Opinion
41514.
SUBMITTED SEPTEMBER 14, 1965.
DECIDED SEPTEMBER 21, 1965.
Action on contract. Atkinson Superior Court. Before Judge Lott.
Sumner Boatright, J. Laddie Boatright, for plaintiff in error.
George E. Maddox, contra.
This was a contract action for the balance due on the purchase price of a tobacco harvester. The petition alleged and the evidence showed an assignment to the plaintiff of a "Purchase Agreement" executed by "Kitchens Tractor Co., by /s/ Rubye T. Dormeney." Held:
1. This was sufficient allegation and proof of a transfer of the contract to the plaintiff, in the absence of specific denial of the transfer under oath. Sheffield v. Johnson County Savings Bank, 2 Ga. App. 221, 223 ( 58 S.E. 386); Cedar Rapids Nat. Bank v. Beckham, 6 Ga. App. 571 ( 65 S.E. 359); Ruby v. Boyett, 19 Ga. App. 516 ( 91 S.E. 939); Home Finance Co. v. United Motor Sales, 91 Ga. App. 679 ( 86 S.E.2d 659).
2. The court was authorized by the evidence to direct a verdict for the principal amount sued for. See Bullard v. Bullard, 214 Ga. 122, 124 ( 103 S.E.2d 570); Farmers Peanut Co. v. Zimmerman-Alderson Carr Co., 52 Ga. App. 265, 267 ( 183 S.E. 115); Barrow v. James, 107 Ga. App. 377, 378 ( 130 S.E.2d 352).
3. However, the evidence did not authorize a verdict for attorney's fees. Though the plaintiff incorporated in its petition a notice to the defendant to produce the written notice required by statute ( Code Ann. § 20-506) to enforce contract provisions for attorney's fees allegedly given the defendant, the record does not show that the notice was introduced in evidence or that the plaintiff procured a peremptory order of the court for the production of this evidence at the trial. Cunningham v. Avakian, 187 Ga. 575 ( 1 S.E.2d 433); Reserve Life Ins. Co. v. Gay, 96 Ga. App. 601, 603 ( 101 S.E.2d 158), reversed on other grounds, 214 Ga. 2 ( 102 S.E.2d 492).
Since the evidence supported the verdict for the principal amount sued for but did not support the verdict for attorney's fees, the judgment overruling the motion for new trial will be affirmed on the condition that the award of attorney's fees of $178.66 be written off by the plaintiff before the remittitur of this court is made the judgment of the trial court.
The trial court did not err in directing a verdict for the principal amount sued for, but erred in directing a verdict for attorney's fees. This error will become harmless, however, upon compliance with the condition of the judgment of this court.
The trial court did not err in overruling the general demurrer to the petition.
Judgment affirmed on condition; otherwise reversed. Bell, P. J., and Frankum, J., concur.