156 P. 416 | Mont. | 1916
delivered the opinion of the court.
On November 18, 1913, the defendant executed and delivered to the plaintiff three promissory notes for $400 each, due and payable, respectively, on the first days of January, February and March, 1914, with interest at the rate of 10 per cent per annum. Except as„ to their due dates, they are identical in form. The following is a copy of the first:
“$400.00. Glendive, Mont., November 18, 1913.
“January 1, 1914, after date, without grace, for value received, I or we jointly and severally promise to pay to the order of Estella Bovee, four hundred and no-100 dollars payable at the Exchange State Bank of Glendive, Glendive, Montana, with interest at 10 per cent, per annum from date until paid, and with attorney’s fees in addition to other costs, should the holder be obliged to enforce payment of this note by law. The indorsers of this note waive demand, protest and notice of protest and guarantee payment; interest payable annually; if the interest is not punctually paid, it shall become a part of the principal and thereafter bear the same rate of interest as the principal.
“Due Jan. 1st, 1914.
“S. H. Helland.”
On March 13, 1914, this action was brought to enforce payment, the complaint declaring upon the notes in separate counts. Each of the counts contains this allegation: “That the plaintiff has been obliged to enforce payment of the said promissory note by a suit at law, and to employ an attorney for that purpose; that the sum of $50 is a reasonable fee for the services of the said attorney in this * * * cause of action, which said sum this plaintiff has been obliged to pay. * * # ” The prayer
The rule has always prevailed in this jurisdiction that no costs may be allowed which are not expressly authorized by statute.
Assuming that a district court may adopt a rule on the subject ■—a proposition which we do not decide—the allowance, if made, must be justified by the rule or by some express provision of law. Whether the district court of Dawson , county has promulgated such a rule, the record does not disclose; and while there are provisions authorizing the allowance of counsel fees as costs in special cases—such as aye referred to in sections 7165 and 7167
It is true that in the ease of Bank of Commerce v. Fuqua, 11 Mont. 285, 28 Am. St. Rep. 461, 14 L. R. A. 588, 28 Pac. 291, this court referred to counsel fees stipulated for in a promissory note, as being in the nature of costs and within the supervision and control of the court. The question whether or not such fees come within the purview of section 7169, however, was not before the court. The court was there considering the question of the validity of such a stipulation, and the remark referred to was merely incidental. By the great weight of authority, a
But notwithstanding these considerations, we think the allowance was properly made in this case, on the theory that the
It is true that, when the action was brought, counsel for plaintiff entertained the notion that the fees were recoverable as special damages. This is apparent from the allegation in the complaint quoted above. This, however, did not preclude the court. from making a reasonable allowance as it did, counsel having abandoned his original theory and concluded to rely upon the stipulation.
The judgment is affirmed.
Affirmed.