561 A.2d 177 | Me. | 1989
The defendants, Bernard and Sue Ann Johnston, appeal from that part of a judgment of the Superior Court (York County, Bradford, J.) awarding attorney fees to the plaintiff, Arthur Balkan. The judgment was entered after a jury found that the Johnstons owe Balkan the principal and interest on a loan, evidenced by a written instrument described as a promissory note. Because the Johnstons did not contest Balkan’s claim for attorney fees in a timely manner before the trial court and because the written instrument, signed by the John-stons and found to evidence the obligation of the Johnstons to repay the loan to Balkan, provided for reasonable attorney fees, we affirm the judgment.
In his complaint Balkan sought recovery from the Johnstons for a $15,000 loan, interest, costs and attorney fees for collection.
It was undisputed at trial that the John-stons received $15,000 from Balkan. There were only two issues tried by the parties and decided by the jury that related to the $15,000 transaction. The first was whether the money advanced by Balkan to the Johnstons was a loan that the Johnstons were obligated under writing to repay, or whether the money was given as a gift, with no obligation to repay. Second, the jury considered an alternative defense
The case was presented to the jury on the issue of whether the $15,000 was a gift or was a loan that had to be paid back under contract law. The loan was evidenced by the written instrument signed by the Johnstons that clearly provided for the payment of attorney fees incurred in collecting the loan. Despite this provision and the fact that Balkan had consistently sought recovery of attorney fees during this litigation, the Johnstons did not raise at trial the issue of whether their signatures obligated them to pay attorney fees. Thus the issue was not addressed by Balkan nor directly decided by the jury. The failure of the Johnstons to raise the issue in a timely fashion at trial precludes their pursuing it on appeal. See Poire v. Manchester, 506 A.2d 1160, 1164 (Me.1986); Graybar Elec. Co., Inc. v. Sawyer, 485 A.2d 1384, 1388 (Me.1985).
Moreover, the Johnstons’ argument that they are not obligated to pay attorney fees because the instrument is not a valid promissory note within the meaning of Article 3 of the Maine Commercial Code is without merit.
The entry is:
Judgment affirmed.
All concurring.
. In his complaint, Balkan contended that the Johnstons owed him three separate sums of money that he had loaned them. In Count III of the complaint, the only count relevant to this appeal, Balkan asserted that the Johnstons owed him $15,000, interest, costs and attorney fees.
. The Johnstons do not raise the reasonableness of the amount of the attorney fees as an issue on appeal.
. See 11 M.R.S.A. § 3-104 (1964).