Twin Falls National Bank v. Reed

• Decision Date: 28 July 1927
• Docket Number: 4726
• Citation: 258 P. 526,44 Idaho 573
• Parties: TWIN FALLS NATIONAL BANK, a Corporation, Respondent, v. WM. G. REED, Appellant
• Court: Idaho Supreme Court

258 P. 526

44 Idaho 573

TWIN FALLS NATIONAL BANK, a Corporation, Respondent, v. WM. G. REED, Appellant

No. 4726

Supreme Court of Idaho

July 28, 1927

ATTACHMENT - "CLAIM ON CONTRACT" - BANKS AND BANKING - NATIONAL BANKS-FOREIGN CORPORATION LAW HELD INAPPLICABLE.

1. Note fixed in amount as to principal and interest, but not fixing amount of attorney's fees provided for therein, held to constitute a "claim on contract" for direct payment of money, as required by C. S., sec. 6780, authorizing attachment.

2. C S., secs. 4772, 4773, providing prerequisites to foreign corporation doing business within state, held inapplicable to national banks, and note executed to national bank is enforceable, under section 4775, without allegation as to compliance with such section.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. William A. Babcock, Judge.

Appeal from the order of the district court denying motion to discharge attachment. Order affirmed.

Judgment affirmed, with costs to respondent.

Sweeley & Sweeley, for Appellant.

Only a contract for the direct payment of money will support an attachment. (C. S., sec. 6779.)

A contract for the direct payment of money means a contract that is "absolute, unconditional, free from intervening agencies or conditions." (Ross v. Goldridge Mining Co., 14 Idaho 687, 95 P. 821.)

Bothwell & Chapman, for Respondent.

The contract sued upon is one for the direct payment of money. The provision in the note "for the payment of reasonable dollars attorneys' fee, if the note or any part thereof is collected by an attorney either with or without suit," does not change the character of the contract. (Finney v. Moore, 9 Idaho 284, 74 P. 866; Murphy v. Montandon, 3 Idaho 325, 35 Am. St. 279, 29 P. 851; 2 R. C. L. 813; 3 Cal. Jur., p. 440, sec. 32; Tibbet v Sue, 122 Cal. 206, 54 P. 741; Waples-Platter Grocer Co. v. Basham, 9 Tex. Civ. App. 638, 29 S.W. 1118.)

C. S., sec. 4775, has no application, for the respondent is not a foreign corporation. (In re Cushing's Estate, 40 Misc. 505, 82 N.Y.S. 795; 7 C. J., p. 760, sec. 584; 14a C. J., p. 1214, sec. 3924; 1 Rev. Stats., U. S. Sup., 2d ed., p. 614; First National Bank of Owensboro v. Commonwealth, 17 Ky. Law Rep. 1167, 33 S.W. 1105; Hummel v. First Nat. Bank, 2 Colo. App. 571, 32 P. 72.)

If it be conceded that the respondent is a foreign corporation, compliance with the statute of Idaho cannot be enforced. (C. S., sec. 4782; Northern Pacific Ry. Co. v. Gifford, 25 Idaho 196, 136 P. 1131; 2 Cooley on Taxation, p. 1863, sec. 928; Owensboro Nat. Bank v. City of Owensboro, 173 U.S. 664, 19 S.Ct. 537, 43 L.Ed. 850; Davis v. Elmiro, 161 U.S. 275, 16 S.Ct. 502, 40 L.Ed. 701.)

MCNAUGHTON, Commissioner. Varian and Brinck, CC., concur.

OPINION

MCNAUGHTON, Commissioner.--

Respondent, alleging that it is a national banking corporation duly organized and existing under and by virtue of the laws of the United States with its principal place of business at Twin Falls, Idaho, where it has been and now is engaged in the business of owning, operating and conducting a national bank, sues to recover the balance due on a promissory note, providing for a reasonable attorney's fee in case of suit together with interest and costs.

The plaintiff filed its affidavit for attachment made by its counsel containing the following statement:

"That the defendant in the said action is indebted to the plaintiff in the sum of $ 8077.00 besides interest at the rate of eight per cent from the 24th day of June, 1924, over and above all legal setoffs and counterclaims and for reasonable attorneys' fees upon a contract for the direct payment of money, to-wit: Upon a promissory note with interest amounting to, at this date the sum of $ 545.04 and reasonable attorneys' fees in the sum of $ 1,000.00."

Upon this affidavit and a bond the writ issued and certain of defendant's property was attached. Defendant moved to discharge the attachment. This motion was denied and the case is on appeal from the order denying the motion to discharge the attachment.

Two assignments are made: (1) That the contract sought to be made the basis of the attachment is not a contract for the direct payment of money because the amount of the attorneys' fees is not fixed; (2) that the contract is unenforceable under C. S., sec. 4775, for...