Drew v. Hobbs

• Decision Date: 17 May 1932
• Citation: 141 So. 596,104 Fla. 427
• Parties: DREW v. HOBBS et al.
• Court: Florida Supreme Court

141 So. 596

104 Fla. 427

DREW v. HOBBS et al.

Florida Supreme Court

May 17, 1932

En Banc.

Error to Circuit Court, Hillsborough County; F. M. Robles, Judge.

On petition for rehearing.

Affirmed and remanded on rehearing, with directions to amend judgment.

For former opinion, see 140 So. 211.

COUNSEL T. Paine Kelly, of Tampa, for plaintiff in error.

Macfarlane Pettingill, Macfarlane & Fowler, of Tampa, for defendants in error.

OPINION

DAVIS, J.

In this case a petition for rehearing suggests that the recovery of attorney's fees should not be sustained, because the attorney's fees provided for in the notes are only recoverable in an action on the notes per se, and not for services performed in a suit not brought directly on such notes, but on the implied promise of a joint adventure to pay the amounts represented by them.

The question of recovery of attorney's fees was not stressed by plaintiff in error either in his briefs or oral argument although it cannot be said that the question of their allowance was not sufficiently raised in a general way.

Further consideration of this point has convinced us that on the authority of Brett v. First Nat. Bank, 97 Fla. 284 120 So. 554, and Blount Bros. v. Eilenberger, 98 Fla. 775, 124 So. 41, attorney's fees must be held to be an indemnity which can only be recovered in a suit brought in the manner and form contemplated by the indemnity contract to pay attorney's fees; that is, in a suit brought directly on the notes to enforce their payment and discharge of the notes by the makers.

Defendants in error in their briefs and oral argument took the position which we upheld as correct in our opinion heretofore filed that plaintiff's suit was not a suit on the notes or mortgage, but was a suit on the implied promise of a joint adventurer to pay an amount measured by the amount of the notes.

That being so, we must sustain plaintiff in error's point that attorney's fees are not recoverable in the present case, and amend our former judgment by requiring the court below to eliminate such attorney's fees from plaintiff's judgment.

The other points presented by the petition for rehearing have been carefully considered, but, in view of what we had to say in our former opinion, we are unable to perceive any reason for changing the position there taken by us.

The judgment of affirmance is therefore adhered to in all particulars, except as to the...