Dow v. Updike

• Decision Date: 12 January 1881
• Citation: 7 N.W. 857,11 Neb. 95
• Parties: SIMON S. DOW, PLAINTIFF IN ERROR, v. UPDIKE BROTHERS, DEFENDANTS IN ERROR
• Court: Nebraska Supreme Court

7 N.W. 857

11 Neb. 95

SIMON S. DOW, PLAINTIFF IN ERROR, v. UPDIKE BROTHERS, DEFENDANTS IN ERROR

Supreme Court of Nebraska

January 12, 1881

ERROR to the district court of Adams county. Tried below before GASLIN, J.

REVERSED AND REMANDED.

A. T Ash, for plaintiff in error. No brief on file.

Batty & Ragan, for defendants in error, cited Wiley v Starbuck, 44 Ind. 298. Billingsley v. Dean, 11 Ind. 331. Sperry v. Horr, 32 Iowa 184.

OPINION

MAXWELL, CH. J.

The plaintiff brought an action in the district court of Adams county upon a promissory note, of which the following is a copy:

"$ 250.00. HASTINGS, NEB., July 20th, 1879.

"One hundred days after date, for value received, I promise to pay to the order of Updike Brothers two hundred dollars, together with interest thereon at the rate of ten per cent per annum from date till paid, and if I fail to pay this note or any part thereof when due, I promise to pay the holder thereof, in addition to the above named amount mentioned in this note, and at its maturity, a reasonable attorney's fee for instituting and prosecuting to judgment a suit on this note.

"SIMON S. DOW."

The second count of the petition sets forth the contract to pay attorney's fees, and alleges that the sum of $ 25 is a reasonable fee. To this count a demurrer was interposed, which was overruled and judgment rendered for the face of the note and interest, and $ 25 attorney's fee. The defendant brings the cause into this court by petition in error.

Sec. 5 of the act to amend chapter 34, General Statutes, entitled "Interest," approved Feb. 27, A. D. 1879, provides that "if a greater rate of interest than is hereinbefore allowed shall be contracted for or received or reserved the contract shall not therefore be void; but if in any action on such contract proof be made that illegal interest has been directly or indirectly contracted for, or taken, or reserved, the plaintiff shall only recover the principal, without interest, and the defendant shall recover costs; and if interest shall have been paid thereon, judgment shall be for the principal, deducting interest paid." Laws 1879, 113.

In the year 1873 "An act to provide for the allowance and recovery of attorney's fees in certain actions," was passed by the legislature. This act provided "that in all actions brought for the foreclosure of a mortgage, or upon a written instrument for the payment of money only, there shall be allowed by (to) the plaintiff upon a recovery of judgment by him a sum to be fixed by the court in addition to the judgment, not exceeding ten per cent of the recovery, as an attorney's fee, in all cases wherein the mortgage or other written instrument upon which the action is brought shall, in express terms, provide for the allowance of an attorney's fee." Gen. Stat., 98. This act was repealed in 1879, the law taking effect June 1, of that year. Laws 1879, 78. The defendant in error insists that the repeal of the act did not take away or impair the right to recover attorney's fees.

In the case of the State of Ohio v. Taylor et al., 10 Ohio 378, one Taylor borrowed $ 25,000, for which he executed a bond in proper form, secured by mortgage, but containing no agreement to pay attorney's fees. At the same time he executed a warrant of attorney on the same paper, to confess judgment for the amount, with seven per cent per annum, and five per cent thereon in addition for attorney's fees in case of suit being brought. A decree having been taken by default, the court of common pleas refused to include the attorney's fees in the decree. On appeal to the supreme court, the court say: "It must be admitted, if this agreement can be enforced, the statutes of Ohio regulating the rate of interest, whether upon loans by the fund commissioners or in other cases, are at once virtually repealed. * * Seven per cent is the maximum of interest the commissioners are authorized to contract for or receive for the forbearance of their...