Jaudon v. Equitable Life Assur. Soc. of U.S.

• Decision Date: 07 August 1931
• Citation: 102 Fla. 782,136 So. 517
• Parties: JAUDON et ux. v. EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES.
• Court: Florida Supreme Court

136 So. 517

102 Fla. 782

JAUDON et ux. v. EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES.

Florida Supreme Court

August 7, 1931

Commissioners' Decision.

Suit by the Equitable Life Assurance Society of the United States against J. F. Jaudon and his wife. Decree for the complainant and the defendants appeal.

Reversed on condition in accordance with opinion.

Syllabus by the Court.

SYLLABUS

The validity of a mortgage assignment, regular upon its face exhibited in bill of assignee foreclosing mortgage, not properly raised by demurrer.

While complainant's solicitor is improper witness as to 'reasonableness' of amount of his fee in foreclosure proceedings, he may testify as to an implied or express 'agreement' with complainant employing him to bring suit and as to services rendered.

Complainant's liability for reasonable solicitor's fee in foreclosure may be based upon an implied contract arising from his employment and the acceptance of the services rendered.

Provision for solicitor's fee in mortgages is intended as an indemnity to protect holder's interest, and, in case of suit, the burden is upon holder to establish the basis for computing the amount to be paid his solicitor.

While the mere filing of foreclosure suit may sufficiently show complainant's election to exercise his option to accelerate the whole mortgage debt, yet, where there is substantial evidence of waiver, a court of equity may require reasonable notice and an opportunity given defendant to make payments actually due before enforcing the whole debt.

While waiver does not always arise from mere forbearance for a reasonable time to declare the whole mortgage debt due, it may be inferred or it may arise from mortgagee's neglect or forbearance for a reasonable time to exercise his option to declare all amounts due and payable.

A mortgagee may by his conduct, inducing mortgagors to believe and act upon the belief that he will not enforce his mortgage, be estopped as to them without notice or some manifestation of his intention to declare the whole payable unless installments due are paid.

Where the holder of a mortgage does not, within a reasonable time after default in payment of installments, elect to exercise his option to accelerate and declare whole mortgage debt due and payable, equity may require a reasonable notice to mortgagors and an opportunity given to pay all installments they are in duty bound to pay before filing suit to enforce whole mortgage debt.

Where a complainant agrees to accept, in lieu of accelerating the whole debt, an offer of defendants to pay all past-due installments and accrued costs of filing bill of foreclosure complainant's solicitor thereupon becomes entitled only to such reasonable fee as would accrue for services rendered up to the time such payments are made, and not such fee as would be reasonable had complainant not accepted the offer and the foreclosure consummated for whole debt.

Where a complainant agrees to accept past-due payments and accrued costs in lieu of accelerating the whole mortgage debt, his solicitor should not be the only arbiter as to amount of his fee up to that stage of the proceedings. Appeal from Circuit Court, Dade County; W. L. Freeland, judge.

COUNSEL

Paul C. Taylor and Carroll W. Fussell, both of Miami, for appellants.

John M. Murrell, of Miami, for appellee.

OPINION

ANDREWS C.

The only questions presented for review in this mortgage foreclosure proceeding are (1) that the court erred in awarding solicitor's fee to complainant's solicitor, and (2) that the assignment of the mortgage from B. C. Smith Company to complainant has not been shown by competent evidence.

Disposing of the latter question first, it appears from the record that the assignments of the mortgage and indorsements of the notes from B. C. Smith Company to complainant were duly executed in accordance with the law and rules governing assignment of mortgages and indorsement of notes. Such assignments and indorsements were regular on their face, and are considered prima facie valid, and the burden is upon one who charges that they were not properly executed or were executed without authority to establish it. Sections 5743 and 6818, Compiled General Laws of Florida 1927. No invalidity has been shown by the demurrer. See Bland v. Fidelity Trust Co., 71 Fla. 499, 71 So. 630, L. R. A. 1916F, 209; 2 Jones on Mortgages (8th Ed.) 1911.

The circumstances involved in the case of Chestnut v. Robinson, 85 Fla. 87, 95 So. 428, cited and relied upon by appellants, are quite unlike those arising here, and are therefore not controlling in the instant case.

