Sarasota Pub. Co. v. E.C. Palmer & Co.
| Decision Date | 30 June 1931 |
| Citation | 102 Fla. 303,135 So. 521 |
| Court | Florida Supreme Court |
| Parties | SARASOTA PUB. CO. v. E. C. PALMER & Co., Limited. |
Error to Circuit Court, Sarasota County; Paul C. Albritton, Judge.
Action by E. C. Palmer & Co., Limited, against the Sarasota Publishing Company. Judgment for plaintiff, and defendant brings error.
Affirmed on condition of remittitur.
COUNSEL John B. Singeltary, of Bradenton, for plaintiff in error.
Frank Redd, of Sarasota, for defendant in error.
In this case the suit was on a note which provided for attorney's fees in the sum of 10 per cent. in the event of default in the payment of the note. In regard to this item it was alleged in the declaration as follows:
'That because of the failure of said defendant to pay said note as aforesaid, the same has been placed in the hands of an attorney for collection and suit instituted thereon; and the plaintiff claims the principal and interest on said note, together with the ten per cent attorney's fee provided for therein on the principal and interest.'
There was no allegation in the declaration that the plaintiff had obligated to pay the attorney's fees in any sum whatever. The contract to pay attorney's fees is a contract for indemnity. Brett v. First National Bank, 97 Fla 284, 120 So. 554; Brooks v. Roberts, 97 Fla. 374, 120 So. 765; Winchester v. Hak, 98 Fla. 1071, 124 So. 812.
Default was entered against the defendant for failure to plead answer or demurrer and, thereafter, on the 12th day of March, 1929 final judgment was entered pursuant to default by the clerk of the court in which was included the sum of $188.50 for attorney's fees. The record discloses no evidence to have been submitted to the clerk in proof of the plaintiff's right to recover attorney's fees, and therefore the clerk was without authority to enter a judgment for attorney's fees if under conditions, which it is not necessary for us here to decide, a judgment for such item could be entered by the clerk.
It is contended by the defendant in error that, because the declaration was not attacked by demurrer or otherwise, the defects in the declaration were waived. This might be tenable if proof had been introduced to show that the plaintiff had paid or obligated to pay as attorney's fees any specific amount not exceeding 10 per cent. The fact that the note constituting the contract between the parties obligated defendant to...
To continue reading
Request your trial
-
Citizens Nat. Bank of Orange, Va. v. Waugh
...8th) 16 F.(2d) 578; Florence Oil & Refining Co. v. Hiawatha Gas, Oil & Refining Co., 55 Colo. 378, 135 P. 454; Sarasota Pub. Co. v. E. C. Palmer & Co., 102 Fla. 303, 135 So. 521; Barton v. Farmers' & Merchants' Nat. Bank, 122 Ill. 352, 13 N. E. 503; Goss v. Bowen, 104 Ind. 207, 2 N. E. 704;......
-
Cheek v. McGowan Elec. Supply Co.
...Court has characterized an attorney's fee provision in a promissory note as contract of indemnity. See Sarasota Publishing Co. v. E.C. Palmer & Co., 102 Fla. 303, 135 So. 521 (1931); Blount Brothers Realty Co. v. Eilenberger, 98 Fla. 775, 124 So. 41 (1929). Whether attorney's fees provided ......
-
Interstate Life & Acc. Ins. Co. v. RKO Teleradio Pictures
...to offer evidence of the actual obligation to pay. North v. Vilas, 114 Fla. 560, 154 So. 245 (1934); Sarasota Publishing Company v. E. C. Palmer & Co., 102 Fla. 303, 135 So. 521 (1931); Realty Bond & Share Co. v. Englar, 104 Fla. 329, 143 So. 152, 156 (1932); and Dickenson v. First National......
-
City of Boca Raton v. Boca Villas Corp.
...fees he cannot recover them from the obligor. North v. Vilas, 114 Fla. 560, 154 So. 245 (1934); Sarasota Publishing Co. v. E. C. Palmer & Co., 102 Fla. 303, 135 So. 521 (1931). Accordingly, while we recognize that the determination of the amount of court costs is generally left to the sound......