Starnes v. Schofield

• Decision Date: 25 May 1892
• Docket Number: 573
• Parties: STARNES ET AL. v. SCHOFIELD ET AL
• Court: Indiana Appellate Court

31 N.E. 480

5 Ind.App. 4

STARNES ET AL. v. SCHOFIELD ET AL

No. 573

Court of Appeals of Indiana

May 25, 1892

From the Owen Circuit Court.

Judgment affirmed.

I. H Fowler and W. A. Pickens, for appellants.

G. W Spahr and J. O. Spahr, for appellees.

OPINION

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 attorney's fees, upon which judgment was duly rendered.

It is first insisted that the amount of the recovery was too large in that it included attorney's 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 attorney's fees. Such provision amounts to an agreement to indemnify the holder against the payment of attorney's 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 attorney's 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 attorney's 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: "As the note provides for the payment of attorney's 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 is that unless the plaintiff is entitled to recover his entire demand upon the pleadings, without evidence, he shall be entitled to open and close. As has been noticed, appellees were required to prove their attorney's fees, and therefore had the...