Stephens v. Oregon Nut & Fruit Co.

Mr. Justice Bean delivered the opinion of the court. 1. It will be noticed that none of the facts upon which the right to recover attorney’s fees is based are put in [620] issue by tbe answer, only tbe reasonable amount being disputed. Considerable evidence was taken by the parties, much of which does not seem to relate to the issue. It appears from the record that a stipulation was signed by the attorneys for the respective parties, but at the request of defendant’s counsel was not filed in the case. It was, however, introduced in evidence without any objection on the part of the defendant, and is the only direct evidence we find as to the amount of reasonable attorney’s fees in the'suit, and is all the proof except what is disclosed by the pleadings and other records. Other testimony upon this point was held unnecessary by the trial court. This stipulation suggests $500 as attorney’s fees in the suit in case of the payment of the principal and interest at an early date, and $800 if payment should not be so made. Under all the circumstances of the case, as the main litigation was pending but a short time, we find that $500 is a reasonable amount to be allowed plaintiff as attorney’s fees in this suit: Lockhart v. Ferrey, 59 Or. 179 (115 Pac. 431). The stipulation on the part of the defendant contained in the note and mortgage is to the' effect that the annual 7 per cent interest to be paid should not be diminished on account of any expenses of foreclosure that might be incurred. The right to recover attorney’s fees is based upon the contract then made by the parties. This right is not challenged by the pleadings. 2. Some suggestion is made by the defendant corporation that the suit was prematurely commenced. The record discloses, however, that it was in arrears for interest for over two years, and also in default in the payment of taxes. The letter in behalf of the corporation upon which it relies indicates that its ability to pay was dependent upon its success in obtaining the [621] money with which to liquidate, and might have been taken as a time server. There are no inequitable features suggested by the pleadings or the record to defeat the right of the plaintiff to recover the full amount due upon the note and mortgage, together with reasonable attorney’s fees. Any other ruling would be arbitrary and in violation of the contract embodied in the instruments. The decree of the lower court will therefore be modified so as to allow the plaintiff $500 attorney’s fees, together with costs and disbursements in the lower court and upon this appeal. Modified. Mr. Chief Justice Moore, Mr. Justice McBride and Mr. Justice Harris concur. Mr. Justice Eakin did not sit.