Newell v. Sanford

| Iowa | Jun 23, 1862

Wright, J.

The only question in-this case; is, whether, under the circumstances, the referee erred in .refusing to allow defendants the amount paid to attorneys, and for their own services, in defending against the action of Newell to obtain possession of the property covered by the Williamson and Spencer leases. And we are very clear that this question must be answered in the negative.

There are a few excepted cases, in which counsel fees in former suits are, or may be, allowed. In some instances they have been allowed, as between principal and surety. So, also, where a party has been evicted by action of ejectment, and brings his suit upon the covenant of seisin contained in his deed. (Sedgwick, 96; Staats v. Ten Éyck, 3 Cai. Cas., 111" court="N.Y. Sup. Ct." date_filed="1805-05-15" href="https://app.midpage.ai/document/staats-v-executors-of-ten-eyck-5463553?utm_source=webapp" opinion_id="5463553">3 Caines, 111; Kingsbury v. Smith, 13 N. H., 109; Pitcher v. Livingston, 4 Johns., 1" court="N.Y. Sup. Ct." date_filed="1809-02-15" href="https://app.midpage.ai/document/pitcher-v-livingston-5472351?utm_source=webapp" opinion_id="5472351">4 John., 1; Swett v. Patrick, 12 Maine, 9; Smith v. Compton, 4 B. & A., 407.) But we have found case, where, as a legal right, they have been allowed in .no ordinary cases of contract, in the absence of malice, and want of propable cause. “ This principle,” says Mr. Sedgwick (96), “ is rigorously applied to counsel fees in all cases of contract, and, without discrimination, to both parties to the litigation.” He then proceeds to state, that, in some excepted cases, counsel fees in former suits are allowed.' But these cases, upon principle and authority, stand upon entirely different grounds from that now before us. (And see Van Duzen v. Linderman, 10 Johns., 106" court="N.Y. Sup. Ct." date_filed="1813-01-15" href="https://app.midpage.ai/document/cudner-v-dixon-5473172?utm_source=webapp" opinion_id="5473172">10 John., 106.)

Finally, all the facts being admitted, as claimed by defendants, the legal conclusion does not follow that there was a want of probable cause in the institution of the first action by Newell. We see nothing more in it, than an ordinary case, where a party has been unsuccessful in his action, to the full .extent claimed. And when we go one step further, an.d .remember that the question of probable cause is a mixed one of fact and law, (Center v. Spring, 2 Iowa, 393" court="Iowa" date_filed="1856-06-15" href="https://app.midpage.ai/document/center-v-spring-7091072?utm_source=webapp" opinion_id="7091072">2 Iowa, 393,) and that of malice always one of fact, our duty not to interfere with this finding, is most manifest.

Affirmed.