Deaver v. Dillard

85 S.E. 205, 16 Ga. App. 297, 1915 Ga. App. LEXIS 596

• Court: Court of Appeals of Georgia
• Decided: May 5, 1915
• Docket: 5813
• Status: Published

Opinion

Wade, J.

The court did not err in striking the paragraph in the defendant’s plea which set forth that the note sued on was given to the plaintiffs in partial .payment for services rendered by them in defending his son upon a charge of murder, under an agreement to “see him through the matter to the end, and as long as he needed an attorney to help free him from the said charge or any penalty growing out of the same,” and that the plaintiffs failed and refused, after the conviction of his said son and a sentence to the penitentiary, to aid the defendant in obtaining his pardon, and therefore the consideration of the note totally failed. The plea admitted that a part of the services for which the note sued upon was given and a cash consideration paid were in fact rendered by the plaintiffs, and therefore the plea failed to show an entire absence of any consideration supporting the note. Nor does the plea definitely assert that the note was executed to cover the specific services which the defendant alleged were never in fact rendered.

(a) In order for the defendant to set up the defense of total failure of consideration to the note referred to, it was necessary to allege that the services rendered by the plaintiffs were entirely worthless; and a plea that admits that they performed services as attorneys at law which were accepted by him, and which alleges that the consideration of the note given in part therefor has totally failed because some portion of the services for which it was given were not performed, is insufficient in law. See 3 Am. & Eng. Enc. L. (2d ed.) 831; Harder v. Carter, 94 Ga. 482 (19 S. E. 715); Stimpson Specialty Co. v. Parker, 10 Ga. App. 295 (73 S. E. 412). Judgment affirmed.