American Savings Bank v. Sutton

• Decision Date: 25 June 1918
• Docket Number: No. 2279.,2279.
• Citation: 204 S.W. 572
• Parties: AMERICAN SAVINGS BANK v. SUTTON.
• Court: Missouri Court of Appeals

204 S.W. 572

AMERICAN SAVINGS BANK v. SUTTON.

No. 2279.

Springfield Court of Appeals. Missouri.

June 25, 1918.

Appeal from Circuit Court, Shannon County; Hon. E. P. Dorris, Judge.

Replevin by the American Savings Bank against R. S. Sutton. Judgment for plaintiff in part, and plaintiff appeals. Reversed and remanded, with directions.

S. A. Cunningham, of Eminence, and Argus Cox, of Springfield, for appellant.

BRADLEY, J.

Action in replevin to obtain possession of certain property mortgaged to secure a promissory note. January 1, 1917, defendant gave his note due in six months in the sum of $1,500 to one Randall. Before maturity and for value Randall transferred the note and mortgage securing same to plaintiff. The note is as follows:

"$1,500.00. Eminence, Mo., Jan. 1, 1017.

"Six months after date I promise t3 pay to the order of C. L. V. Randall the sum of fifteen hundred dollars for value received, with interest at the rate of eight per cent. per annum from maturity until paid. The makers and indorsers of this note hereby severally waive presentment of payment, notice of nonpayment, and protest, authorize extension of time, and if not paid at maturity, all legal costs of collection and 10 per cent. for attorney's fees will be paid.

                 "(Signed]                       R. S. Sutton."
                

The controversy wages about the attorney's fee provision. Plaintiff's place of business is in the city of Springfield, Mo., in Greene county, and defendant resides in Shannon county, Mo. Before maturity of said note defendant was notified by plaintiff that it was the owner; and after maturity payment was demanded. No payment was made, and plaintiff notified defendant that, if the note was not paid by a certain date, it would be turned over to an attorney for collection. No payment was made, and the note was turned over to plaintiff's attorney. The attorney wrote defendant demanding payment, but no payment was made. In the latter part of August plaintiff's attorney went from Springfield to Shannon county to collect the note or foreclose the mortgage. When the attorney found defendant and demanded payment, defendant advised that he had mailed a check for $1,300 to Randall, the original payee. Plaintiff's attorney then sought Randall, obtained the check, and applied $1,165 thereof on the principal, $15 on the accrued interest, and retained $120 as a fee. October 17th after this suit was filed defendant paid $105 on the note.

The answer admitted the execution of the note and mortgage; pleaded that the two payments should be credited on the principal and interest, and tendered the balance due on the face of the note with interest, and also tendered 10 per cent. on this balance as attorney's fee. The reply denied generally the new matter set up.

The cause was tried before the court without the intervention of a jury, and judgment went for plaintiff for the balance due with interest on the face of the note as pleaded by defendant, and also for $46.77 attorney's fee. This allowance for attorney's fee was based on 10 per cent. of the balance due after deducting the $1,300 as a credit on principal and interest, and an allowance of $25 additional. From this judgment plaintiff appealed.

Plaintiff insists that it is entitled to have judgment for $150 as attorney's fee in accordance with the terms of the note. The trial court proceeded on the theory that plaintiff was entitled only to what might be found to be a reasonable fee regardless of the provision in the note.

It is the settled law of this state that a provision in a promissory note for the payment of an attorney's fee in collection is binding and enforceable. Bank v. Gay, 63 Mo. 33, 21 Am. Rep. 430; Samstag v. Conley, 64 Mo. 476; Bank v. Marlow, 71 Mo. 618; Bank v. Gay, 114 Mo. 203, 21 S. W. 479; Bank v. Martin, 129 Mo. App. 484, 107 S. W. 1108; Buck v. Harris, 125 Mo. App. 365, 102 S. W. 640; Bank v. Lee, 182 Mo. App. 185, 168 S. W. 796; Bank v. Stain, 186 Mo. App. 439, 171 S. W. 567.

The note provided that, "if not paid at maturity, all legal costs of collection and ten per cent. for attorney's fees will be paid." There could be no attorney's fee except upon the happening of two contingencies: (1) That the note was not paid at maturity; (2) and that an attorney rendered some service towards the collection of the...