Siegel v. Hanchett

Gary, P. J. This is an action of debt on a replevin bond. The question in it arises upon an instruction to the jury, that in assessing damages they should, witer alia, award “ the usual and customary charges for attorney’s fees, in trying and conducting said replevin suit.” The replevin suit had been disposed of on the merits upon the second trial. The fees paid for the first trial were proved. The “ usual and customary ” fees for the second trial were proved, but no proof was offered of any retainer of the attorney who conducted the defense on that trial, or that anything had been, or was agreed to be, paid to him for it. The condition of the bond contained the statutory clause to pay all costs and damages occasioned by wrongfully suing out the writ. The appellant’s object that the condition does not cover attorney’s fees for services in defeating the replevin suit, and that without proof of payment, or agreement to pay the fees5 they should not be allowed, even if covered by the condition. The first question is not an open one in this court. It was made in Horner v. Boyden, 27 Ill. App. 573, and considered by the court, but other questions fixed the attention of the writer of that opinion, to the extent that he inadvertently omitted to mention that point, which had even then been settled here, by the unreported case of Burnstein v. Matson, in 1883. Hnder statutory language as to assessing damages on the dissolution of an injunction, similar in form, and in effect the same as the language of this condition, the cases in this State are numerous that solicitor’s fees are allowable. Ryan v. Anderson, 25 Ill. 372 has, as to this point, never been departed from. Misner v. Bullard, 43 Ill. 470. As to the other questions, the undisputed fact that the attorney attended and conducted a trial for three days, and afterward appeared and resisted the motion for a new trial, raises the presumption of a retainer and liability to pay usual fees, and that the fees allowed were usual was not' contested. Damages may be given for a liability to pay, as well as for actual payment. Directors v. Trustees, 66 Ill. 247; Richard son v. Chasen, 10 Ad. & El. N. S. 756. There is no error and the judgment is affirmed. Judgment affirmed.