Rouyer v. Miller

Gavin, C. J. Appellant'sued appellee upon two promissory notes executed by him to John B. Mazelin, of whose estate appellant is administratrix. Each note is dated February 27, 1878, one being for $1,000.00 and the other for $10.00. The answers were payment, — payment reducing the sum due to $700.00 upon May 16, 1891, and a tender of that amount kept good by bringing it into court; a set-off of $40.00; and, as to the $10.00 note, that it was given for usurious interest. A trial by jury resulted in a general verdict for appellee with certain answers to interrogatories. The answers to interrogatories control the general verdict only when there is between them and it a conflict irreconcilable upon any reasonable hypothesis within the issues. In determining this question we look, not to the evidence which was given, but to that which might have been introduced. Simons, Admr., v. Beaver, 15 Ind. App. 510. There was a general plea of payment. The special answers find that upon a certain day $600.00 was paid in addition to $550.00 previously paid. They do not find that this is all that — 521 — was paid. It is wholly consistent with all the answers that the entire balance may have been paid on that day. Appellant was not, therefore, entitled to judgment upon the verdict as asked for. The notes contained absolute provisions for the payment of attorney’s fees of 5 per cent, upon the amount due. The evidence is undisputed that upon May 16, 1891, appellee tendered to Judge Ayres, who then had possession of the note as appellant’s attorney, $700.00. Upon this tender appellee relies. It is also proved that appellee had shown to Ayres & Jones a receipt for $600.00, for which he claimed an additional credit, and that they had sent for Edward Mazelin, a son of decedent, and showed it to him and consulted with him as to whether they should allow it. The record further discloses that Ayres & Jones did afterward, with other attorneys, begin and prosecute this action. If attorneys’ fees are to be included in the amount due upon the $1,000.00 note, May 16, 1891, it is clear that the tender was not sufficient Appellee’s position is, first, that there is no evidence that the note was in the hands of attorneys for collection so as to impose upon appellant any liability therefor; second, that even if it were, there is no evidence as to the value of such services; third, that the tender was refused upon other grounds and appellant cannot now change front. In none of these propositions do the facts and law applicable thereto, as we view them, sustain appellee. As we have indicated, there is evidence that the note was in the possession of Ayres & Jones as attorneys for appellant, that they were treating concerning it with appellee and advising with a son of decedent with relation to whether they should accept a $600.00 receipt. The tender was made to the attorneys and they brought suit on the note. There is here sufficient — 522 — evidence to justify, if not absolutely to require a finding that the note was in the attorneys’ hands for collection at the time of the tender. In fact, unless it was, we are at a loss to see how the tender could be effective. King v. Finch,’ 60 Ind. 420. For whatever services had been rendered, the attorneys were certainly entitled to compensation. Had they accepted the $700.00, and thus collected the money,appellant would have been under legal obligation to pay them therefor. Neither the law nor the general experience of mankind will authorize us to presume that they were rendering these services gratuitously. We are in full accord with the assertion of appellee’s counsel that agreements in notes for the payment of attorney’s fees are contracts of indemnity purely, and cannot be made a cloak for speculation ' and profit by the holder, whether the amount be specified in the note or not. Kennedy v. Richardson, 70 Ind. 524; Goss v. Bowen, 104 Ind. 207; Harvey v. Baldwin, 124 Ind. 59; Starnes v. Schofield, 5 Ind. App. 4; Moore, Admx., v. Staser, 6 Ind. App. 364; Judson v. Romaine, 8 Ind. App. 390. It must also be regarded as settled by the case of Moore, Admx., v. Staser, supra, that attorney’s fees are recoverable where a note has been placed, after maturity, in an attorney’s hands for collection and a liability to him for services has been incurred. We are further of the opinion that both the earlier and later authorities establish and recognize that where the amount is fixed in the note this is prima facie the sum recoverable, subject to be reduced by proof that this is unreasonable and excessive, or that the plaintiff has not really incurred a liability to pay the full amount. In Smiley v. Meir, 47 Ind. 559, the Supreme Court considered the effect of a stipulation to pay a fixed sum as attorney’s fees, not upon the assumption, as — 523 — counsel would imply, that the contract was not one' of indemnity and that the sum named was incontrovertible; on the contrary, the court expressly declines to determine that question, and says: “Prima facie, we think, the amount or rate stipulated for is to govern in a suit on the note, and in this case the amount or rate was not excessive. * * * * No other evidence [than the note] of the amount of the fee was introduced, or was necessary.” This holding was approved in Glenn v. Porter, 72 Ind. 525. In Toler v. Keiher, 81 Ind. 383, a special verdict allowed 5 per cent, attorney’s fees on principal and interest. That was the amount named in the note. There was in the verdict no finding as to the value of the services, yet the verdict, as to the amount of recovery, was approved. In Starnes v. Schofield, supra, this court impliedly recognized the rule here asserted. “Unless the amount of the attorney’s fee is specified in the note, before the holder can recover, he is required to prove what a reasonable fee would be.” The appellee in this case was fully informed that the note was in the hands of the attorneys. He could not but know that it was in their hands for collection, because he was dealing with them and proposing to pay them the money. He was at this time represented by, and himself acting through attorneys. By the terms of his contract he had agreed to pay 5 per cent, attorney’s fees. The appellee knew also that there was a controversy between the parties, and it is evident that the employment of attorneys by appellant was not a mere subterfuge to impose additional burdens upon the debtor. He knew, or