Lauferty v. Johnson

Lacey, J. The only question we need consider in this case is as to whether the words inserted in the note after the amount of the note itself is mentioned, “ and attorney’s fees,” renders the note non-negotiable. We think it does not. These words “ and attorney’s fees,” must mean, if they mean anything, the attorney’s fees accruing and becoming due for the services of attorney performed in and about the collection of the note. It certainly can not have reference to attorney’s fees due or rendered for any other purpose. If this be so, such attorney’s fees can not become due until the note is collected. Then the attorney’s fees are not a part of the note. It is a separate and independent agreement to pay attorney’s fees after the note is due. Evidently no attorney’s fees could be rendered in and about the collection of the note until it became due, and until then, nothing whatever is due or owing on the note, except the amount mentioned therein. Were the note paid at maturity, or within the days of grace, ■no amount except that specifically mentioned in the note would ever be due. Therefore, there is no uncertainty about the amount of the debt mentioned in the note at the time it becomes due. It is true that in the case of Morgan v. Edwards, 53 Wis. 599, it is said -that a large number of eases have been cited which hold, that if the amount payable at maturity of the paper is fixed and certain, the instrument containing the essentials of a note, is still a note, although it contains a further ju'Oinise to pay an uncertain sum for expenses or costs of collection, if not paid at maturity, or if suit be brought upon it. • We have examined many of these cases, and in all thus examined we find express stipulations that such expenses or costs are only payable, provided default be made in the payment of the note at maturity, or unless suit be brought upon it, which implies a default. It is true that the court holds that the note, which in its terms is like the one in this case, binds the maker to pay any attorney’s fees accruing in securing and collecting the note, whether incurred before or after the maturity of the note, and, therefore, holds the negotiability of the note to be destroyed by the insertion of such clause. But in the case of Proctor v. Baldwin, 82 Ind. 370, the court, in considering the same question arising on a note similar in all its points to the one under consideration in this case, holds a different doctrine and disapproves the holding in the case of ¡Morgan v. Edwards, which it had under review, and holds that by the condition that the attorney’s fees shall be paid if the note is not paid at maturity, “is implied that only such services as may be rendered after maturity, shall be charged in the case before us; that the clear intention and understanding of the parties to the note were, that the maker would pay such attorney’s fees as might be incurred by the holder of the note in its collection after it matured; that any attorney’s fees that might be contracted by the holder of the note in securing it before due, were not within the contemplation of the parties at the time the note was executed, and, therefore, not within the promise. Smock v. Ripley, 62 Ind. 81; Tuley v. McClurg, 67 Ind. 10.” The views held by the Indiana, court meet with our entire approval. ¡Nothing, as we have already said, could be in the contemplation of the parties in the use of the words, “ and attorney’s fees,” other than attorney’s fees rendered after the maturity of the note in its collection. The Supreme Court of Indiana, the same as the Supreme Court in this State, have held that a note with condition to pay attorney’s fee, to become due after the maturity of the note, does not destroy its negotiability, though possibly the courts of this State have not passed upon the precise question presented here where the amount of the attorney’s fee is not fixed, but we think that the principle is the same. Stoneman v. Pyle, 35 Ind. 103; Hubbard v. Harrison, 38 Ind. 323; Smock v. Ripley, 62 Ind. 81; Tuley v. McClurg, 67 Ind. 10 above. As illustrating the tendency of the holding of the Supreme Court in this State, we cite Hill v. Todd, 29 Ill. 101; Nickerson v. Babcock, 33 Ill. 373; Clauser v. Stone, 29 Ill. 114; Houghton v. Francis, 29 Ill. 244; Childs v. Davidson, 38 Ill. 437. In opposition to the opinion here expressed, we find the Wisconsin case above cited, and Bullock v. Taylor, 39 Mich. 139, cited by appellee’s counsel, and others, no doubt, may he found. But we think that the rule we have announced is the more reasonable and more in accordance with the decisions of the Supreme Court of our own State. Holding that the note was negotiable, we think the court erred in excluding it as evidence under the common counts, and in sustaining the demurrer to the first and second counts of tli« declaration. Judgment is therefore reversed and the cause remanded. Reversed and remanded.