Blount Bros. Realty Co. v. Eilenberger
| Decision Date | 25 October 1929 |
| Citation | 98 Fla. 775,124 So. 41 |
| Parties | BLOUNT BROS. REALTY CO. v. EILENBERGER. [*] |
| Court | Florida Supreme Court |
Error to Circuit Court, Broward County; Vincent C. Giblin, Judge.
Action by C. D. Eilenberger against the Blount Bros. Realty Company. Judgment for plaintiff, and defendant brings error.
Reversed and remanded.
Syllabus by the Court
Maker's promise to pay attorney's fees is indemnity contract to protect holder against expenditures necessary to protect his interest. The promise of the maker of a promissory note to pay attorney's fees is a contract of indemnity to protect the holder of the note against expenditures necessarily made or incurred to protect his interest.
Recovery on maker's promise to pay attorney's fees cannot exceed expenditures holder has incurred for attorney's fees in collecting note. In a suit upon a promissory note the amount recovered from the maker upon his promise to pay attorney's fees cannot exceed the amount the holder of the note has paid, or obligated himself to pay, for the services of an attorney in collecting the note.
Maker's promise to pay attorney's fees in contingency which happened and holder's incurring of liability for attorney's services must be alleged and proved to authorize recovery thereon. To authorize the recovery of attorney's fees against the maker of a promissory note it must be alleged and proved, not only that the maker promised to pay a fee upon the happening of a stated contingency, and that such contingency has happened, but that the holder of the note has paid or incurred a valid liability for the services of his attorney.
C. E. Farrington, of Ft. Lauderdale, and Thomas M. Lockhart, of Rome, Ga., for plaintiff in error.
Hall, Johnson & English, of Ft. Lauderdale, for defendant in error.
This is an action in assumpsit upon a promissory note. Writ of error is taken to a judgment for plaintiff in which is included the sum of $1,000 as attorney's fees for the services of plaintiff's attorney.
The sole allegation of the declaration as to attorney's fees is that the defendant promised, '* * * in case suit should be brought for the collection thereof or the same had to be collected through an attorney, to pay attorney's fees for making such collection on demand after the date thereof, but did not pay the same.'
The provision of the note in respect to the payment of attorney's fees is: 'And in case suit shall be brought for the collection hereof, or the same has to be collected upon demand of an attorney, to pay reasonable attorney's fees for making such collection.'
At the trial, two attorneys testified that in their opinion $1,000 would be a reasonable fee for the services of plaintiff's attorney, after which the trial judge announced that he adjudged the sum of $1,000 to be a reasonable fee. There is no testimony that plaintiff had paid or expressly agreed to pay his attorney the sum of $1,000 for his services, nor any facts from which it appears that plaintiff is liable to his attorney in that sum quantum meruit for the reasonable value of his services under an implied contract.
In Brett v. First Nat. Bank of Marianna (Fla.) 120 So 554, it was held, in a mortgage foreclosure, that a contract to pay attorney's fees is one, not to enrich the holder of the note, but to protect and indemnify him against expenditures necessarily made or incurred to protect his interest. The rule is the same in actions at law as in suits in equity. The inclusion of attorney's fees as a part of a judgment is an allowance to the holder of the note, not to the attorney. The payee or holder is not permitted to make a profit on the debtor's promise to pay attorney's fees by recovering judgment for a larger amount than he actually pays, or is obligated to pay, his attorney. The object and intent of the contractual stipulation for attorney's fees is that the payee or holder of the note shall be at no expense in...
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Citizens Nat. Bank of Orange, Va. v. Waugh
...— A provision to pay attorney's fees has been held valid as a contract of indemnity in the following cases: Blount Bros. Realty Co. v. Eilenberger, 98 Fla. 775, 124 So. 41; Weigley v. Matson, 125 Ill. 64, 16 N. E. 881, 8 Am. St. Rep. 335; Judson v. Romaine, 8 Ind. App. 390, 35 N. E. 912; ......
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First Baptist Church of Cape Coral, Fla., Inc. v. Compass Constr., Inc.
...for which it is indemnified. See, e.g., Mallard v. Ewing, 121 Fla. 654, 164 So. 674, 678–79 (1935); Blount Brothers Realty Co. v. Eilenberger, 98 Fla. 775, 124 So. 41, 41 (1929); Brett v. First Nat. Bank of Marianna, 97 Fla. 284, 120 So. 554, 554 (1929); Nelson, 677 So.2d at 999–1000;Dunn v......
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Stockman v. Downs
...the order of denial. Early Florida cases held that a claim for attorney's fees should be pled specifically. Blount Bros. Realty Co. v. Eilenberger, 98 Fla. 775, 124 So. 41 (1929); United States Fire Ins. Co. v. Dickerson, 82 Fla. 442, 90 So. 613 (1921); Price v. Boden, 39 Fla. 218, 22 So. 6......
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Mallard v. Ewing
... ... But equity will tolerate no such arrangement ... See Blount Bros. Realty Co. v. Eilenberger, 98 Fla ... 775, 124 So. 41; Hatch v ... ...