Smith v. Kelley , 43 Ga. App. 706 ( 1931 )

Stephens, J.

1. The defendant having by plea admitted the plaintiffs’ right to recover an alleged balance due on a note and attorney’s fees, “unless the defendant makes good his defense” that prior to the return day of the court he tendered the plaintiff, the full amount of principal and interest due at the time of the tender, and it appearing from the record and the uncontradicted evidence that the suit was for a balance due of $4,010 with interest at 8 per cent, per annum from November 1, 1928, and attorney’s fees as contracted for in the note, and that the sum tendered, which was $4,292.26, was not tendered earlier than September 26, 1929, and was therefore $7.40 less than the amount due on the principal and interest on that date, and that the defendant did not, on or before the return day, tender or pay to the plaintiffs the full amount due on the principal and interest, but did afterwards, with the consent of the plaintiffs and without prejudice to any of the rights of the parties, pay the sum of $4,292.26 on the amount due on the note, the plaintiffs were entitled to recover the balance due, including attorney’s fees; and the verdict for the defendant was without evidence to support it and contrary to law.

Judgment reversed.

Jenhins, P. J., and Bell, J., concur.