Beckham v. Avera Loan & Investment Co.

Bloodworth, J. (After stating the foregoing facts.) The plea in this case is easily distinguished from the pleas in Printup v. Rome Land Co., 90 Ga. 180 (15 S. E. 764), and Thrasher v. Cobb &c. Co., 12 Ga. App. 718 (78 S. E. 254). This case is controlled by the principles announced in Murphy v. Rugely, 24 Ga. App. 262 (100 S. E. 729); Sloan v. Farmers & Merchants Bank, 20 Ga. App. 123 (92 S. E. 893), and Keith v. Farmers & Merchants Bank, 21 Ga. App. 98 (94 S. E. 264). In the case under consideration, as was said by Judge Broyles in Murphy v. Rugely, supra, it was not “ contended that the alleged parol promise was omitted from the writing by fraud, accident, or mistake, or was wrongfully, fraudulently, or deceitfully made.” In the Sloan case, supra, this court said (p. 124): “ Granting that the third paragraph of the plea was sufficient to withstand a general demurrer, and that the plaintiff was not a bona fide purchaser for value of the note sued on, the striking of this paragraph, along with the others, was harmless to the defendant; for, treating the case as though it was between the original parties to the note, no substantial defense was set up by the plea, and it was properly stricken. An oral motion to strike a plea can be made at any time before the verdict, if the motion is in the nature of a general demurrer.’ Blount v. Radford, 16 Ga. App. 95 (2) (84 S. E. 591); Cooney v. Sweat, 133 Ga. 511 (2) (66 S. E. 257, 25 L. R. A. (N. S.) 758).” Under the rulings in these eases there was no error harmful to the defendant in striking the plea. This was a suit on a promissory note, which, under the pleadings, we must assume was unconditional except as to attorney’s fees, and proof having been made that notice was given the defendant of the intention of the plaintiff to bring suit and claim attorney’s fees, as provided by. section 4252 of. the Civil Code of 1910, this court cannot say, in the state of the record, that it was error for the court, after having properly stricken the plea of the defendant, to direct a verdict for the plaintiff. Lang v. Hall, 25 Ga. App. 119 (5) (102 S. E. 877). Judgment affirmed. Broyles, C. J., and Lulce, J., concur.