Rogers v. Kemp Lumber Co.

OPINION OE THE COURT. ROBERTS, C. J. — 1 Appellee instituted suit before a Justice of the Peace in Chaves County to recover the sum of $85.00, alleged to be due him from the appellant as attorney’s fees. In the Justice Court appellant interposed a plea to the jurisdiction of the Justice of the-Peace, which was overruled, and thereupon it declined to plead further and judgment was rendered in favor of appellee for the sum prayed in his complaint. Appellant appealed to the District Court, and there conceded the jurisdiction of the Justice of the Peace, whereupon appellee moved for judgment of the District Court affirming the judgment of the Justice of the Peace, which motion was overruled, and which ruling of the Court is assigned as error by appellee upon a cross appeal. The assignment is wholly without merit, as the case, in the District Court, is triable de novo, upon the merits under our statute. The facts necessary to be stated to understand the question raised by appellant, by his assignment of errors, may be briefly stated as' follows: — Appellant held a power of sale mortgage, securing a note which provided, upon default, for ten per cent, additional upon the amount of principal and interest unpaid “for attorney’s fees, if placed in the hands of an attorney for collection.” The mortgagor being in default, appellant consulted appellee, as an attorney, relative to the procedure to be taken by it to foreclose the mortgage and its rights under the mortgage and had him draw a pencil memorandum of a notice of sale which appellant caused to be published" as required by law. Appellant sold the property under the notice of sale for $850.00, which was sufficient to cover the principal, interest and costs of sale, not including any charge, however, for attorney’s fees. Appellee claims that he is entitled to 10% of the amount due on the note, at the time of sale as attorney’s fees, by reason of the stipulation in the note above set out. Appellant, on the other hand, insists that he is only entitled to reasonable compensation, and as the evidence introduced upon the trial in the District Court, without dispute, shows that $25.00 is the reasonable value of the services performed by appellee, his recovery should .be limited to that amount. There was some claim made by appellant to the effect that there was an account stated between the parties for $10.00 as compensation, but as appellee testified that this sum was for only a part of the work done by him, viz: drawing the notice of sale, and did not include advice and consultation, we will not consider the question, but will treat it as not being involved in the ease. 2 ' It will thus be observed that the question in the case is as to whether or not the stipulation in a note of a fixed percentage as attorney’s fees, is the measure of compensation between attorney and client, where a dispute arises between them as to the attorney’s compensation, in the absence of a contract, express or implied, fixing such amount as compensation. Upon the question no authorities have been cited by either party, but on principle it -would seem that the question must be answered in the negative. The stipulated amount in the note is the limit of the payee’s right to recover from the payqr, and is inserted solely for his benefit, and to compensate him for damages and expense entailed upon him by reason of the payor’s default. As between payee and his attorney, in the absence of a contract, express or implied, the attorney is not limited to the percentage stated in the note, nor does it measure his compensation. He is.entitled to recover only the reasonable value of his services. As the undisputed facts in this ease show that the reasonable value of appellee’s services, based upon' the quantum meridl are $25.00, this cause is reversed and the District Court is directed to enter judgment in appellee’s favor for said sum, and it is so ordered. '