New House Products, Inc. v. Commercial Plastics & Supply Corp., 53218

• Decision Date: 07 February 1977
• Docket Number: No. 2,No. 53218,53218,2
• Parties: NEW HOUSE PRODUCTS, INC., et al. v. COMMERCIAL PLASTICS & SUPPLY CORPORATION
• Court: Georgia Court of Appeals

Page 45

233 S.E.2d 45

141 Ga.App. 199

NEW HOUSE PRODUCTS, INC., et al. v. COMMERCIAL PLASTICS & SUPPLY CORPORATION.

No. 53218.

Court of Appeals of Georgia, Division No. 2.

Feb. 7, 1977.

Levy, Buffington & Adams, M. Alvin Levy, D. Merrill Adams, Atlanta, for appellants.

Lipshutz, Zusmann, Sikes, Pritchard & Cohen, Charles E. Lamkin, Atlanta, for appellee.

SHULMAN, Judge.

Plaintiff Commercial Plastics & Supply Corp. filed suit against New House Products, Inc. and Robert Niehaus seeking recovery of principal, interest and attorney fees on a promissory note. The defendants answered jointly denying liability. They now appeal from summary judgment for plaintiff.

1. In their first enumeration of error, appellants contend the trial court erred by disallowing an offset against the principal amount of the note. The record reveals that the offset was based on an alleged failure of consideration, which, as an affirmative defense, must be raised in the pleadings or be waived. Code Ann. § 81A-108(c); Searcy v. Godwin, 129 Ga.App. 827, 201 S.E.2d 670. Appellants admit the affirmative defense was not raised in any pleading, but assert that defendant Niehaus' testimony in deposition to facts supporting the defense was sufficient to raise the issue.

It is clear from the language of the statute governing use of depositions that a deposition is not a pleading or evidence, but merely potential evidence: ". . . objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying." Code Ann. § 81A-132(b). Since plaintiff would have had grounds for the exclusion of testimony at trial of any alleged failure of consideration for failure of the defendant to raise the defense in a pleading, Knickerbocker Tax Systems, Inc. v. Texaco, Inc., 130 Ga.App. 383, 203 S.E.2d 290, it has the same right as to such testimony in the deposition. Appellants' argument, therefore, must fail.

2. The second enumeration of error, that it was error to award judgment for interest and attorney fees on the whole amount of the principal without allowance for the offset, is equally without merit in light of our holding in Division 1 of this opinion.

3. Appellant Niehaus contends it was error to allow judgment against him for attorney fees, alleging plaintiff's failure to give notice of intent to seek attorney fees as required by Code Ann. § 20-506(c). Niehaus denies receipt of the notice and no proof appears that he did receive notice through the mail. However, the complaint, proper service of which is admitted, contains the following paragraph: "4. Plaintiff has given, and does hereby give, Defendants written notice of Plaintiff's intent to collect attorney's fees, copies of which are attached hereto marked Exhibits 'B' and 'C'." Exhibit "C" is a copy of a letter addressed to Niehaus containing a notice which conforms to the requirements of § 20-506(c). Previous decisions of this court have made it clear that notice may be given any time between maturity of the obligation and ten days prior to judgment. One In All Corp. v. Fulton National Bank, 108 Ga.App. 142, 132 S.E.2d 116; Turner v. Bank of Zebulon, 128 Ga.App. 404, 196 S.E.2d 668; Candler v. Orkin, 129 Ga.App. 721, 200 S.E.2d 909. But none of those cases has addressed the question presented here:...