Patterson v. Emerick
| Decision Date | 21 February 1899 |
| Citation | 21 Ind.App. 614,52 N.E. 1012 |
| Parties | PATTERSON et al. v. EMERICK. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Miami county; J. T. Cox, Judge.
Action by Louisa G. Emerick, for use and benefit of the First National Bank of Peru, Ind., against Samuel B. Patterson and others. There was a judgment for plaintiff, and defendants appeal. Affirmed.Charles A. Cole and De Witt C. Justice, for appellants. M. Winfield and Reasoner & O'Hara, for appellee.
Appellant Patterson leased from appellee certain premises, and, for his compliance with the terms of the lease on his part, executed a bond, with his co-appellants as sureties. The bond was conditioned that if appellant “shall well and truly observe and carry out the terms of said lease, and pay the rents as therein specified,” then the bond to be void. Suit was brought to recover certain rents, both the lease and the bond being made exhibits.
The first question discussed is the admission of certain evidence as to the value of attorney's fees. Appellant agreed in the lease to pay certain rent and attorney's fees for the collection thereof. The lease also provided that, if suit was brought by the lessor for possession, appellant should be liable for attorney's fees in said action. But this is not a suit for possession, nor is any condition attached to the payment of attorney's fees in the collection of rent. Appellant had expressly agreed in the lease to pay attorney's fees, and the bond secured the performance of the provisions of the lease by appellant. The penalty named in the bond is $1,200, and, as against the sureties, this was the limit of liability. In a hypothetical question as to the value of attorney's fees, the amount stated to the witness as being involved was “between twelve and thirteen hundred dollars.” As against the principal on the bond, the question was not open to objection. As against the sureties, the question should have limited the amount involved to the penalty of the bond. While the question was improper in that particular, yet, from the whole record, we cannot say that such error was committed as warrants a reversal of the case.
Complaint is next made of the court's refusal to give certain instructions to the effect that, upon the abandonment of the premises and the repudiation of the lease, it was the duty of appellee to take possession, and make the premises as remunerative as possible, and thus diminish as far as possible the loss accruing from appellant's breach of his...
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