5 N.M. 427 | N.M. | 1890
This suit was brought in the district court for Socorro county upon the following promissory note:
“$3,500. Dallas, Texas, Oct. 23d, 1885.
“On December 1, ’85, after date, without grace, we or either of us promise to pay to the order of Exchange Bank, Dallas, thirty-five hundred dollars, for value received, at the Exchange Bank of Dallas, with interest from maturity at the rate of twelve per ••cent per annum, with ten per cent for attorney’s fees in case this note is placed in hands of an attorney for collection, or collected by suit. L. B. Collins,
“C. E. Odem,
“W. W. Tuttle.”
The declaration, in addition to the usual demand for debt, interest, and costs, asked judgment for attorney’s fees, as provided by the terms of the note. Collins and Odem were not served with process, hut W. W. Tuttle entered his appearance, and filed one plea,, that of non assumpsit. The defendant, Tuttle, waived a jury, also written finding of facts, and consented to trial by the court, which was had, and the following-judgment was rendered by the court at the November term, A. D. 1888: “At this day, this cause having-been heretofore submitted to the court, and the court being now sufficiently advised, doth find the issues for the plaintiff, and assess its damages against defendant Tuttle, at the sum of four thousand, seven hundred, thirty and 00-100 dollars, and also the sum of three hundred and fifty dollars as attorney’s fees; wherefore it is ordered' and adjudged that plaintiff recover of defendant "W. W. Tuttle, the sum of four thousand, seven hundred thirty and 00-100 dollars damages, with 12 per cent interest from this day until paid, and also the sum of three hundred and fifty dollars as attorney’s fees, together with its costs in this behalf laid out and expended, to be taxed herein, and that execution issue therefor.” To reverse this judgment, the case is brought to this court by appeal.
Appellant seeks a reversal solely upon the ground that -the court gave judgment for attorney’s fees, and assigns the following errors: (1) That the district court erred in its finding that the appellant was liable for attorney’s fees on the contract sued on; (2) that the district court erred in giving judgment against the appellant for $350 attorney’s fees, when there was no evidence of the value of the attorney’s fees before the court; (3) that the judgment of the district court against this appellant is wholly without evidence to support it.
The note was the only evidence offered by the plaintiff, and, although the entire cause of action was put in issue by defendant’s plea, no evidence was offered in support of the plea. The introduction of the note in evidence was sufficient to warrant a judgment for plaintiff for the amount of the note, interest, and costs. We are now called upon to say whether or not the court erred in allowing attorney’s fees as specified in the note.
It may be admitted, however, that some of our ablest courts hold opposite views on some of the points arising out of this question. Our own federal courts are somewhat divided in opinion; Judges Deady, Pardee, and Speer sustaining the validy of contracts for attorney’s fees, while Judges Caldwell and McCrary take the opposite view. The early cases upon this subject were disposed to hold against the validity and also negotiability of such contracts, a leading case being that of Woods v. North, 84 Pa. St. 407, placing it upon the ground of uncertainty; but in láter decisions a different view is taken, and there is now a large preponderance of decisions that where the amount provided for in a promissory note, at maturity, is fixed and certain, it is negotiable. Applying that test to the note sued on in this case, we are of the opinion that it is negotiable. The weight of authority is to the effect, also, that where a promissory note provides for a fixed and reasonable amount for attorney’s fees, if the notéis collected by suit, it is valid, and will be sustained by the courts. Illinois, Iowa, Louisiana, Kansas, Kentucky, Indiana, Arkansas, Texas, Colorado, California, and the federal courts in Oregon, Kansas, and Georgia, sustain the validity of such notes. Pennsylvania, Minnesota, Wisconsin, Missouri, and the federal court in Arkansas are not disposed to enforce such provisions.
This case is brought within very limited bounds by the record. We are not called upon to construe the clause of the note sued on, which provides for “ten per cent attorney’s fees in case this note is placed in hands of an attorney for collection,” because it is not properly raised. The provision just quoted is certainly a questionable one. It is susceptible of being used in a very oppressive and collusive manner. Therefore, if this record showed that the defendant, Tuttle, paid, or tendered payment, of the debt .and interest at maturity, or before suit was brought, and the payment tendered refused for the reason that the note was, placed in the hands of an attorney, who demanded ten per cent" more for attorney’s fees, a very different ease would be presented; but in this case there was neither payment nor tender of any part of the note, so far as the record discloses. On the contrary, suit was actually brought for the collection of the note, and the defendant, by pleading non assumpsit, denied the entire indebtedness, in law, and put the plaintiff upon proof of the entire amount; and while the judgment, except as to the amount of attorney’s fees, is in fact admitted, still the entire amount is suspended, and the plaintiff is deprived of the benefit of judgment for the debt and interest. If to declare the clause as to attorney’s fees invalid would void the entire note, there would be some justification for the practice; but it will not be contended that such would be the effect, and hence this court can not, by reversing the judgment of the court below, approve a practice which practically deprives the plaintiff of his legal rights, when, by payment or tender of amount due and admitted, such results would be avoided without depriving the defendant of any legal right. To reverse this case, the court must declare that a provision in a promissory note for attorney’s fees of a fixed and definite amount, in case the note is “collected by suit,” is contrary to public policy, and therefore void. This we can not do, as we' are satisfied that the weight of authority sustains the validity of such a provision in a promissory note by contract of the parties. We are aware of the force of the argument “that to sustain such contracts, because they are the contracts of the parties, would admit of oppression of the debtor by the grasping creditor,” but we can not presume that such will be the result; and, besides, it does not follow; and this court does not hold, that the courts will not interfere to prevent oppression and collusion, where the facts are brought before the court in the proper manner. The courts have held void many of the provisions for attorney’s fees in notes and contracts, where they are uncertain, excessive, or oppressive. Even where a fixed sum has been agreed upon by the parties, the courts have interfered to afford relief, where the amount was clearly exorbitant or oppressive, and the facts were shown to the court. In this case, services of the attorney were rendered. It is not shown that the amount contracted for was excessive, nor that the contract was not a voluntary one, with a full knowledge of all the facts. The note was sufficient evidence to warrant the court in giving judgment for attorney’s fees, and in doing so there was no error.
The third assignment of error is not well taken. There was sufficient evidence to warrant the court below in giving judgment for attorney’s fees upon the note; in fact, the note was the best evidence of the fact, and proved itself. Finding no error in the record, the .judgment of the court below is affirmed, with costs.