Imler v. Imler

94 Pa. 372 | Pa. | 1880

Mr. Justice Paxson

delivered the opinion of the court,

There is no merit in the first assignment of error. Even if the burden of showing that the signature to the note upon which the judgment, No. 238, April Term 1874 was entered was genuine, was not upon the defendant below, she has no reason to complain, as the record shows she voluntarily assumed such burden before the jury. Having assumed it, and obtained the conclusion to the jury, it is no just cause of complaint that the court below adopted her own view of her duty.

The 2d, 3d and 4th assignments refer to the single question of the attorney’s commissions, and may be considered together. The judgment-note in controversy was for $2600, payable' in instalments, with interest and “attorney’s fees for collection.” The plaintiff moved to Nebraska, and left the note with his attorneys at Bedford for collection. The defendant paid most of the instalments within a short time after maturity, and without legal process. The principal contention was over the Smith judgment of $192.56, which was paid by the defendant. As the judgment was a lien upon the land she bought of the plaintiff, the payment would have been well enough if the latter had no defence to it. But unfortunately for the defendant, the plaintiff alleged that the note upon which the Smith judgment was entered was a forgery, and the jury in the trial below found the fact to be so. The amount of attorney’s commissions claimed and allowed- was $103, and it was urged that this was an unreasonable fee for the collection of a note of $2600, all of which, except the small sum included in the verdict, was paid voluntarily. The further point was raised, that as to so much of the note as was not collected by execution, no commissions could be charged.

The obvious intention in this and like stipulations in instruments for the payment of money is, that the creditor shall be indemnified for his reasonable expense of counsel fees in collecting the money.- That is to say, where it becomes necessary to employ counsel to collect the money the debtor shall be subjected to the expense thereof not exceeding the agreed limit. It was never intended, nor can we permit such a clause to be used, to compel a debtor to pay attorney’s commissions where the latter does not dispute the'claim and pays at maturity. In such cases there is no necessity for the intervention of an attorney. Where, however, an attorney has been employed in good faith by reason of the neglect or the refusal of the defendant to pay, the fact that the money has been paid to the attorney, without execution, does not relieve the defendant from his- agreement to pay reasonable attorney’s commissions, for the reason that the creditor’s.liability to the attorney has attached. The contract is one of indemnity, and if-the defendant, by his neglect or refusal to pay, has subjected his creditor to the necessity of employing counsel, why should he not pay ? The attorney deducts his commissions even where no execution or other legal process is issued, and if the defendant cannot be made to pay the creditor has no indemnity, and the clause means nothing.

How much is the defendant entitled to pay as such indemnity? Such agreements were formerly uniformly drawn at the rate of five per cent. This court held that an arbitrary charge of five per cent, in all cases could not be sustained; that only a reasonable compensation Could be recovered, the amount of which in each case must rest in the sound discretion of the court. Accordingly, in Daly v. Maitland, 7 Norris 384, which was á scire facias to collect a mortgage of $14000, the commissions were reduced from five to two per cent.

We are asked to say that the amount allowed in the case in hand is excessive. The agreement was not for five per cent., but for “ attorney’s commissions for collection.” The amount allowed was $103. This is less than five per cent., and agrees with the tariff of charges fixed by the Bedford county bar. The amount -may seem large in proportion to the verdict, but this is a matter which the defendant would.have done well to consider before she entered upon the expensive, vexatious and often unprofitable business of litigation. The amount of time and labor required on the part of counsel would have been no greater had the verdict been for the whole face of the note. There was a suit and trial in the court below and a trial here. It was said in Daly v. Maitland, supra, “ In general this court will not review the exercise of a sound discretion by an inferior court upon such a question, and the presumption will always be in favor of their decision, unless it is plainly excessive, or, as appears to have been the case here, founded on the mistaken idea that they had no equitable power to interpose and moderate the agreed amount.” ‘ Applying this sound rule of our latest decision upon this subject to the case in hand, we are not prepared to say that the amount allowed is so plainly excessive as to justify us in revising the discretion of the court below.

Judgment affirmed.

Truneey and Sterrett, JJ., dissented.