Holland v. Mutual Fertilizer Co.
| Docket Number | 2,465. |
| Decision Date | 07 February 1911 |
| Parties | HOLLAND v. MUTUAL FERTILIZER CO. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Where notice is given, in accordance with the act of 1900 (Acts 1900, p. 53), of an intention to bring suit upon a promissory note which provides for the payment of attorney's fees and where suit is not filed until the last return day of the term of court specified in the notice, tender of the principal and interest upon the note on that day, but after the suit has been filed, will not relieve the debtor from the obligation to pay attorney's fees.
As the delivery of a check, in the absence of an express agreement to that effect, is not payment until the check is itself paid, where an attorney, charged with the collection of a promissory note for his client, accepts a check in payment of the note, he does so at his own risk; and consequently the offer of a check in payment is not equivalent to a tender of payment, and this is true even though the drawer's check has been certified by the cashier of the bank upon which it is drawn.
A "banker's check," as popularly understood, is a check, draft, or other order for the payment of money, drawn by a duly authorized officer of a bank upon either his own bank or some other bank in which funds of his bank are deposited. A "certified check" is one drawn by a depositor upon funds to his credit in a bank, which a proper officer of the bank certifies will be paid when duly presented for payment.
Error from City Court of Statesboro; J. F. Brannen, Judge.
Action by the Mutual Fertilizer Company against M. M. Holland. Judgment for plaintiff, and defendant brings error. Affirmed.
Brannen & Booth, for plaintiff in error.
R. Lee Moore, A. M. Deal, and Johnston & Cone, for defendant in error.
The Mutual Fertilizer Company filed suit in the city court of Statesboro against M. M. Holland upon three promissory notes alleging that the defendant was indebted thereon in the principal sum of $1,213.77, besides interest and 10 per cent as attorney's fees. The defendant filed an answer admitting the execution and delivery of the notes, and that the plaintiff was legal holder, but denying the indebtedness for attorney's fees and interest since return day, because of a tender of the principal and interest on return day. Two amendments to this plea were allowed. At the trial term the defendant's pleas were stricken, on objections, and judgment was rendered for the full amount of the principal, interest, and attorney's fees.
The only question raised by the record is as to the sufficiency of the tender made by the defendant to relieve him from attorney's fees; and this presents two questions: (1) Whether the tender was itself sufficient; and (2) as to whether it came too late. Really it is scarcely necessary, under the facts set out in the amended answer, as admitted by the demurrer to be true, to notice the sufficiency of the tender; for we are inclined to the view that the tender was too late. There can be no question that the first offer made by the defendant to pay the principal and interest was not sufficient to amount to a tender. He offered to pay the principal and interest in a number of personal checks, which the plaintiff had the right to decline. As the delivery of a check, in the absence of an express agreement to that effect, is not payment until the check is itself paid, where an attorney, charged with the collection of a promissory note for his client, accepts a check in payment of a note, he does so at his own risk, and consequently the offer of a check in payment is not equivalent to a tender of payment; and this is true, even though the drawer's check has been certified by the cashier of the bank upon which it is drawn.
It is not denied that at that time suit had not been filed, and though it was on return day, we think that, if the actual amount due had been tendered in money, the defendant would have been relieved from the payment of attorney's fees. According to the allegation of the amendment to the defendant's plea, when the plaintiff's attorney declined the checks drawn by S. F. Ollif, Miss Alice Zetterower, and himself for the amount of his indebtedness, he stated to the defendant that the latter must either bring the money or a banker's check for said debt. "The defendant then left said office and drew his own check on the Sea Island Bank of Statesboro, Ga., in favor of Johnston & Cone [attorneys for the plaintiff] for the full amount of said principal and interest, had the same certified by the cashier of the said bank, and later on the same day, namely, June 17, 1909, about 4:30 o'clock p. m., defendant again called at the office of said attorneys and tendered to Mr. Howell Cone, as attorney for plaintiff, the...
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