Lehman, Durr & Co. v. Comer

• Decision Date: 10 June 1890
• Court: Alabama Supreme Court
• Parties: LEHMAN, DURR & CO. v. COMER ET AL.

8 So. 241

89 Ala. 579

LEHMAN, DURR & CO. v. COMER ET AL.

Supreme Court of Alabama

June 10, 1890

Appeal from chancery court, Bullock county; JOHN A. FOSTER, Judge.

Tompkins & Troy, for appellants.

G L. Comer, for appellees.

MCCLELLAN J.

On the former appeal in this case, (87 Ala. 362, 6 South. Rep. 264,) the sufficiency of the description and identification of mules attempted to be embraced in the mortgage, and all the evidence in relation thereto, were fully, minutely, and exhaustively considered in detail by the whole court; and we see no reason now for disturbing the conclusion then so deliberately reached that the instrument was inoperative as to any mules belonging to the mortgagor, because of insufficiency and uncertainty of description. We therefore adhere to our former opinion on this point. The question whether complainants are entitled to an allowance for attorney's fees paid, or agreed to be paid, for services rendered in the prosecution of this suit is to be determined by reference to the terms of the mortgage. The instrument contains two stipulations in regard to attorney's fees. The first of these is a part of the stipulation authorizing the mortgagees to sell on default in the payment of the sum secured ($7,000) by the mortgage, after advertisement, etc and the clause providing for an attorney's fee in that connection very clearly, we think, has reference to the services of an attorney in and about a sale made under the power, and not to services rendered in filing and prosecuting a bill of foreclosure in the chancery court. Bynum v Frederick, 81 Ala. 489. The other stipulation is much broader. Its terms are: "And I further agree to pay the attorney's fees and other expenses which may be incurred by said Lehman, Durr & Co. in the collection of said several sums by a foreclosure of the mortgage or otherwise, for the payment of which this conveyance is a lien." While this provision is in a clause of the mortgage which relates more especially to advances other than the $7,000, which constitutes the leading consideration for the conveyance, it very clearly, in our opinion, is not confined to attorney's fees paid in the collection of such other sums, but necessarily extends to the collection of all sums accruing to Lehman, Durr & Co. in the dealings contemplated and provided for in the instrument. Substantially the same stipulation was held to have this effect in the case of Harmon v....