Broadbent v. Brumback

• Decision Date: 02 February 1888
• Parties: BROADBENT v. BRUMBACK ET AL
• Court: Idaho Supreme Court

16 P. 555

2 Idaho 366

BROADBENT v. BRUMBACK ET AL

Supreme Court of Idaho

February 2, 1888

PRACTICE.-An allegation in the complaint not denied in the answer is sufficient to sustain a finding that the facts stated therein are true.

PLEADING-FORECLOSURE OF MORTGAGE.-In an action to foreclose a mortgage it is not necessary to allege in the complaint notice to the mortgagor that the plaintiff has elected to consider the whole sum due for default in payment of installments or interest.

ATTORNEY'S FEE-REASONABLE ALLOWANCE.-A stipulation in a mortgage for allowance for an attorney's fee in case of foreclosure is valid, but should be enforced only for a reasonable amount. In determining what amount is reasonable the court should allow no more than is actually received or contracted for by the attorney for his services.

FINDINGS OF COURT-CONCLUSIVE.-The findings of the court should be responsive to the allegations in the pleading and a finding upon such allegation is conclusive as to each item of evidence offered to sustain it.

(Syllabus by the court.)

APPEAL from District Court, Ada County.

Affirmed.

John M Lamb, for Appellants.

When the principal sum may become due, upon a failure to pay interest at the option of the mortgagee, the mortgagee should have exercised his option, and given notice of it before the commencement of the suit to foreclose. (Basse v Gallegger, 7 Wis. 442, 76 Am. Dec. 225; Marine Bank v. International Bank, 9 Wis. 57; Rosseel v Jarvis, 15 Wis. 571; Jesup v. Bank, 14 Wis. 331.) Stipulations for attorneys' fees are against public policy and void. (Bullock v. Taylor, 39 Mich. 137, 33 Am. Rep. 356; Van Marter v. McMillan, 39 Mich. 304; Myer v. Hart, 40 Mich. 517, 29 Am. Rep. 553; Vosburgh v. Lay, 45 Mich. 455, 8 N.W. 91; Botsford v. Botsford, 49 Mich. 29, 12 N.W. 897.) A stipulation in a mortgage allowing counsel fees for a foreclosure does not entitle the plaintiff to counsel fees unless he has paid them or become liable for them. (Reed v. Catlin, 49 Wis. 686, 6 N.W. 326; Bank v. Treadwell, 5 Cal. 379.) He cannot recover such fees for personally prosecuting his foreclosure. (Patterson v. Donner, 48 Cal. 369; Reed v. Catlin, 49 Wis. 686, 6 N.W. 326.) The amount fixed on the note or mortgage is a mere limitation. It is in the nature of a penalty and fixes merely the amount beyond which the court will not go. (Carriere v. Minturn, 5 Cal. 435.) A general finding that all the allegations of the complaint are true is not a compliance with the law. (Johnson v. Squires, 53 Cal. 37; Bank v. Treadwell, 55 Cal. 380; Breeze v. Doyle, 19 Cal. 102; Ladd v. Tully, 51 Cal. 277; Hardenburg v. Hardenburg, 54 Cal. 591.)

Wood & Wilson and Richard Z. Johnson, for Respondent.

A promise to pay for services may only be implied by the courts when they were rendered under such circumstances as authorized the party performing to entertain a reasonable expectation of payment by the party soliciting performance. (Davidson v. Gaslight Co., 99 N.Y. 559, 566, 567, 2 N.E. 892; Pew v. Bank, 130 Mass. 391, 395; Sawyer v. Bank, 6 Allen, 209; Crane v. Baudouine, 55 N.Y. 256, 260; Potter v. Carpenter, 76 N.Y. 157, 159.) Appellant could not set up as a counterclaim a demand against respondent and another jointly. (Howard v. Shores, 20 Cal. 281; King v. Wise, 43 Cal. 635; Waterman on Setoff, secs. 200, 383.) The right of the parties, in the absence of any statute to the contrary, to contract for the payment of a reasonable attorney's fee by the debtor, in case his creditor is put to the expense of collecting his debt by law, rests upon the same ground as the right to make any other contract not prohibited by law, or contra bonos mores. (Wilson Sewing-machine Co. v. Moreno, 6 Saw. 25, 40, 7 F. 806, Fed. Cas. No. 17, 853a, and cases cited; Bank v. Ellis, 6 Saw. 97, 100, 2 F. 44, Fed. Cas. No. 859.) When a promissory note, payable at a future time, provides for the payment of interest at certain times, and contains a clause that, if default be made in the payment of the interest at such time, then the note shall immediately become due, at the option of the holder, a failure to pay the interest makes the whole amount of the note due absolutely, at the option of the holder, if he so elect, without any notice from the holder to the payors. In such case the holder has no duty to perform to the payor, and the latter has no excuse to delay payment. (Whitcher v. Webb, 44 Cal. 127, 130.) Any decisive act of the party, with knowledge of his rights and of the facts, determines his election, in the case of conflicting and inconsistent remedies. (Washburn v. Insurance Co., 114 Mass. 176; Connihan v. Thompson, 111 Mass. 272.)

