English v. King

• Decision Date: 01 August 1924
• Citation: 39 Idaho 531,228 P. 325
• Parties: T. V. ENGLISH, Respondent, v. MRS. H. M. KING, Appellant
• Court: Idaho Supreme Court

228 P. 325

39 Idaho 531

T. V. ENGLISH, Respondent, v. MRS. H. M. KING, Appellant

Supreme Court of Idaho

August 1, 1924

ATTORNEY FEE-ERRONEOUS ALLOWANCE-INTEREST ON UNLIQUIDATED CLAIM FOR DAMAGES-CORRECTION OF JUDGMENT.

1. In an action to recover money loaned, where there was no stipulation between the parties for an attorney fee in case of suit, the allowance of such fee was error.

2. Error in respect to allowance of interest on amounts awarded by judgment reviewed and judgment modified accordingly.

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. A. H. Featherstone, Judge.

Action on account stated and for money loaned. Judgment for plaintiff. Modified and affirmed.

Affirmed. Costs awarded to appellant.

Lester S. Harrison and James A. Wayne, for Appellant.

The matter of attorneys' fees is left to agreement between attorney and client, and they are not properly assessed against the losing party except when allowed by statute, or provided for by a written agreement. (C. S., sec. 6576; Jenkins v. Commercial National Bank, 19 Idaho 290 113 P. 463.)

To entitle the plaintiff in a mortgage foreclosure suit to recover attorney's fees, he must show: (a) that by said mortgage the mortgagor contracted to pay attorneys' fees of the mortgagee in case of foreclosure; (b) that the plaintiff has agreed to pay his counsel a fixed or a reasonable sum for his services, and (c) the reasonableness of the fees claimed. (Broadbent v. Brumback, 2 Idaho 336, 16 P. 555; Porter v. Title G. & C. Co., 17 Idaho 364, 106 P. 299, 27 L. R. A., N. S., 111; Lewis v. Sutton, 21 Idaho 541, 122 P. 911.)

Fred D Crane and W. H. Hanson, for Respondent, cite no authorities.

MCNAUGHTON District Judge. McCarthy, C. J., and Budge and William A. Lee, JJ., concur.

OPINION

MCNAUGHTON, District Judge.

--This is a suit on two causes of action. The first is on an alleged account stated, dated July 20, 1920, in the sum of $ 1,283.08 and other items, and it is claimed these amounts were secured by the pledge of an automobile. The second cause of action is for an alleged indebtedness of $ 200, to secure which it is claimed a diamond ring was pledged.

Defendant, after denying the allegations of the complaint, sets up four counterclaims by way of cross-complaint. Only two of these need be considered. In one she claims $ 500 on account of furniture sold the plaintiff; in the other she claims plaintiff got possession of the automobile involved and exchanged its engine, to her damage in the sum of $ 1,500.

The court found for the plaintiff generally, but also found that defendant was entitled to a credit of $ 150 on her claim for furniture sold, and that plaintiff in exchanging the engine in the automobile had damaged defendant $ 170, and reduced the item of account stated in that amount.

The furniture was sold in May, 1921. The defendant was entitled to interest on this amount from May, 1921, to the day of trial, at seven per cent amounting to $ 17.50; but the court overlooked allowing this interest when he computed the judgment.

The court awarded an attorney's fee of $ 200 and included it in the judgment in the second cause of action. There was no stipulation between the parties for an attorney's fee in case of suit or action, and this allowance, therefore, was erroneous.

In the assignment of errors the appellant claims that a payment to the plaintiff in the sum of $ 125 in cash was not deducted,...