ought to have known from the circumstances, that attorney’s fees had been incurred and his liability therefor thereby fixed. If he thought 5 per cent, was too much he -should have — 524 — so shown. Since by fixing a rate in the contract he obtains the benefit of thereby limiting the amount he can be required to pay, even though the payee expends much more, we see nothing harsh or inequitable in declaring this to be prima facie the proper amount. We are unable to perceive how any logical distinction can be made, as to this question, between cases where suit has been brought and those where there has been none. If the expense has actually been incurred by the holder, that fixes the liability, the amount of it being then determined in either instance according to settled rules of law. Were we not right in this proposition that the rate specified must govern prima facie, then appellant was certainly entitled-to the open and close. If, notwithstanding the provision in the note, he was required to prove the actual value of the attorney’s fees, then the new trial should have been granted for refusing to give him the open and close, for the law is established in Indiana that whenever the plaintiff has any proof to make, either as to the facts necessary to establish a case or as to the amount of damages recoverable, he is entitled to the open and close. Reynolds v. Baldwin, 93 Ind. 57; Hyatt v. Clements, 65 Ind. 12; Camp v. Brown, 48 Ind. 575; Fetters v. Muncie Nat’l Bank, 34 Ind. 251. Lindley v. Sullivan, 133 Ind. 588, does not sustain counsels’ contention to the contrary. There the note did not specify the amount or rate of fees, but the answer expressly admitted plaintiff’s right to the full amount of attorney’s fees claimed in the complaint. This admission obviated the necessity of proof. Here there is no such admission. We are not able to perceive how the debtor is .exposed to great hardship by imposing upon him the duty of making inquiry as to the amount of the attor — 525 — ney’s fees, and ascertaining them, especially, when he is dealing by his own attorneys with the creditor through his attorneys. The Supreme Court of Vermont, in Smith v. Wilbur, 35 Vt. 133, passed upon a proposition closely analogous to this. There a tender is authorized after suit. It was made, but did not include certain costs of witnesses, and was held insufficient. The court says: “The fact that the plaintiff did not inform the defendant that he had summoned these witnesses was of no importance. If the defendant desired any information as to the amount of the plaintiff’s costs from him, he should have inquired, for he knew a suit had been brought and some costs had accrued, and if he chose to make a tender without inquiry, the plaintiff certainly was not in fault.” It is not a new or novel doctrine that when one proposes to make to another a tender of the amount due him, he should take steps to ascertain the correct amount. In Helphrey v. Chicago, etc., R. R. Co., 29 Ia. 480, the defendant relied upon a tender of the value of a colt which had been killed, and was adjudged by the jury to be worth $60.00. The company had only tendered $55.00. The court said: “If a party tender less than is due his creditor, he does so at his peril.” So, too, in this State, where one desires to tender damages under sections 6568, 6570, Burns’ R. S. 1894 (4852, 4854, R. S. 1881), he must determine the proper amount and tender enough, if he would save himself from further costs. If the holder of the note should refuse to give information concerning the attorney’s fees when called for, or, should the debtor be ignorant of the employment of the attorney, or the tender be refused upon other grounds and he be thereby misled, the court would doubtless protect him, as was done in Haskell v. Brewer, 11 Me. 258, and Nelson v. Robson, 17 Minn. 284. — 526 — That there may be no room for misunderstanding as to the evidence relating to tender we set it all out in full: First. It was agreed that May 16,1891, the defendant tendered plaintiff $700.00, and kept this tender good by paying the money into court. Second. There was the testimony of Howard Cale, who was connected with the office of Winter & Elam, May 16, 1891. “Q. I will ask if you and Mr. Miller made any tender of money on account of this note to Judge Ayres, who had possession of the note as plaintiff’s attorney? A. Yes, sir; we did. Q. When was it? A. It was May 16, 1891. Q. What was the amount of the tender? A. It was $700.00. Q. And Judge Ayres at the time had the note as plaintiff’s attorney? A. Yes, sir. Q. And they declined to receive it? A. Yes, sir.” Thus there is entire absence of any evidence as to the ground of the refusal of the tender, or as to what was said by the parties. The evidence discloses only that the tender was made and that it was declined. It does not show that any cause or reason whatever was assigned for such refusal, neither does it show that none was given. We might reasonably infer that one cause operating upon the minds of appellant and her counsel was the difference as to the $600.00 credit; but there is not a word to indicate that this was the only reason, or that it was assigned by appellant’s attorney as the basis or ground of the rejection. There was no error in refusing to receive in evidence the page 80 of decedent’s account book, if for no other reason, because there was, at that time, no proof that the entries were in decedent’s handwriting, nor when they were made. Neither does it appear to us that — 527 — they were necessarily parts of the same account introduced by appellee. The law as to the introduction of account books is, in this State, in considerable confusion.. Wilber v. Scherer, 13 Ind. App. 428. The page in question, however, does not seem to us really an account within the general acceptation of the term, kept in the regular course of business, but rather a mere memorandum. While it appears that Edward Mazelin wrote the indorsement reducing the interest, there is nothing to show that he was present when the agreement was made or had any actual knowledge of the consideration therefor. Some other questions have been argued, but they may be easily obviated by amendment, or may not arise upon another trial. We do not, therefore, take them up. Judgment reversed, with instructions to the trial court to grant a new trial. Reinhard and Lotz, JJ.,.dissent from that part of the opinion relating to attorney’s fees.