BUCK J. Hays, C. J., and Broderick, J., concurring.

OPINION

BUCK, J.

This was an action to foreclose a mortgage tried at the April term, 1887, in Ada county, and brought into this court on an appeal from the judgment.

The appellants assign thirteen errors, but group them in their brief, and rely upon five, to wit: 1. Error in overruling a general demurrer to the complaint; 2. Error in overruling a special demurrer to complaint; 3. Error in finding the note and mortgage sued on were valid; 4. Error in not finding upon all the material issues raised by the findings; 5. Error in the findings of fact, in that they are not supported by the evidence, and are too general.

The first error assigned, to wit, error in overruling defendants' general demurrer to the complaint, is based upon two propositions: 1. That the complaint contains no allegation of the failure of the defendant to pay the interest due on the mortgage, or any installment thereof, or that the mortgagee had elected to consider the whole sum due; 2. That the complaint contained no allegation that the mortgagee had given notice to the mortgagor that he elected to consider the whole amount secured by the mortgage due. That portion of the complaint alleging a breach in the conditions of the mortgage is as follows: "That eight thousand dollars, the principal sum mentioned in said promissory note and mortgage, together with interest thereon at the rate of one and one-fourth per cent per month from said eleventh day of March, 1885, still remains unpaid, in whole and in part, from said defendants to this plaintiff, and the same is now due and payable." The condition in the mortgage is in the following words: "But in case default be made in the payment of the said principal or interest, or any installment of interest, as provided, then the whole sum of principal and interest shall be due, at the option of the said party of the second part, and suit may be immediately brought, and a decree be had to sell said premises," etc. While the statement of the breach in the complaint is not so exact and clear as the highest art in pleading might prescribe, yet its fault, if any, seems to be that it is not sufficiently definite. This defect does not, however, go to the substance of the pleading, and is not sufficient to sustain a general demurrer.

The second proposition of the appellants that the mortgagee cannot commence his action to foreclose until he has given the mortgagor notice that he has exercised the option specified in the conditions of the mortgage and that he had elected to consider the entire sum secured by the mortgage due, and that the complaint must allege such notice, is elaborately considered in the briefs. It seems clear that in Wisconsin it is a rule of practice established by repeated adjudications that the complaint must allege that the mortgagee has elected to consider the whole amount due, and that he has notified the mortgagor of such election. (Basse v. Gallegger, 7 Wis. 442, 76 Am. Dec. 225; Marine Bank v. International Bank, 9 Wis. 57; Rosseel v. Jarvis, 15 Wis. 571.) We are unable to find that this rule of practice extends beyond the state of Wisconsin. "In Whitcher v. Webb, 44 Cal. 127, it is held that the mortgagor was not entitled to notice, in advance of commencing the action; that if he failed to pay the interest, that the mortgagee would insist upon his right to the whole debt. He was bound to know that that consequence would follow." In Dean v. Applegarth, 65 Cal. 391, 4 P. 375, the same doctrine is enunciated. In Hunt v. Keech, 3 Abb. Pr. 204, the court holds that the commencement of the suit to foreclose is a sufficient notice of the determination that the mortgagee intends to treat the whole sum as due Noyes v. Clark, 32 Am. Dec. 620, note, and Cardiff v. Brokow, 7 Ill.App. 647, are to the same effect. In Trust Co. v. Munson, 60 Ill. 371, the court says, where like provisions were in a deed of trust: "The deed of trust did not require any notice to be given to the debtor himself of the exercise of the option to make the whole indebtedness due. The maker of the deed knew that such a contingency was liable to occur at any time during a default of payment. If he wished personal notice of it to himself to be a condition precedent to the exercise of the power of sale, he should have so provided in his deed. To add to the power such a condition by implication might wrongfully disappoint the expectations of the creditor. To require a personal notice to the debtor, who, at the time, might be in distant or unknown parts, might create a very inconvenient delay in the collection of a claim evidently intended by the party to be speedy, and the creditor might well have refused a security trammeled by such a condition." These observations commend themselves to the court as being reasonable and equitable. In the case at bar the provision is that the principal and interest shall be due at the option of the mortgagee, and suit may be immediately brought. We think, upon principle and upon authority, notice to the mortgagor of the election of the mortgagee...