Harvey v. Baldwin
| Decision Date | 02 May 1890 |
| Docket Number | 14,522 |
| Parties | Harvey v. Baldwin |
| Court | Indiana Supreme Court |
From the Cass Circuit Court.
D. B McConnell and S. T. McConnell, for appellant.
C. E Hale, for appellee.
This action is founded on a promissory note containing an unconditional promise to pay attorney's fees, and the controversy here waged relates solely to the question of the right to recover such fees.
It has long been settled that an unconditional promise to pay attorney's fees is valid.
It was competent to prove the value of the services of the attorney although there was no direct averment in the complaint that an attorney was employed, for the complaint avers that the reasonable fee is fifty dollars. As the note provides for the payment of attorney's fees it was enough to allege the breach of the contract, and state the damages generally; for where damages are expressly provided for in a contract they need not be laid as special damages. Strough v Gear, 48 Ind. 100; Roberts v. Comer, 41 Ind. 475; Johnson v. Crossland, 34 Ind. 334; Smiley v. Meir, 47 Ind. 559.
There was no error in refusing to permit the appellant to prove that the appellee was an attorney, and competent to prosecute the action himself. A man is not bound to be his own attorney, and this ancient rule of the law is stingingly expressed in an old and familiar adage.
It is immaterial whether the appellee did or did not assist the attorney employed by him to prosecute the action. He had a right to assist him, and the fact that he may have done so can not diminish the compensation of the attorney actually employed.
As we have seen, the question of attorney's fees is a question of damages, and the defendant had a right, under the general denial, to introduce evidence in mitigation of the damages. If, therefore, evidence tending to reduce the damages was excluded there was error. We can see no possible escape from the conclusion that there was error, for the appellant offered to prove that the attorney employed by the appellee had agreed to receive one-fourth of the attorney's fees. It has been held, and correctly, that the holder of a note can only recover what he agrees to pay his attorneys. Goss v. Bowen, 104 Ind. 207, 2 N.E. 704.
In Kennedy v. Richardson, 70 Ind. 524, the court said: "If the holder has agreed with his attorneys for smaller fees than were stipulated for, such agreement will enure to the...
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Citizens Nat. Bank of Orange, Va. v. Waugh
...and the holder can recover thereunder only such reasonable fees as he has actually paid or has become liable for. Harvey v. Baldwin, 124 Ind. 59, 24 N. E. 347, 26 N. E. 222; Lindley v. Sullivan, 133 Ind. 588, 32 N. E. 738, 33 N. E. 361; Starnes v. Schofield, 5 Ind. App. 4, 31 N. E. 480; Moo......
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Talbott v. English
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Talbott v. English
...upon a condition; second, the condition must be set forth in the instrument.” Churchman v. Martin, 54 Ind. 380, 388; Harvey v. Baldwin, 124 Ind. 59, 24 N. E. 347, 26 N. E. 222. The foregoing stipulation to pay attorney's fees is unconditional, and therefore valid. There was some evidence in......
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