City Investment Co. v. Pringle (1920) · DecisionDepot

City Investment Co. v. Pringle

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Sep 23, 1920 No. Civ. No. 3510.Published

Before: Kinsell

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Holding. Attorney's fees provided for by contract are not recoverable as costs, but must be specially averred as damages; furthermore, such fees are only recoverable to reimburse a party for expenses actually paid or incurred.

Issues

Whether attorney's fees provided for in a contract can be taxed as costs.
Whether attorney's fees are recoverable when the party has neither paid nor become obligated to pay them.

Disposition. remanded

Quotations verified verbatim against the opinion

“The real question presented is whether attorney’s fees provided for in a contract can be allowed “as costs.” It is our opinion that they cannot”

“Where the right to attorney’s fees, as in this case, is based upon contract and not upon statute, recovery, if at all, must be had upon that contract, and such fees cannot be taxed as costs.”

“The object of a provision for attorney’s fees in a contract is to reimburse a party for sums he pays, or becomes liable to pay, as attorney’s fees.”

Synopsis

APPEAL from a portion of a judgment of the City and County of San Francisco awarding costs. J. J. Van Nostrand, Judge.

The facts are stated in the opinion of the court.

Charles S. Wheeler, John F. Bowie, Nathan Moran, Moran & Heer and A. A. Heer for Appellant.

[354]

KINSELL, J.,

pro tem.

Action was brought to recover unpaid rent and possession of certain real property. Demurrer to complaint was sustained. Amended complaint was filed and defendants, Edward J. Pringle and Sydney J. Pringle, as executors of the last will and testament of William B. Pringle, deceased, moved to strike out the same. This motion was granted. Thereafter, before any further pleadings were filed, appellant filed a voluntary dismissal of the action, which was duly entered.

Defendant executors then filed a memorandum of costs, claiming an appearance fee of three dollars and “Attorney’s fee, fixed as costs, $350.” None of the other defendants filed any memorandum of costs. Appellant moved to tax costs, the grounds of the motion being:

1. That no attorney’s fee is chargeable or taxable

as costs

against plaintiff under the terms of the contract of lease involved in the action.

2. That no amount has been fixed or liquidated as' a reasonable attorney’s fee.

3. That it does not appear that the sum of $350, or any sum, has been incurred by the said defendants in the said action.

The motion was supported by an affidavit, from which it appears that in the lease upon which the action was founded it was agreed as follows: “That in the event that the lessors, their successors or assigns, shall commence an action against the lessee for the enforcement of any of the provisions or conditions in the lease, and if judgment in said action shall be rendered in favor of the lessee and against the lessors, their successors or assigns, then and in that event the lessors, their heirs or assigns, will pay to the lessee the cost and expense of said action, including a reasonable attorney’s fee, which said fee shall not in any event exceed the sum of $350 gold coin of the United States.”

Testimony was taken on the hearing of the motion to tax costs, and the motion was denied, whereupon the court signed and filed a judgment of dismissal which .provided: “ . . . that judgment be given in favor of defendants and against the plaintiff, and that said defendants have their costs, taxed at $-.”

City Investment Co. v. Pringle

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Synopsis

KINSELL, J.,

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