First National Bank v. Canatsey

Worden, J. This was an action by the appellant against the appellees, on a bill of exchange on which the defendants were liable as drawers, acceptors, and indorsers. The bill stipulated for the payment “ of costs of collecting, including attorney’s fees.” W. i?. Harrison and W. S. Shirley, for appellant. A Claypool and F. P. A. Phelps, for appellees. There was 'judgment by default for the amount of the bill, and the court found specially that the reasonable attorney’s fees for collecting the bill would be sixty-five dollars, but refused to allow the same or any part thereof on the ground that the clause in the bill stipulating to pay the same was in violation of the law against usury. Exception was duly taken, and the case comes here on this question alone. That such a contract is not usurious, is settled by the following cases in this court: Gambril v. Doe, 8 Blackf. 140; Billingsley v. Dean, 11 Ind. 331; Smith v. Silvers, 32 Ind. 321. In the case last cited, it was held that such a contract was not only not usurious, but so eminently just that there should be no hesitation in enforcing it. In the case of Smith v. The Muncie National Bank, 29 Ind. 158, it was decided that such a stipulation in a bill becomes a part of the contract of the acceptor. We think the stipulation not void, and that the court erred in not allowing the reasonable attorney’s fees as found. The judgment is reversed, with costs, and' the cause remanded for further proceedings in accordance with tins opinion.