Lehman, Durr & Co. v. Comer

MoCLELLAN, J. On the former appeal in this case (87 Ala. 362), the sufficiency of the description and identification of mules attempted to be embraced in the mortgage, and all the evidence in relation thereto, were fully, minutely and exhaustively considered in detail by the whole court; and we see no reason now for disturbing the conclusion then so deliberately reached, that the instrument was inoperative as to any mules belongingtothe mortgagor, because of insufficiency and uncertainty of description. We, therefore, adhere to our former opinion on this point. The question whether complainants are entitled to an allowance for attorney’s fees paid, or agreed to be paid, for services rendered in the prosecution of this suit, is to be determined by reference to the terms of the mortgage. The instrument contains two stipulations in regard to attorney’s fees. The first of these is a part of the stipulation authorizing the mortgagees to sell on default in the payment of the sum secured ($7,000) by the mortgage, after advertisement, &e., and the clause providing for an attorney’s fee in that connection very clearly, we think, has reference to the services of an attorney in and about a sale made under the power, and not to services rendered in filing and prosecuting a bill of foreclosure in the Chancery Court.—Bynum v. Frederick, 81 Ala. 489. The other stipulation is much broader. Its terms are: “And I further agree to pay the attorney’s fees, and other expenses which may be incurred by said Lehman, Durr & Co. in the collection of said several sums, by a foreclosure of the mortgage, or otherwise, for the payment of which this conveyance is a lien.” While this provision is in a clause of the mortgage which relates more especially to advances other than the seven thousand dollars, which constitutes the leading consideration for the conveyance, it very clearly, in our opinion, is not confined to attorney’s fees paid in the collection of such other sums, but necessarily extends to the collection of all sums accruing to Lehman, Durr & Co. in the dealings contemplated and provided for in the instrument. Substantially the same stipulation was held to have this effect in the case of Harmon v. Lehman, Durr & Co., 85 Ala. 379. Our conclusion, therefore, is, that the chan [584] cellor erred in holding that the complainants were not entitled to a reasonable attorney’s fee for services rendered in the prosecution of this suit. It may be proper to add, that the chancellor appears to have been led into this error by an agreement of counsel entered on a former reference, to the effect that the register should not make any report as to solicitor’s fees. The objection that the chancellor should have given specific directions to be observed in taking and stating the account by the register, can not avail to reverse the decree, even .conceding that such directions should have been given. In such case, it can not be said that any misdirection has been given, and hence error can not be predicated. It would be the duty of the register to take and state the account according to law, and any error committed by him in the admission or exclusion of testimony, or in the conclusions reached, would be matter for exceptions to his report, and of review by the chancellor. We can not assume that errors will be committed by the register, or that, if committed, they will not be corrected by the chancellor. See Kirkman v. Vanlier, 7 Ala. 217; McCurdy v. Middleton, at present term. On the contrary, we assume the account will be properly stated; and we do not deem it necessary, therefore, to amend the decree in effect, by determining, on this appeal, how the value of cotton for which H. M. Comer & Co. are chargeable should be ascertained. That matter is not before us. The decree of the chancellor, for the error pointed out above, as to the claim for attorney’s fees, is reversed, and the cause remanded. Reversed and remanded.