1. "Where a verdict by a jury is returned in a cause duly on trial (whether by direction or otherwise), and the losing party desires to test the sufficiency of the evidence to support the verdict, a motion for new trial is indispensable [citing numerous cases]." Kenny v. Hannah, 211 Ga. 545 (2) (87 S. E. 2d 51); Chandler v. Pennington, 89 Ga. App. 676, 677 (80 S. E. 2d 843); Baker v. Decatur Lumber &c. Co., 211 Ga. 510 (57 S. E. 2d 89).

2. A bill of exceptions which does not assert that under the pleadings and evidence "there were issues of fact which should have been submitted to the jury," (Beall v. Mineral Tone Co., 167 Ga. 667, 671, 146 S. E. 473), and what those issues of fact are presents no question for review. Kenny v. Hannah, supra.

3. The only assignments of error contained in the present direct bill of exceptions are these: "(a) The motion and direction of the court was contrary to law; (b) Plaintiff in error says that said verdict was not authorized by the evidence because there were issues of fact to be passed upon by a jury, and that neither of the motions should have been entertained by the court (a motion for nonsuit was made but never passed upon by the trial court), nor the verdict directed, said verdict being a final verdict and determination of the case?' Under an application of the foregoing principles of law, the bill of exceptions presents no question for decision by this court and the judgment of the trial court directing a verdict for the plaintiff must be affirmed. Baker v. Decatur Lumber &c. Co., 211 Ga. 510, supra.

On August 21, 1955, W. L. Brown, doing business as the Brown Bank of Cobbtown, Georgia, instituted an action upon a promissory note, dated November 21, 1952, payable upon demand, with interest from date at six percent per annum, in the amount of $16,500. The plaintiff payee alleges that in addition to the principal sum, he is entitled to the amount of $660 for the period from December 21, 1954, to August 21, 1955, at the stipulated rate of six percent. He alleges further that, having given the requisite statutory notice of his intention to file suit on the note, he is entitled to the stipulated ten percent of the principal and interest as attorney's fees.

The defendant maker of the note answered the suit with three separate defenses. In the first defense he denied each of the allegations of the petition. The material allegations of the second defense are substantially these as that defense is finally amended: While it is true that the defendant executed the note upon which suit is brought, the defendant, on August 1, 1955, tendered to Brown Bank at its place of business in Cobbtown, Georgia, lawful currency of the United States in full and complete settlement of the note, and the interest due to that date, but the plaintiff refused to accept such tender or to deliver the note to the defendant. The tender was made at 10 a.m. on August 1, 1955, and the plaintiff was notified by letter, dated July 22, 1955, and signed by the defendant's attorneys, that the tender would be made at such time in lawful currency of the United States, and the plaintiff was also advised that upon his failure to accept the tender the defendant would not be obligated to pay any interest on the note after that date. Furthermore, the plaintiff was notified in due course by United States mail on August 1, 1955, by a letter, signed by the defendant's attorneys, that the plaintiff's refusal to accept the tender would cause the interest on the note to cease on August 1, 1955, and the defendant is not indebted to the plaintiff in any sum whatsoever. The defendant now makes a continuous tender of any balance due on the note and will abide by the judgment of this court in paying the proper sum to the proper party, but absolutely denies that the defendant is bound for attorney's fees in any amount. The tender was properly made and was certain and unconditional and in full settlement of the obligation upon which suit is brought and was made to the cashier of the Brown Bank, Mr. Sikes, an agent authorized to receive the tender, and was in full settlement of the specific amount, and not in part, and was made before notice of attorney's fees was ever given to the defendant by the plaintiff's attorneys. Though the plaintiff was notified by letter of the date, time, and place of the proposed tender, he avoided the tender being made upon him by leaving the Brown Bank in Cobbtown, Georgia, before 10 a.m. on August 1, 1955. The defendant has earned, paid, and is entitled to a credit of $2,297.63 on his note prior to the date of the tender, which the plaintiff has failed and refused to credit thereon, and the tender was in full settlement of the balance on said note, including interest to date of tender. The tender was made prior to the date of serving notice of attorney's fees in the filing of the suit, was a continuous tender, and the defendant stands ready, able and willing to pay the amount due on the note, including interest, up to August 1, 1955, and the plaintiff is not entitled to any interest on the note after August 1, 1955.

The material allegations of the third defense are that the plaintiff is indebted to the defendant in the sum of $2,297.63, plus interest, from January 15, 1955 at the rate of 7 percent per annum upon an open account, an itemized sworn statement of which is attached to the answer and made a part thereof, and that this amount is just, true, due and unpaid to the defendant by the plaintiff and that though demand has been made upon the plaintiff by the defendant for payment, the plaintiff has failed and refused to pay. On August 1, 1955, the defendant did at the office of the Brown Bank, which is a private bank owned and operated by the plaintiff, tender to the plaintiff the full amount due on the note sued on plus interest to that date, provided the plaintiff would allow him credit for the $2,297.63 which the plaintiff failed and refused to do. In addition, the defendant's attorneys have on several occasions advised the plaintiff of these facts, but the plaintiff has refused even to acknowledge receipt of letters from the defendant's attorneys or to allow such credit on the note to Which the defendant is entitled. The defendant stands ready, able and willing to pay the plaintiff the difference between the amount due on the note as of August 1, 1955, including interest, and the account as shown by the itemized statement attached to this defense, and the defendant makes this tender continuous. The defendant is entitled to a setoff against the note sued on in the amount of $2,297.63, but is not and should not be bound for attorney's fees by reason of the plaintiff's failure to accept the difference between the amount of the note sued on and the open account, and the defendant is entitled to the setoff due him by the plaintiff as a credit upon the note sued on.

So far as it appears from the record, no demurrers were filed to the answer.

Upon the trial of the case, the defendant admitted the execution of the note, the receipt of the notice of attorney's fees, assumed the burden of proof, and proceeded to introduce evidence on his behalf in support of his defenses, particularly number three.