218 P. 735 | Nev. | 1923
Lead Opinion
There is but one question presented on this appeal, and that is whether the trial court erred in adjudging the plaintiff in the foreclosure of a mortgage tó be entitled to recover an attorney’s fee. In determining this question we need consider only the contention of the appellants that the defendant corporation did not authorize its officers to embody in the notes and mortgages executed the provision therein contained authorizing a court, in case of foreclosure, to award to the mortgagee such fee. On this point the facts are few. The defendant company executed two notes, one for $20,000, dated May 6, 1920, and another for $4,000, dated May 20, 1921, both containing the following provision:
“And in case suit or action is instituted to collect this note, or any portion thereof, we promise and agree*220 to pay, in addition to the costs and disbursements provided by statute, such additional sum in like lawful money of the United States, as the court may adjudge reasonable for attorney’s fees to be allowed in said suit or action.”
These notes were secured by mortgages containing provisions to the effect that in case of foreclosure thereof the court should adjudge the plaintiff to be entitled to recover such a sum as attorney’s fee as it might deem reasonable.
The only defendant which appeared in the trial court and contested plaintiff’s right to an attorney’s fee is the defendant, Fred Stadtmuller, as trustee, etc. From a judgment in favor of plaintiff, he has appealed.
Counsel for appellant insist that the judgment must be reversed for the reason that there was no meeting of the trustees of the defendant company, duly called, at which the officers of the company were authorized to execute the note and mortgage in question. No contention is made as to the incorrectness of the judgment as to the money loaned since the company received the benefit thereof, but upon authority of Defanti v. Clark, 45 Nev. 120,198 Pac. 549, it is said that the court erred in awarding the plaintiff an attorney’s fee. We do not think that case is in point. There is a wide difference between the facts in that case and in the instant one. In that case we held that Defanti could not recover attorney’s fee for the reason that there was no legal meeting of the board of trustees authorizing the execution of the note and mortgage, and that no such transaction had ever been ratified. In that case there was no meeting of the board of trustees at which all the trustees were present and acting, whereas in the instant case, so far as the $20,000 note and mortgage are concerned, they were all present and acting. It is true it does not appear that a meeting was held pursuant to notice, but they all assembled, for the sole purpose evidently of considering the proposition of borrowing the money obtained and of giving a note and mortgage
“The averments above quoted are sufficient to charge the corporation with the execution of this particular mortgage, and, as they are not denied, the defendants are bound by them.”
This holding seems to be squarely in point and decisive of the contention made.
It is said that the evidence does not show that the board of directors acted as such. The resolution adopted confutes this contention. The fact that the minutes of the meeting were not written up and attested by the officers of the company is not a circumstance which can be invoked to defeat the mortgage given pursuant to the resolution.
The $4,000 note and mortgage were not authorized at a meeting of which notice was given or at which all of the trustees attended, nor has the execution thereof
It is ordered that the case be remanded, and that the trial court modify its judgment in accordance with the views above expressed.
Rehearing
On Petition for Rehearing
By the Court,
A petition for rehearing has been presented by the respondent. He makes two points: First, that the court erred in its conclusion as to the $4,000 mortgage; and, second, assuming that no error was committed in the respect mentioned, the order made was not justified. As to the first proposition urged, we are altogether satisfied with what was said in the opinion.
There is no greater merit in the other contention than in the one just disposed of, but counsel has argued it at great length in his petition, and we will endeavor briefly to clarify the matter. His point is that, since the court, in rendering the judgment, did so for a lump sum, instead of apportioning a certain amount for services in foreclosing the $20,000 mortgage, and an amount for the $4,000 mortgage, “if there is any evidence to support the judgment it will not be reversed upon appeal,” citing to support this contention Jones v. West End M. Co., 36 Nev. 149, 134 Pac. 104, and Jensen v. Pradere, 39 Nev. 466, 159 Pac. 54. We do not think either of the cases bear out the contention. The evidence in the cases mentioned was conflicting, and this court refused to disturb the judgment because there was substantial evidence to support it. But if the decisions sustained the contention made in the quoted matter, they would not apply to the situation in hand wherein we held, in substance, that one of the causes’ of action as to the attorney’s fees was not established by the evidence, the mortgage not having been Authorized.
“A party may appeal from the whole or any part of a judgment (Gen. Stat. 3353; Hayne, New Trials & App. 185); and upon the hearing of an appeal, the supreme court may reverse, affirm, or modify a judgment, or affirm it as to some issues and reverse as to others (Gen. Stat. 3361; Hayne, New Trials & App. 295).”
See, also, section 5359 of the Revised Laws.
It is ordered that the petition be denied.
