Ross & Williams v. Southern Exchange Bank

144 S.E. 338, 38 Ga. App. 532, 1928 Ga. App. LEXIS 332

• Court: Court of Appeals of Georgia
• Decided: August 31, 1928
• Docket: 18677
• Status: Published

Opinion

Bell, J.

1. An agreement between the superintendent of banks and the maker of a promissory note, to the effect that the superintendent will not enforce the stipulation in the note with reference to the payment of attorney’s fees, is not binding where the agreement is entirely executory and is not supported by a valuable consideration and where no element of estoppel enters. Rylee v. Statham, 7 Ga. App. 489 (6) (67 S. E. 383; Southern Mfg. Co. v. Moss Mfg. Co., 13 Ga. App. 847 (3) (81 S. E. 263); Civil Code (1910), §§ 4241, 4326, 4329; 29 Am. & Eng. Ency. L. (2d ed.) 1097. This is not to decide whether the superintendent might effectively waive the collection of such fees under other circumstances.

2. The alleged agreement of the superintendent to waive the payment of such fees, as disclosed in the proffered amendments to the defendants’ answer, appearing to be a nudum pactum, the court did not err in disallowing the amendments.

Judgment affirmed.

Jenlcms, P. J., and Stephens, J., concur. G. G. Groclceti, for plaintiffs in error. Ilightoiver & New, contra.