Bank of Duncan v. Brittain

| Miss. | Mar 15, 1908

Calhoon,' J.,

delivered the opinion of the court.

This cause was tried by the presiding judge of the court her low, a jury being waived by the parties. It seems that by an agreement of the parties, two cases are made to depend upon the result of the appeal in this ease. Both cases present about the same facts. Both are to be decided upon a clause in each of two promissory notes each secured by deeds of trust naming a trustee. In one of the notes it is provided that “If this note is placed in the hands of an attorney for collection, the makers or endorsers hereof agree to pay the holder of this note ten per cent attorney’s fee upon the amount due.” In the other note there is a provision that the promisor would pay at a day fixed the principal and interest “With reasonable attorney’s fee for collection if not paid when due.”

There can. be reasonably no distinction drawn between the two notes as to the attorney’s fee because it is agreed to all around that if attorney’s fees were to be paid at all the amount charged was reasonable.

We deal now particularly with the note of E. R. and L. C. Brittain, though what we say as to this would apply of course equally to both. In both the notes, the Bank of Duncan was the payee, the one directly and the other by endorsements to it.

The note fell due and was not paid. Thereupon, it was turned over to a firm of solicitors for collection. Immediately that this was done, these solicitors had the right to claim from the Bank of Duncan their fee, and they did claim it, and the Bank did pay it. The promisor in the note paid the amount secured to the trustee in the deed of trust given to secure it, but paid tile-attorney’s fee under protest. This payment was made after the land had been advertised for sale and before sgle, and the promisor in the note brought suit against the Bank of Duncan to recover the amount paid as attorney’s fee, and the court below permitted this recovery giving judgment against the Bank of Duncan for that sum.

It is settled too well for disputation in Mississippi that stipulations in promissory notes to pay attorney’s fees are valid subjects of contract. See authorities cited in the briefs. When the-Bank of Duncan turned the note and trust deed over for collection to the solicitors, they concluded to proceed by advertisement of sale through the trustee and did so proceed. The mode of procedure depended upon them, and as their judgment might dictate they could have advised procedure at law or in equity or by the proceedings in pais which they finally adopted. Of course the Bank of Duncan was liable to them for the fee under repeated decisions, and, by the terms of the contract, the promisor in the note because liable to have these fees paid out of the proceeds of sale or on final liquidation of the claim.

Oases which hold that where the attorney is also the trustee,, he cannot charge both as such and as attorney, and cases which hold that, in such double official relation he could only charge as trustee, have no pertinency in this case, which must be

Reversed and remanded.