
    11845.
    Pannell v. Stark, sheriff et al.
    
    Decided June 6, 1921.
    Action for damages; from Walton superior court — Judge Cobb. August 25, 1920.
    
      Rogers & Tuck, for plaintiff.
    
      R. L. & H. C. Cox, A. C. Stone, H. G. Nowell, for defendants.
   Stephens, J.

1. Where the payee of a promissory note, which contains a stipulation to pay attorney’s fees, engages a third person to serve upon the maker the statutory notice of the payee’s intention to institute suit on the note and to ask for the stipulated attorney’s fees, as provided in the Civil Code (1910), § 4252, as a condition precedent to the payee’s right in a suit on the note to recover attorney’s fees, and such third person fails to perfect service of the notice on the maker of the note, and where the payee proceeds with a suit on the note, but is deprived of any right to collect attorney’s fees, by reason of the notice not having been served upon the maker as required by the statute, such third person is not liable to the payee in damages to the amount of the stipulated attorney’s fees, or for any attorney’s fees incurred by the payee in collecting the note, where it does not appear that the maker would not, after receipt of the notice, have paid the note on or before the return day, the payee’s right to recover attorney’s fees on the note, even after the giving of thq statutory notice, being, under the terms of the statute, contingent upon a failure of the maker to pay the indebtedness evidenced by the note on or before the return day of the court to which the suit is brought. Such damages are contingent and too remote. Civil Code (1910), § 4394; Clay v. Western Union Telegraph Co., 81 Ga. 285 (6 S. E. 813, 12 Am. St. R. 316).

2, It not appearing that any ruling of the trial judge was invoked upon any ground to continue the hearing or to set aside' the judgment upon the ground of the illness of counsel, this court cannot consider any assignment of error complaining of a hearing by the trial judge during the absence of counsel on account of illness.

3. The demurrer to the petition was properly sustained.

Judgment affirmed.

Jenkins, P. J., and Hill, J., concur.  