J.B. Simmons Lumber Co. v. Toccoa Furniture Co.

• Decision Date: 02 May 1921
• Docket Number: 11995,12039.
• Parties: J. B. SIMMONS LUMBER CO. v. TOCCOA FURNITURE CO. TOCCOA FURNITURE CO. v. J. B. SIMMONS LUMBER CO.
• Court: Georgia Court of Appeals

107 S.E. 340

26 Ga.App. 758

J. B. SIMMONS LUMBER CO. v. TOCCOA FURNITURE CO.

TOCCOA FURNITURE CO. v. J. B. SIMMONS LUMBER CO.

Nos. 11995, 12039.

Court of Appeals of Georgia, Second Division

May 2, 1921

Error from Superior Court, Stephens County; J. B. Jones, Judge.

Action by the Toccoa Furniture Company against the J. B. Simmons Lumber Company. Judgment for plaintiff, and defendant brings error, while plaintiff files a cross-bill of exceptions. Affirmed, with directions, on the main bill, and cross-bill dismissed.

J. H. & Emett Skelton, of Hartwell, Fermor Barrett, of Toccoa, and H H. Perry, of Gainesville, for plaintiff in error.

Davis & Davis and Goode & Owen, all of Toccoa, and W. A. Charters, of Gainesville, for defendant in error.

JENKINS P.J.

Suit by attachment was instituted by Toccoa Furniture Company on two promissory notes given for the purchase price of certain machinery and executed by the J. B. Simmons Lumber Company. In the declaration filed in the proceedings, judgment was asked for principal, interest, and attorney's fees. The defendant demurred to that portion in which attorney's fees were claimed. In a special plea the defendant admitted that the plaintiff was the holder of the notes sued on, and admitted the execution thereof, and that the statutory notice required for recovery of attorney's fees had been served as alleged, and claimed a certain sum by way of set-off, and also set up a cross-action by way of recoupment, alleging that the plaintiff had breached a certain contract relating to the machinery in question which it had entered into with the defendant at the time of the purchase. The defendant's demurrer as to the claim for attorney's fees was overruled, and to this ruling exceptions pendente lite were taken. A verdict was rendered in favor of plaintiff, including a portion of the attorney's fees. Exception is taken to the overruling of defendant's motion for new trial. Held:

1. The defendant having admitted the execution of the notes and prima facie liability thereon, it was not erroneous or confusing for the judge to charge the jury that, whatever they might do, they would have to "compute" this admitted liability in their finding; the charge being otherwise full and fair relative to the defenses actually set up and relied upon.

2. The concluding remark made by the court in a colloquy with the plaintiff's counsel, having explicit reference to the mere form of...