Mansur-Tebbetts Implement Co. v. Carey

Clayton, J. (after stating the facts). There wei eight errors assigned. The first to the fourth, inclusivi all go to the sufficiency of the evidence to support the ve] diet and the judgment of the court. The fifth and sevent were waived by the plaintiff. The sixth is as follows: ‘ ‘Th court erred in refusing to permit the plaintiff to prove b [575] be testimony of the defendant J. EL Carey and the testi-nony of J. C. Thompson, A. C. Cruce, and W. I. Cruce, at-orneys of the Ardmore bar, that ten per centum of the mount of the collateral notes collected by the plaintiff was , reasonable compensation for collecting the same.” The ighth assignment is "that the court erred in overruling the laintiff’s motion for a new trial, in that all the errors bo’tf'e mentioned were embraced in said motion, and called o the attention of the trial court.” From an inspection of hese assignments, it will be seen that only two questions rc presented to the court for its consideration, to wit: (I) 7as the evidence sufficient to support the verdict and judg-íent? (2) Did the court err in refusing to admit the evience set out in the sixth assignment? As to the sufficiency of the evidence: The face value f the notes in the suit is $3,781.62. The face value of the ollateral notes is $4,832, the difference being $1,050.38. All f the notes draw the same rate of interest from maturity, ad were due about the same time. The law charges the ffendants with interest on the principal note, and charges íe plaintiff with all the interest collected by it on the col-,teral notes, together with that which, but for the neglience of the plaintiff, could have been collected on the un-fflected collateral notes. On the trial, the plaintiff pro-iiced in court uncollected collateral notes of the face value, ithout interest, of $1, 219.18, leaving abalance of $3,612.82. ,s to this last amount, there is no proof but that it was all )llected by the plaintiff, with whatever interest there may we been due upon it, and none of the notes covering this nount were produced at the trial, nor any explanation ven for their nonproduction. Under these circumstances, .e law requires that this amount shall be credited to the Biyment of the principal note. Goleb. Collat. Sec. § § 106, B-2. And inasmuch as these notes were drawing interest at fte same rate, and were due at the same time as the prin [576] cipal notes, this credit would satisfy that note, with interest to that extent. Crediting the principal note, to wit, $3,781. 62, with the above amount, $3,612.82, and we have a balanc due plaintiff of $168.80. The proof establishes, and it seem to be conceded by plaintiff’s counsel, that the freight charge set up in the answer, of $143.85, should be allowed defenc ants. Deducting this from the above leaves the sum of $24 95 due plaintiff. But the pleadings of the defendants alleg ‘ ‘that all of the said collateral notes, by the use of prope diligence on the part of plaintiff, could have been collectei that the great majority of them were secured by chattej mortgages upon sufficient property to secure their paymen and that those which were not so secured were each owin by parties who were solvent, and were possessed of sufficie: property, subject to execution, to enforce the payment of t same; that, by reason of plaintiff’s negligenc-carelessness; and mismanagement in collecting and handlin said notes, they became worthless, and plaintiff becau liable to them in the full amount. ” The replication denic these allegations, but admits that plaintiff forbade the di fendants having anything to do with their collection. A the trial, the plaintiff introduced in evidence the princip; notes, and rested its case. The defendants, properly takin the burden of proof, introduced testimony tending strong] to show that, with the exception of about $175, all of tl collateral notes, when turned over to plaintiff, were c solvent parties, or sufficiently secured by mortgage, am with proper diligence on the part of the plaintiff, could ha been collected at their maturity, and that for a long ti: thereafter the makers of said notes were solvent; that of t notes produced by plaintiff at the trial, with the exception perhaps about $400, all were worthless, the makers there-having, since the maturity of the notes, become insolvenl The plaintiff offered no rebutting proof as to its diligence 3 their collection. Under these circumstances, with the excel [577] on of the notes covering the $175 and the $400, above set it, the plaintiff clearly became liable for the balance of the icollected collaterals. Coleb. Collat. Sec. § (§ 105 — 142. aking these amounts, to wit: Due plaintiff on principal >te, $24.95; notes not good at time of delivery, $179; notes >od, produced by plaintiff at trial, $400, — $603.95,—from e face vaiue of the collaterals produced by plaintiff, to wit, ,219.18, and there would be a balance due to defendants of 15.23. The verdict of the jury was $600. In the ove calculation, interest on the collateral notes produced the trial, and which could have been collected by plaintiff ■ proper diligence, is not included. Pledgee oí Collateral must use diligence in collecting. [577] The evidence, we think, was amply sufficient to sup-rt the verdict and judgment, unless the court erred in ex-idiugthe testimony set out in the sixth assignment of ¡or. The plaintiff undertook to get a credit on ac-mt of expenses and services in collecting the collater-notes. We think that it was clearly entitled to credit 1 any and all necessary expenses incurred in making ¡se collections, including attorneys’ fees, if attorneys re necessarily employed. To establish this claim, the .intiff offered to prove by a number of attorneys of the 6more bar “that a reasonable compensation for the coition of the collateral notes turned over by the defendants the plaintiff would be 10 per centum of the amount col-bed on such collateral. ” To the introduction of this evi-Lce, defendants objected. Objection sustained, and ex-ition saved. There was some proof that a few of these es were put into the hands of a lawyer by the name of ley' (who seems to have left the country without having omplished a great deal in the way of collecting them). w much he actually collected, if any, or that he was at expense in the matter, is not shown. With this ex-bion, there is no evidence of any cost incurred by plain [578] tiff in connection with these collateral notes, or that thi service of any lawyer was had. The law does not permit a pledgee to charge attorney’s fees or commissions for his personal service in the collection of collaterals, unless tha1 was the contract between the parties. No such contract is here shown. As above stated, without a special contract he can only be allowed his actual expenses for the collec tion; and, as"none were proved, we think the court did no err in excluding the evidence of the attorneys, to the effec that a reasonable compensation for the collection of thes notes was 10 per cent. Finding no error in the proceeding of the court below, the judgment is affirmed. Right of Pledgee to expenses for collecting collateral. Springer, C. J., and Thomas and Townsend, JJ concur.