Stames v. Schofield

• Decision Date: 25 May 1892
• Citation: 31 N.E. 480,5 Ind.App. 4
• Parties: Stames et al. v. Schofield et al.
• Court: Indiana Appellate Court

5 Ind.App. 4

31 N.E. 480

Stames et al.

v.Schofield et al.

Appellate Court of Indiana.

May 25, 1892.

Appeal from circuit court, Owen county; G. W. Grubbs, Judge.

Action on a promissory note by George K. Schofield and others against Abraham C. Stames and others. Plaintiffs had judgment, and defendants appeal. Affirmed.

Fowler & Pickens, for appellants. Spahr & Spahr, for appellees.

CRUMPACKER, J.

This action was brought by appellees against appellants upon a promissory note. The answer alleged that the note was given for the purchase of a horse which was expressly warranted in certain particulars; that the horse did not fulfill the warranty, whereby appellants sustained damages which they asked to have recouped from the note. There was a verdict in favor of appellees for the full amount of the note and attorneys' fees, upon which judgment was duly rendered.

It is first insisted that the amount of the recovery was too large, in that it included attorneys' fees. The complaint failed to allege the employment of attorneys, or that appellees incurred any expense or liability in the collection of the note. A copy of the note was incorporated in the complaint, and it expressly provides for the unconditional payment of attorneys' fees. Such provision amounts to an agreement to indemnify the holder against the payment of attorneys' fees in collecting the note, and the holder can recover thereunder only such reasonable and necessary fees as he has been compelled to pay or has become liable for. Unless the amount of the attorneys' fees is specified in the note, before the holder can recover, he is required to prove what a reasonable fee would be to make the collection; and his recovery will be measured accordingly. But the complaint claimed damages generally in a sum sufficient to cover the amount of the note and attorneys' fees; and when this is the case, in an action upon a contract expressly providing for the payment of damages or indemnity, proof may be made and recovery had for the damages directly sustained, without special allegations. Thus it was said by the court in Harvey v. Baldwin, 124 Ind. 59, 24 N. E. Rep. 347, 26 N. E. Rep. 222: “As the note provides for the payment of attorneys' fees, it was enough to allege the breach of the contract and state the damages generally; for, where damages are expressly provided for in a contract, they need not be laid as special damages.” It follows that the recovery was not too great.

It is next maintained that the court erred in allowing appellees the opening and closing of the cause. The rule...