Gallwey v. Castelhun

LENNON, P. J.

This is an appeal from the judgment in favor of plaintiff and from the order denying the defendant’s motion for a new trial.

The complaint contained three counts, the first being upon a promissory note for three hundred dollars executed by defendant on the twenty-seventh day of April, 1914, to Eberhardt Estate Company and by it indorsed to J. W. Wright & Company and by the latter indorsed to plaintiff. The second count is to recover a balance of $213.95 alleged to be due upon a mutual, open, and current account for moneys advanced and loaned to the defendant. The third count is on a written contract in which it was agreed that all rent, taxes, interest, etc., on the respective properties to be exchanged were to be adjusted

pro rata

as of the date of exchanging of deeds. The third count then alleged that the exchange of properties was consummated on April 28, 1913, and that at the special instance and request of defendant and pursuant to the said written agreement defendant became indebted to said Shatter Realty Company in the sum of $287.08 as a balance due upon a mutual, open, and current account. Then the assignment of the indebtedness to plaintiff is pleaded.

In answer to the first count the defendant set forth two defenses to the note, viz.: 1. That the note was given in full satisfaction of the claim sued on in the second count, and 2. That the defendant should have been given credit for four payments of $50 each on account of the note.

Upon this phase of the case the evidence is conflicting, and therefore we need not further consider the contention that the trial court’s finding concerning the payments made upon the note is contrary to the eyidenee.

The court below found that plaintiff had employed an attorney to collect the note and allowed $50 as a reasonable fee

[591]

for the services of the attorney in collecting the note. Defendant objects to the allowance as grossly excessive. The objection is without merit. While the execution of the note was admitted, the payments were disputed and considerable time was consumed in trying the issue concerning these payments, and the amount to be allowed as attorney’s fees being within the discretion of the court, obviously therefore the allowance of $50 as an attorney’s fee was not unreasonable or excessive.