International Indemnity Co. v. Bucher

[736]

NOURSE, J.

Plaintiff corporation instituted this action to foreclose a mortgage on real estate of the defendants. The complaint contained the usual allegations in a suit of this nature, including the mortgage in full, wherein it was provided that in the event of foreclosure a reasonable attorney’s fee, to be fixed by the court, was to be paid by the mortgagor. The essential allegations of the complaint were admitted by the defendants in their answer, but as to the payment of the attorney’s fee they set up the defense that the only attorney engaged by plaintiff in this action was one who was regularly employed by it as its counsel at a fixed salary and other compensation for all services rendered by the attorney, including his legal services in this action. After trial the court found that it was not true that said attorney was employed on a salary for all services as alleged in-the answer, but that his salary was paid to him as president of the corporation and that said corporation was obligated to its attorney to pay him what his services in this action might be reasonably worth. Upon these findings the court awarded judgment in favor of plaintiff for $8,425.28 as • principal and the additional sum of $365 as attorney’s fees. The only objection to the judgment on behalf of defendants goes to the correctness of the findings as to the allowance of attorney’s fees.

[1]

In support of their special defense the defendants proffered evidence of a written contract executed by the plaintiff corporation and its counsel in this action on the twenty-sixth day of January, 1912, whereby said counsel was employed for the period of five years at a fixed compensation to be paid for all legal services rendered by him on behalf of the corporation. The same agreement provided that as president of the corporation he should receive no compensation. This agreement, by its terms, expired on January 26, 1917, and no evidence was offered tending to prove that it had either been extended or that a new agreement for the payment of compensation for legal services had been made. This action was commenced January 22, 1918, and the only effort of proof of an agreement on the part of the corporation to pay compensation to its counsel in this case was the introduction of the resolution of its board of directors passed on May 1, 1918, wherein the corporation fixed the salary of its president, the same party who appeared as its