Interstate Motor Freight System v. Gasoline Equipment Co.

• Decision Date: 05 January 1940
• Docket Number: 16185.
• Citation: 24 N.E.2d 418,107 Ind.App. 494
• Parties: INTERSTATE MOTOR FREIGHT SYSTEM v. GASOLINE EQUIPMENT CO., Inc.
• Court: Indiana Appellate Court

24 N.E.2d 418

107 Ind.App. 494

INTERSTATE MOTOR FREIGHT SYSTEM v. GASOLINE EQUIPMENT CO., Inc.

No. 16185.

Appellate Court of Indiana, in Banc.

January 5, 1940

Fred I. King, of Indianapolis, and Warner, Norcross & Judd, of Grand Rapids, Mich., for appellant.

Ralph B. Gregg and Edw. J. Fillenwarth, both of Indianapolis, for appellee.

STEVENSON Judge.

This action was commenced by the appellee to recover upon a promissory note executed by the appellant as part payment for the purchase price and installation of a 15,000 gallon gasoline storage tank and equipment. The appellee's amended complaint alleged the execution of the note and payment of four monthly installments thereon; that there was yet due the sum of $616.26 principal, and interest at the rate of six per cent per annum from June 21, 1936, the date of default. The complaint also prayed an allowance of $300 for attorney's fees.

To this complaint the appellants filed an answer in two paragraphs the first being in general denial, and the second a plea of payment. There were also a paragraph of answer denominated a "set-off" and a counter claim in two paragraphs. The answer denominated a "set-off" admitted the execution of the note sued upon but alleged that said note was given as part payment of the purchase price for a 15,000 gallon gasoline storage tank and the complete installation thereof on the premises of the appellant in the city of Toledo, Ohio. It further alleged that the appellee had failed to install said tank in a proper manner and had negligently failed to anchor the same, as a result of which the tank, on or about the thirtieth day of March, 1936 became dislodged, and floated out of the ground. That the appellee failed and refused to replace said tank and the appellant was required to and did spend $541.20 in replacing and repairing said storage tank. The counterclaim filed by the appellant claimed damages in the sum of $1600 on account of the alleged failure to properly install and anchor said storage tank. To these paragraphs of "set-off" and counter claim the appellee filed replies in general denial. On the issues thus formed the cause was submitted to the court for trial, and the court after hearing the evidence rendered judgment for the appellee on the note sued upon for $651.47, principal and interest, and $300 attorney's fees.

A motion for new trial was filed, overruled, and this appeal has been perfected. The appellant assigns as error in this court the overruling of the appellant's motion for new trial, and contends that the amount of recovery is too large and that the judgment of the court is not sustained by sufficient evidence and is contrary to law.

The appellant first contends that there was no evidence offered as to the services rendered by the appellee's attorney and in the absence of such proof there can be no allowance for attorney's fees. The only evidence as to the value of the attorney's fees which appears in the record is the testimony of H. Nathan Swaim, who testified that he was a practicing attorney in Indianapolis and familiar with the fees charged by attorneys generally in actions for the collection of notes. A hypothetical question was then asked Mr. Swaim in which there was detailed the various steps which the attorneys had followed in the preparation of the pleadings and the trial of this case. The witness testified, basing his opinion upon the facts recited, that the value of such services was $350.

While it is true that the appellee did not offer evidence in support of all facts assumed in the hypothetical question, yet the question detailed many facts with reference to the pleadings and taking of depositions and the trial of the case about which the court could take judicial notice. The pleadings were prepared and filed by the attorneys for the appellee and were before the court. The note described in the question was in evidence. The attorneys were present in court trying the law suit. It is apparent that the hypothetical question was addressed to and described these particular services.

It has been repeatedly held in this state that where the amount of attorney's fees is not fixed in the note, the amount thereof must be established by proper evidence. Starnes et al. v. Schofield et al, 1892, 5 Ind.App. 4, 31 N.E. 480; Shoup v. Snepp et al., 1899, 22 Ind.App. 30, 53 N.E. 189; Lindley v. Sullivan, 1893, 133 Ind. 588, 32 N.E. 738, 33 N.E. 361. But where the note provides for the payment of attorney's fees, however, it is not incumbent upon the plaintiff to prove the actual employment of counsel by him where the attorneys are actually present in court seeking to enforce the collection of such obligation. 11 C.J.S., Bills and Notes, § 653, p. 47. As was said by the Supreme Court of Wyoming: "The proof in this case shows that 10 per cent. was a reasonable sum to be allowed, and this is the amount allowed herein by the court. We do not think it was necessary to introduce evidence showing the employment of counsel by respondent bank, or that a reasonable attorney fee was to be paid to them. Counsel for respondent are officers of the court and presumably appeared in court as counsel representing their clients, and presumably their appearance and the services rendered by them were with full authority to do so, either under an express or implied promise to receive reasonable compensation for such services." Farmers' State Bank v. Haun, 1924, 30 Wyo. 322, 222 P. 45, 51.

The same principle is announced by the Court of Civil Appeals of Texas in the following language: "It is held in ...