Buchanan v. Townsend

• Decision Date: 17 April 1891
• Parties: BUCHANAN v. TOWNSEND.
• Court: Texas Supreme Court

16 S.W. 315

BUCHANAN v. TOWNSEND.

Supreme Court of Texas.

April 17, 1891.

Appeal from district court, Jack county.

Nicholson & Nicholson, for appellant. Stark & Stark and W. E. Taylor, for appellee.

HENRY, J.

This suit was brought by appellant to enjoin the sale of certain property under a deed of trust given by him to secure a promissory note executed by him to the appellee. The defendant in his answer sought a judgment upon the note, and also for another sum of $75, evidenced by an accepted order given by the plaintiff to the defendant. The note was copied in the answer. It was dated on the 1st day of April, 1885, and was made payable on the 1st day of May, 1886, for the sum of $470, with interest after maturity at the rate of 12 per cent. per annum, and contained a stipulation that, "in case of legal proceedings on this note, I agree to pay ten per cent. on the amount for attorney's fees." The jury before whom the case was tried returned the following verdict: "We, the jury, find for the defendant the sum of 445 dollars, with interest on the same from May 1st, 1886, at the rate of 12 per cent. and attorney's fees. We, the jury, further find the payment of same, secured by a lien and deed of trust on aforesaid described sheep. [Signed] H. T. GARNER, Foreman. We, the jury, further find for defendant on accepted order 75 dollars. [Signed] H. T. GARNER, Foreman." Upon this finding a judgment was entered in favor of the defendant for $445, with interest thereon from the 1st day of May, 1886, at the rate of 12 per cent. per annum, "and the further sum of ten per cent. on said amount as attorney's fees," with a foreclosure of the lien of the deed of trust for so much of the judgment, and for the further sum of $75 without lien. Appellant complains of the judgment for attorney's fees, and contends that it was unwarranted, because the verdict did not in any manner specify what amount was found therefor, and was therefore void for uncertainty. The verdict left both the interest and the amount of the attorney's fee to be ascertained by mathematical calculations. The amount of the note and the rate of interest and period for which it was to be calculated, were shown by the verdict, and the amount of the judgment to be entered upon it was capable of exact ascertainment. The amount of attorney's fee was equally certain and as easily calculated. In the case of Doss v. Griswold, 1 Tex. 99, this question was before this court. It was then said: "Another...