75 Ind. App. 263 | Ind. Ct. App. | 1921
Appellant loaned to appellee John W. Lee, hereinafter designated as appellee, the sum of $1,500, taking the latter’s promissory note due in three years after date. To secure payment of the note, appel
The record shows that appellee made no tender of the amount due appellant under the contract, and for that reason it is urged by appellant that the court erred in. ordering a reconveyance. The undisputed evidence shows, however, that appellant,
It is further contended by appellant that there was error on the part of the trial court in fixing the amount of the money judgment against appellee, (1) in making no allowance for attorney’s fees, and (2) by a miscalculation of the mutual accounts of the parties.
It appears from the evidence that at the time appellee sought a settlement with appellant and made demand for a reconveyance of the real estate, the note, though past due, had not been placed in the hands of an attorney for collection. The evidence also shows that the amount of the note was not in dispute, and that before appellant had placed the note with an attorney for collection, appellee had informed appellant that he was ready and willing to pay the amount, if appellant would reconvey the real estate. Under such circumstances, and since there was a finding against appellant on his cross-complaint on the note, appellant was not entitled to attorney’s fees. See German-American Bank v. Martin (1908), 129 Mo. App. 484, 107 S. W. 1108; 8 C. J. 1099.
Excepting as to appellant’s claim for attorney’s fees, the record shows that there was no controversy between the parties as to the accounts or claims each held against the other. To find the amount due appellant was but a matter of calculation. It
It is therefore ordered that the trial court modify its finding by increasing the amount found to be due appellant in accordance with this opinion, and that the judgment be modified by adding thereto the sum of $39.53, as of date the original'judgment was rendered; that the judgment, when so modified, be affirmed; and that the cost of this appeal be paid by appellee.