167 Ill. 170 | Ill. | 1897
delivered the opinion of the court:
Counsel for plaintiffs in error have summarized their contentions for a reversal of this decree, as follows: “There are four prominent facts, each clearly stated and set "forth in the answers and amended cross-bill, which were material to be considered in the determination of this case, and which, by the action of the court below in sustaining the exceptions and demurrer, were eliminated from the case. These facts are as follows: First, Mary S. Stone was only a surety for Albert J. Stone; second, the rights of Mary S. Stone as surety, and Billings’ disregard and violation of such rights; third, Mary S. Stone was induced to sign the said note and mortgage by the false promises and representations of Albert M. Billings; fourth, the false promises of Albert M. Billings in respect to his giving time for the payment of the interest due September 1, 1894.”
There is nothing in the note or deed of trust from which it appears that Mary S. Stone was only a surety for her husband, Albert J. Stone. The deed of trust recites that each of the parties ¡executed the same individually and as the spouse of the other. But, as the case is here presented, we think it is immaterial whether Mrs. Stone was a mere surety or not. She executed the note and deed of trust with her husband before delivery, and, as the pleadings show, to secure the payment of an antecedent debt of her husband, and she alleged in her pleadings that the consideration was that the time of payment should be extended to three years, the original debt having already become due. No distinction can now be made between the suretyship of a married woman for her husband’s debt and that for the debt of a stranger. Such a transaction is not contrary to our laws, and even her separate property, if any, contained in the deed of trust, would be bound by the terms of the instrument.
We are unable to see how Mrs. Stone’s rights as such alleged surety were violated. She was bound by the terms of her contract to the same extent as any other obligor would have been bound, under such instruments, to carry out their terms.
No sufficient showing was made, either by the pleadings or proof, that Mary S. Stone was induced to sign the note and deed of trust by the false representations and promises of Billings. She alleges that Billings gave her the distinct and positive assurance that the time would be by him extended for three years from March 1, 1894, and that she was induced to sign the papers by representations made by his agent that the note gave three years’ time from the date thereof for the payment thereof, and, resting and relying completely on said assurance, she signed the papers without reading them. The note does in fact give three years’ time for the payment thereof, provided no default be made in the payment of the interest and performance of the conditions and covenants in the trust deed. Her belief that this period of three years was granted unconditionally does not alter the case. The conditions for the payment of interest, taxes, etc., were usual and reasonable,—such as are usually inserted in instruments of such character. She does not claim that any one assured her that the time given was given unconditionally, but only that she believed it to have been given unconditionally. She nowhere claims to be unable to read, and it was her duty to read the instruments before signing them. (Packer v. Roberts, 140 Ill. 9; Rigdon v. Conley, 141 id. 565; Linington v. Strong, 111 id. 152.) Nor can any special benefit of the provisions of the trust deed in regard to releasing certain portions of the property from the lien of the trust deed be claimed by her, over and above such benefits to him. The alleged tender of $11,000 by Stone to release out-lot 7 from the lien of the trust deed was not made until November 27, 1894,—four days after the entry of the judgment on the note and more than a month after the filing of the bill, although it is alleged in the answers to the supplemental bill that Billings was advised, a few days before the entry of such judgment, that such tender was going to be made. There is no rule of law giving to such notice of an intended tender the force and effect of an actual tender, and the actual tender, if made at all, (for there is no proof of such tender in the record,) was made when it was too late. Besides, there is no offer contained in any of the defendants’ pleadings keeping the tender good or to pay the required amount. The allegations in regard to suretyship and tender were repeated in the answers to the supplemental bill and were not expunged therefrom, so that proof could have been offered on those points if defendants had desired to do so, but they offered no evidence on the subject.
It is further contended that Billings made an agreement, for a valuable and sufficient consideration, to extend the time for the payment of the semi-annual interest to such time until Stone could obtain money to pay the same, and that he was therefore bound to make demand and give reasonable time for payment before bringing suit. If it be granted that this was a good defense, the defendants to the bill did not offer, in their pleadings or otherwise, to pay any interest whatever. They seek to use the alleged agreement as a defense to this suit, but do not offer to do equity. They ask the benefit of a conditional parol agreement without complying or offering to comply with its conditions. As the question is presented it is unnecessary to consider whether the rule of the common law that an executory contract under seal cannot be modified or varied by a parol agreement is applicable or not. Nor can we see how the collection of the §5300 by Billings from Mrs. Snell, and its application as part payment on the note of plaintiffs in error, could be availed of by them as a defense to the bill. The amount of that note constituted that much of the consideration of the note of plaintiffs in error, and when collected it was properly credited on the latter note.
We are unable to see that any error was committed, unless the court allowed an excessive charge for solicitors’ fees under the provision in the deed of trust providing for the allowance to the complainants of reasonable solicitors’ fees to be fixed by the court. The complainants offered testimony to the effect, as testified to by one witness qualified to speak on the subject, that “the sum of §7500 would be a reasonable, usual and proper charge,” and by another that “from §5000 to §10,000” would be such reasonable and usual charge in such cases. No evidence was offered on the subject whatever by the defendants, but the question seems to have been presented to the court below by exceptions to the master’s report as to whether or not the solicitors’ fees were the usual and customary charges for such services. While the amount involved was large and the lots and tracts of land embraced within the deed of trust were numerous, and the labors and responsibilities-of counsel considerable, still we are of the opinion that, under provisions of this character for the payment of attorneys’ and solicitors’ fees, such large and apparently excessive amounts should not be allowed without careful investigation by the court and full proof that the amount is the usual and customary charge. Such proof is necessary before the court can comply with the instrument providing that the fees shall be fixed by the court. One of the witnesses in the case at bar fixed the amount at “from $5000 to $10,000.” There is too wide a difference between these two amounts to furnish any very safe rule upon which to base a decree. Litigants have the right to expect that members of the bar will not demand, and that the courts will not allow, oppressive or excessive charges, which being demanded by opposing counsel under stipulations of this character, generally contained in mortgages, for “reasonable solicitors’ fees to be fixed by the court,” may often, as well said in the Appellate Court, amount to obnoxious penalties. The sum of $500 had been allowed as attorneys’ fees in entering the judgment at law upon the warrant of attorney to confess judgment, which made the total amount allowed in the two proceedings $8000. Inasmuch, however, as the solicitor^ for the complainant have offered in this court to remit from such allowance of solicitors’ fees the sum of $4024.82, which, as stated by them to the court, is the amount of the deficiency decree entered in the cause after sale, it will not be necessary to reverse the decree, but the same is affirmed in all respects, except as to the amount thus remitted. The remittitur is allowed, and the judgment of the Appellate Court and the decree of the trial court are affirmed, except as to the’ amount remitted as aforesaid. The defendants in error will pay the costs in this court.
Judgment affirmed.
