One In All Corp. v. Fulton Nat. Bank, 40149

• Court: Georgia Court of Appeals
• Writing for the Court: HALL; CARLISLE, P. J., and BELL; HALL; CARLISLE, P. J., and BELL
• Citation: One In All Corp. v. Fulton Nat. Bank, 132 S.E.2d 116, 108 Ga.App. 142 (Ga. App. 1963)
• Decision Date: 23 May 1963
• Docket Number: No. 3,No. 40149,40149,3
• Parties: ONE IN ALL CORPORATION v. FULTON NATIONAL BANK

Page 116

132 S.E.2d 116

108 Ga.App. 142

ONE IN ALL CORPORATION v. FULTON NATIONAL BANK.

No. 40149.

Court of Appeals of Georgia, Division No. 3.

May 23, 1963.

Rehearing Denied July 2, 1963.

Syllabus by the Court

1. When the granting of a summary judgment has been reversed because the evidence before the court created a material issue of fact, it is error to direct a verdict in the case upon substantially the same evidence presented at trial.

2. Notice relative to enforcement of the provisions of a note for payment of attorney's fees given the debtor after suit on a note, but ten days before an amendment seeking recovery of attorneys' fees, complies with the notice requirement of Code Ann. § 20-506.

3. Business records admitted in evidence and not contradicted or impeached may sustain a directed verdict.

Leiter & Leiter, Marvin O'Neal, Jr., Atlanta, for plaintiff in error.

Smith, Kilpatrick, Cody, Rogers & McClatchey, Thomas E. Joiner, Atlanta, for defendant in error.

HALL, Judge.

The only assignment of error argued in this case is the direction of a verdict on counts I and III of plaintiff's suit for the balance due on promissory notes executed by the defendant.

1. The defendant, as plaintiff in error in this court, contends that a conflict between the testimony of witnesses for the plaintiff and for the defendant required submission of the case to the jury; and the plaintiff contends that this was an immaterial conflict in the evidence. The defendant's witness Leiter testified that in a telephone conversation between Ryals, of Ryals Insurance Agency, Inc., the original payee of the note sued on in count I, and the plaintiff bank's employee, to which Leiter was a party on an extension phone, the bank's employee said, 'The credit of the One In All Corporation was not good and they wouldn't take their note * * * and they said they would take a note for One In All Corporation and they would collect on it * * * He wouldn't take the notes of One In All Corporation because credit wasn't there * * * He would take the note on the automobile [sued on in count III] but he absolutely refused to take it on insurance and he mentioned that they wouldn't mind holding for collection and we pay to the bank, when the bank gets the money they would turn it over to Ryals * * * He would take it for collection, would hold it over and take it for collection. He wouldn't honor it.' The bank employee testified he did not recall any conversation about this particular note. Ryals testified he did not remember whether or not he discussed this note, and denied that the defendant's witness was on an extension phone in his office.

In One In All Corp. v. Fulton National Bank, 106 Ga.App. 255, 126 S.E.2d 636, this court reversed the granting of the plaintiff's motion for summary judgment because of testimony of the defendant's witness Leiter 'gained through a three-way telephone conversation * * * that the bank took the notes [including the note sued on in count I] for collection.' The opinion states: 'From this testimony of Leiter in the record it appears that there was a substantial issue of material fact which the defendant had the right to have submitted to a jury.' The testimony then before the court was substantially the same as Leiter's testimony at the trial. Therefore it is the law of this case that the conflict in the evidence was material as to count I and that a verdict should not have been directed on count I. Jackson v. Jackson, 209 Ga. 85, 88, 70 S.E.2d 592. The essence of a motion for summary judgment and a motion for directed verdict is that there is no genuine issue of material fact to be resolved by the trior of the facts. McCarty v. National Life & Accident Ins. Co., 107 Ga.App. 178, 129 S.E.2d 408. When the granting of a summary judgment has been reversed because the evidence before the court created a material issue of fact, it is error thereafter to direct a verdict in the case upon substantially the same evidence presented at the trial.

2. Respecting count I the record shows that a notice, as provided by Code Ann., § 20-506, relative to enforcement of the provisions of the note for payment of attorneys' fees was given to the defendant, after the original petition was filed but ten days before the plaintiff's amendment to count I seeking recovery of attorneys' fees. We are of the opinion that failure to give notice before commencement of the action does not preclude the recovery of attorneys' fees, as contended by the defendant. Camilla Cotton Oil Co. v. Spencer Kellogg & Sons, 257 F.2d 162 (5th Cir.). The case of Strickland v. Williams, 215 Ga. 175, 109 S.E.2d 761, relied on by the defendant, is not inconsistent with the holding in the Camilla case, supra.

3. The defendant contends...