Okla. City Dev. Co. v. Picard

Decision Date26 January 1915
Docket NumberCase Number: 4143
Citation146 P. 31,1915 OK 61,44 Okla. 674
PartiesOKLAHOMA CITY DEVELOPMENT CO. v. PICARD.
CourtOklahoma Supreme Court
Syllabus

¶0 1. MORTGAGES--Note and Mortgage--Construction. A note and mortgage given to secure the payment of the same are construed together as one contract.

2. SAME--Foreclosure--Attorneys' Fee--Right to Allow. In an action to foreclose a real estate mortgage, where the note secured thereby makes no provision for the payment of an attorney's fee in case of legal proceedings thereon, and the mortgage contains no agreement to pay attorney's fees, but in that part of it describing the note contains the following recital: " per cent. additional as attorneys' fees, in case of legal proceedings to collect"--held, that this recital in the mortgage does not amount to an agreement to pay an attorneys' fee, and is simply a misdescription of the mortgage note, and does not authorize the court to find and include in the decree of foreclosure a reasonable attorney's fee.

Error from District Court, Oklahoma County; W. R. Taylor, Judge.

Action by Sarah Picard against the Oklahoma City Development Company. Judgment for plaintiff, and defendant brings error. Modified and affirmed.

J. W. Bartholomew, for plaintiff in error.

A. T. Boys, for defendant in error.

GALBRAITH, C.

¶1 The appeal in this case is from a decree rendered in a suit on a promissory note, and foreclosing a real estate mortgage given to secure the same.

¶2 There is only one assignment of error argued; that is, that the trial court erred in including in the decree an attorney's fee of $ 400, which was agreed between the parties to be a reasonable fee, if an attorney's fee was authorized by the contract. The note in suit was a simple promissory note for the payment of $ 7,500, with interest at 8 per cent. per annum, payable semi-annually, and made no provision for the payment of an attorney's fee. The mortgage contained the following clause, upon which the court based the allowance of such fee:

"This conveyance is intended as a mortgage to secure the payment of one promissory note of even date herewith, for $ 7,500.00, due February 15th, 1911, made to Sarah Picard, or order, payable at the American National Bank, Okla. City, Okla., with 8% interest per annum payable semi-annually, and per cent. additional as attorney's fees, in case of legal proceedings to collect, and signed by Oklahoma City Development Company, by its authorized officers."

¶3 The note and mortgage are considered together as one contract ( Collins...

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13 cases
  • Westlake v. Cooper
    • United States
    • Oklahoma Supreme Court
    • February 12, 1918
    ...announced in this jurisdiction is that a note and a mortgage given to secure its payment are construed together (Okla. City Development Co. v. Picard, 44 Okla. 674, 146 P. 31; Sims v. Cent. St. Bank, 56 Okla. 129, 155 P. 878; First Nat'l Bank v. Howard, 59 Okla. 237, 158 P. 927); but so far......
  • Frickel v. Norval & Dial, Inc.
    • United States
    • Oklahoma Supreme Court
    • April 6, 1926
    ...1926 OK 313246 P. 381118 Okla. 41 FRICKEL v. NORVAL & DIAL, Inc.Case Number: 16533Supreme Court of ... Darrow Music Co., 69 Okla. 1, 169 P. 497; Edwards v. City National Bank of McAlester, 83 Okla. 204, 201 P. 233; Hartley et al. v ... 634, 142 P. 318; Oklahoma City Development Co. v. Picard, 44 Okla. 674, 146 P. 31; Sims et al. v. Central State Bank, 56 Okla. 129, ... ...
  • First Nat. Bank of Stigler v. Howard
    • United States
    • Oklahoma Supreme Court
    • June 27, 1916
    ...1916 OK 716158 P. 92759 Okla. 237 FIRST NAT. BANK OF STIGLER v. HOWARD.Case Number: 7586Supreme Court ... Sanner et al., 42 Okla. 634, 142 P. 318; Oklahoma City Development Company v. Picard, 44 Okla. 674, 146 P. 31); and the ... ...
  • Wester v. Lucas
    • United States
    • Oklahoma Supreme Court
    • April 7, 1936
    ...an action at once for the entire debt. * * *"See, also, F. B. Collins Inv. Co. v. Sanner, 42 Okla. 634, 142 P. 318; Oklahoma City Dev. Co. v. Pickard, 44 Okla. 674, 146 P. 31; Phillips v. Williams, 33 Okla. 766, 127 P. 1072: Flesher v. Hubbard, 37 Okla. 578, 132 P. 1080; Damet v. Aetna Life......
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