Exch. Bank of Dallas v. Tuttle

• Citation: 23 P. 241,5 N.M. 427
• Parties: EXCHANGE BANK OF DALLASv.TUTTLE
• Decision Date: 24 January 1890
• Court: Supreme Court of New Mexico

5 N.M. 427

23 P. 241

EXCHANGE BANK OF DALLAS

v.TUTTLE

Supreme Court of the Territory of New Mexico.

Jan. 24, 1890.

Appeal from district court, Socorro county; BRINKER, Judge.

Action by the Exchange Bank of Dallas against L. B. Collins, C. E. Odem, and W. W. Tuttle. Judgment was rendered against W. W. Tuttle, and he appealed.

Judgment for attorney's fees may be given without the introduction of evidence as to the amount of such fees, when the note specially provides for 10 per cent. for attorney's fees.

Neill B. Field, for appellant.

Isaac S. Tiffany, for appellee.

MCFIE, J.

This suit was brought in the district court for Socorro county upon the following promissory note: “$3,500. Dallas, Texas, Oct. 23d, 1885. On December 1, 85, after date, without grace, we or either of us promise to pay to the order of Exchange Bank, Dallas, thirty-five hundred dollars, for value received, at the Exchange Bank of Dallas, with interest from maturity at the rate of twelve per cent. per annum, with ten per cent. for attorney's fees in case this note is placed in hands of an attorney for collection, or collected by suit. L. B. COLLINS. C. E. ODEM. W. W. TUTTLE.” The declaration, in addition to the usual demand for debt, interest, and costs, asked judgment for attorney's fees, as provided by the terms of the note. Collins and Odem were not served with process, but W. W. Tuttle entered his appearance, and filed one plea, that of non assumpsit. The defendant, Tuttle, waived a jury, also written finding of facts, and consented to trial by the court, which was had, and the following judgment was rendered by the court at the November term, A. D. 1888: “At this day, this cause having been heretofore submitted to the court, and the court being now sufficiently advised, doth find the issues for the plaintiff, and assess its damages against defendant, Tuttle, at the sum of four thousand seven hundred thirty and 00-100 dollars, and also the sum of three hundred and fifty dollars as attorney's fees; wherefore it is ordered and adjudged that plaintiff recover of defendant W. W. Tuttle the sum of four thousand seven hundred thirty and 00-100 dollars damages, with 12 per cent, interest from this day until paid, and also the sum of three hundred and fifty dollars as attorney's fees, together with its costs in this behalf laid out and expended, to be taxed herein, and that execution issue therefor.” To reverse this judgment, the case is brought to this court by appeal.

Appellant seeks a reversal solely upon the ground that the court gave judgment for attorney's fees, and assigns the following errors: (1) That the district court erred in its finding that the appellant was liable for attorney's fees on the contract sued on; (2) that the district court erred in giving judgment against the appellant for three hundred and fifty dollars attorney's fees, when there was no evidence of the value of the attorney's fees before the court; (3) that the judgment of the district court against this appellant is wholly without evidence to support it.

The note was the only evidence offered by the plaintiff, and, although the entire cause of action was put in issue by defendant's plea, no evidence was offered in support of the plea. The introduction of the note in evidence was sufficient to warrant a judgment for plaintiff for the amount of the note, interest, and costs. We are now called upon to say whether or not the court erred in allowing attorney's fees as specified in the note.

Let us consider the first assignment of error: “That the district court erred in its finding that the appellant was liable for attorney's fees on the contract sued on.” This question of the allowance or disallowance of attorney's fees provided for in promissory notes and written contracts has been before the courts for many years in this country, and many learned opinions of able judges and courts have been rendered on both sides of the question. An examination of the authorities will show, however, that the fruitful cause of this contrariety of opinion is due mainly to the varied forms in which the question is presented to the courts. One instrument sued on differs in its provision, upon that subject, from that of another. Therefore the phraseology of a decision, apparently applicable, may be, and often is, found to be inapplicable when examined in the light of the facts before the court. Take the case of Oelrichs v. Spain, 15 Wall. 231, cited by appellant. The case is sometimes cited as showing that the supreme court of the United States is opposed to the allowance of attorney's fees in any case, whether provided for in the instrument or not; but an examination of that case shows that it was a suit on an injunction bond, with no provision in the instrument for attorney's fees, and the question in that case was whether attorney's fees should be allowed as part of plaintiff's damages, which is a very different proposition. The case of Bullock v. Taylor, 39 Mich. 137, cited by appellant, is not in point in this case. The notes in that case provided that “the undersigned agree to pay $15 attorney's fee, over and above all taxable costs,” each, on six small notes, two of them for $41.50 each. The surety did not sign the notes, but signed a bond as surety for the makers. The court says, among other things: “The surety insists that such notes are not within the terms of his undertaking. *** (2) Because they provide for the payment of an attorney's fee, to which he has never consented.” Again the court says: “In this state, the attorney's fees which the successful party is permitted to recover in courts of record are prescribed by statute or by rule of court. In justices' courts, none are given except in a few special cases. The policy of our law is to limit such recovery to a very moderate sum in every case where...