Carolina Spruce Co. v. Black Mountain R. Co.
| Decision Date | 18 March 1918 |
| Citation | 201 S.W. 770 |
| Parties | CAROLINA SPRUCE CO. v. BLACK MOUNTAIN R. CO. |
| Court | Tennessee Supreme Court |
Appeal from Chancery Court, Washington County; Hal H. Haynes, Chancellor.
Suit by the Carolina Spruce Company against the Black Mountain Railroad Company, with cross-bill by defendant. Decree for complainant, which, on appeal, was modified, and cross-complainant's solicitors move for an order fixing attorney's fees. Motion allowed.
Harr & Burrow, of Bristol, for Carolina Spruce Co. Cox & Taylor, Jas. J. McLaughlin, and J. R. Simmonds, all of Johnson City, and J. Bis Ray, of Burnsville, N. C., for Black Mountain R. Co.
On motion. In this cause (disposed of in an opinion, 201 S. W. 154) the solicitors of the cross-complainant Black Mountain Railway Company move the court to fix reasonable fees for their services in this cause. The motion is based upon a provision in respect to attorney's fee in the note in suit. This note was one collateral in form; that is, it stipulated that ten mortgage bonds were attached as collateral security, and for a sale thereof by the holder on the maker-pledgor's default. The note then recited:
"After the proceeds of any sale have been applied to the payment of, or a credit upon, this note, and after deducting costs and attorney fees, should any deficiency remain, the undersigned agrees to pay the same to the holder," etc.
The motion is resisted by the pledger company on the following grounds:
(a) The only provision for fees is for deduction after the foreclosure sale of the collateral, and no allowance should be made at this stage.
(b) If the debt is paid prior to the making of the sale on the remand then the condition upon which fees are to be paid cannot arise.
The contentions are to be resolved by the application of the principles that govern in cases of mortgages and trust deeds. Reasonable fees for a mortgagee's or trustee's attorney may be retained out of the proceeds of a foreclosure sale when provided for in the mortgage; such a provision being valid.
The provision in the notes is construed to be for the indemnity of the pledgee against loss and to enable it to recover the whole debt without his being onerated with the payment of the fees of counsel. 27 Cyc. 1501, 1782. The fair and reasonable implication is that, if the pledgee should be put to the necessity of overcoming legal obstructions, interposed by the pledgor, in order to bring the collateral bonds to sale, costs and attorney's...
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In re Keaton
...simply as additional debt or damages because the provision for attorney's fees is an indemnity contract. Carolina Spruce Co. v. Black Mountain R. Co., 139 Tenn. 248, 201 S.W. 770 (1917); LeLaurin v. Frost National Bank, 391 F.2d 687, 690 (5th The fee provision also says, in effect, that the......
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Bain, In re
...and deed of trust requires judicial inquiry to determine whether a claimed amount is reasonable. Carolina Spruce Co. v. Black Mountain Ry., 139 Tenn. 248, 250, 201 S.W. 770, 771 (1917). Under Tennessee law such a provision in a note is an indemnity contract, Carolina Spruce Co. supra. See Q......