Reverting now to the first point raised that under the bill and proofs in this case defendants are not liable for any attorney's fees, it is observed that the bill of foreclosure alleges:

'That said mortgage has been placed in the hands of complainant's solicitor whose name appears signed to this Bill of Complaint for the purpose of foreclosing said mortgage, and that by reason thereof complainant has incurred, and has obligated itself to pay a reasonable and just fee to said solicitor for his services in collecting the moneys secured by said mortgage and for the foreclosure of same.'

It is observed that the notes and the mortgage provide that the makers agree to pay all costs of collection, including reasonable attorney's fees, 'in case the principal of this note or any payment on the principal or any interest thereon is not paid at the respective maturity thereof.'

Appellant contends that, conceding for the sake of argument that a sufficient allegation appears as a basis in the bill of complaint for solicitor's fees, the proofs, as shown by the testimony as to any agreement between complainant and his solicitor, are insufficient upon which to base such fees.

The only testimony offered on that issue at the hearing was that of complainant's solicitor, who testified that 'the complainant has employed me to foreclose the mortgage, and under the terms of the note, I am entitled to a reasonable fee, and the complainant claims a reasonable attorney's fee,' and that the mortgage was handed to him by Earl S. Harwick, the loan agent of the complainant, Equitable Life Assurance Association, in Miami. This was not, however, all the evidence on that issue, as the record itself shows that certain services were rendered in filing the bill by the solicitor--assuming that the drafting and filing of the suit was necessary and proper under the circumstances of this case.

This court has held that:

'Counsel for complainant is an improper witness to testify as to the reasonableness of fees to be charged by him for services rendered to complainant in a pending suit.' Kennedy v. Kennedy (Fla.) 134 So. 201, 202; Flournoy v. Smith, 84 Fla. 553, 94 So. 503.

It will be noted that the above principle of law has reference to testimony as to the 'reasonableness' of fee and not as to 'agreement' to pay a reasonable fee.

Appellant contends that under the decision of Brett v. First National Bank, 97 Fla. 284, 120 So. 554, the above allegations and proof in the instant case are not sufficient upon which to base any finding as to solicitor's fees.

In that case, the only allegation in the bill referring to attorney's fees was that 'the said note and mortgage were placed in the hands of' its solicitors 'for collection and foreclosure,' and the only evidence adduced on that issue was the testimony of two disinterested attorneys, who testified only as to reasonableness of the amount to be allowed as attorney's fee. This court held that such allegation and proof, in cases where properly raised and objected to, were not sufficient upon which to base a decree for solicitor's fees.

In the more recent case of Blount Bros. Realty Co. v. Eilenberger, 98 Fla. 775, 124 So. 41, the sole allegation as to attorney's fees was that:

'Defendant promised, '* * * in case suit should be brought for the collection thereof or the same had to be collected through an attorney, to pay attorney's fees for making such collection on demand after the date thereof, but did not pay the same.”

And the note provided:

'And in case suit shall be brought for the collection hereof, or the same has to be collected upon demand of an attorney, to pay reasonable attorney's fees for making such collection.'

It was there held that neither the allegation nor proof showed that 'plaintiff' had paid, or had promised to pay, or was liable upon an implied contract to pay, attorney's fees; and the cause was reversed and remanded. In the same case it was held that an 'allegation and proof that a valid liability exists is sufficient,' and that it may rest upon either an express or implied contract between plaintiff and his solicitor as to the latter's compensation, 'or upon plaintiff's liability to pay his attorney on a quantum meruit basis upon the implied contract which arises from the employment of the attorney by the plaintiff, and the performance by the attorney and acceptance by the plaintiff of his services.' See Berns v. Harrison (Fla.) 131 So. 654.

Now, as to the allegations and proofs in the instant case, we think that they were at least sufficient to show that complainant is liable to pay a reasonable fee to its solicitor on a quantum meruit based upon an implied contract which arose from the employment, the performance of the service, and the acceptance of it.

There has been presented on this appeal another and more serious question having reference especially to whether complainant's solicitor was as a matter of equity entitled to the full $600 fee awarded. It will be observed that defendant's contention on that point is set up by the answer, and that testimony adduced on that issue was to some...