a purchaser before due and for value, brought .suit against Shaw and others on two promissory notes payable to order and indorsed by the payees through their agent. The defendants denied liability, and pleaded: that they had not signed any such notes as those on which suit was brought; that, if any such notes existed, they had been altered by inserting interest at eight per cent., and were forgeries; and that the notes were given for the purchase of a horse, upon certain representations as to his qualities, which were untrue, and he was wholly unfitted for the purpose for which he was bought. On the trial evidence was introduced to show that the notes were to bear interest after maturity at the lawful rate, but, after they were given, the agent of the sellers altered them so as to make them bear interest at eight per cent, from date. The evidence showed that the agent then negotiated them to the plaintiff before due and without [483] notice. The notes were joint and several, and contained a provision for the payment of attorney’s fees, without stating any amount. The petition alleged that notice had.been given as required by the Civil Code, § 4252, in order to recover attorney’s fees. This was denied in the answer. The attorney for the plaintiff testified, that, more than ten' days before the return day of the term to which suit was brought, he made out and mailed to the defendants “notices,” without stating anything as to the contents of such notices, or their direction, or stamping. He said that several had acknowledged receipt thereof, though some had not. Some of the defendants as witnesses denied receiving any notice. An attorney testified that in his judgment ten per cent, would be a reasonable attorney’s fee. The court directed a verdict for the plaintiff against all the defendants for the principal, interest from maturity at seven per cent., and ten per cent, attorney’s fees. Defendants moved for a new trial, which was refused, and they excepted. ' The headnotes require little elaboration. The direction of a verdict was clearly error, at least as to the attorney’s fees, for two reasons: (1) There was evidence tending to show that some of the defendants did not receive the notice of intention to sue, which the statute requires to be given in order that attorriey’s fees may be recovered. (2) This court has held that the judge is hot authorized to direct a verdict for a certain amount as attorney’s fees upon the testimony" of an attorney that in his opinion the services are worth that amount. Notice to some is not notice to all. Whether attorney’s fees can • be recovered against some of the defendants, and not against others, is not now for decision. The very general evidence of the attorney that he made out and mailed notices, with no statement as to their contents, direction, or stamping, should have been rejected. It was not sufficient to show notice of the character required by the statute. There being no other evidence of notice to the defendants under the statute, evidence of the value of attorney’s fees in collecting the notes should have been rejected. No notice to the holder of the notes of any fraud on the part of the payees, or of failure of consideration, was shown, and it was not error to reject evidence tending to prove such defenses. Judgment reversed. All the Justices concur.