78 So. 594 | La. | 1918
The opponent claims attorney’s fees on certain mortgage notes for the capital and interest of which he figures on the administrator’s tableau as a creditor. One of the notes recites that the fees are to be due “in the event default is made in the payment -of this note at maturity, and it is placed in the hands of an attorney for collection or suit is brought on same.” The recital in the others is that the fees are to be due if the note is “sued upon or placed in the hands of an attorney or collector for collection.”
A few days after the notes had fallen due, the opponent, holder of them, who lived in a different parish from that where the succesr sion was opened and the administrator- resided, wrote to the latter demanding payment. Several weeks later the administrator came to see him and told him that the mortgaged property was advertised for sale for the settlement of the succession, and that the notes would be paid in due course of administration. Opponent expressed his willingness to wait, provided the attorney of the succession would in a letter give him the assurance that his rights would be protected. This letter not having been received, the opponent, at the expiration of the time fixed for the furnishing of it — one week — placed the notes in the hands of an attorney.
The ground for resisting the payment of the fees is that the notes were going to be paid in due course of administration, and that therefore there was no necessity for placing them in the hands of an attorney. And the cases of Successions of Burke, 107 La. 85, 31 South. 391, Succession of Howell, 121 La. 960, 46 South. 933, and Succession of Foster, 51 La. Ann. 1670, 26 South. '568, respectively, are cited where the condition in the contract, either in express terms or by necessary implication, required that there should be a necessity for suit, and the court held that such necessity had not been shown.
Even if the condition expressed in said notes was the same as that in these cases, so as to either express or imply that a necessity for suit should exist in order that the fees should be due (a point not necessary to be considered, and which therefore we do not consider), we think that, under the circumstances hereinabove stated, such necessity existed.
