Rapp v. Spring Valley Gold Co.

Hayne, C. Action to foreclose a mechanic’s lien. Judgment for plaintiffs was entered upon a stipulation. The sole question is whether the plaintiffs should have been allowed an attorney’s fee.

1. The first position of the appellants is, that the stip^ ulation waived the attorney’s fee. The material portion of the stipulation is as follows: “ Plaintiffs shall reduce their claims to judgment in the following manner: Said Gregory, in conjunction with Mr. N. S. Walker, Jr., vice-president of the company, shall immediately, or as soon as they can, ascertain and fix. 'the amount due to each of the plaintiffs in said suit, and upon such ascertainment judgment shall accordingly be entered in said suit for the foreclosure of the mechanic’s liens sued on.”

The argument for the appellants upon this language is, that the provision is that judgment should be entered for the amount due to the plaintiffs, and by implication for nothing else, and that the attorney’s fee was not a part of the amount due to the plaintiffs. This argument proves too much. It would exclude a judgment for costs as well as for attorney’s fees. Costs are not a part of the amount due to the plaintiffs; but it is not disputed by appellants that the judgment for costs was proper. The attorney’s fee in this kind of case is not, strictly speaking, part of the costs. If allowed by the court, it need not be placed in the memorandum of costs. But it was properly allowed for the same reason that costs were allowed, viz., that it was a necessary incident of the judgment stipulated for, and was not expressly, or by necessary implication, excluded by the stipulation. That the attorney’s fee in foreclosure is merely an incident of the judgment, and not an ele[534]ment of the cause of action, was held in Carriere v. Minturn, 5 Cal. 435. In that case, Heydenfeldt, J., delivering the opinion, said: “ The counsel fees stipulated to be paid were not the cause of action, but, like the costs, a mere incident to it, and may be fixed by the chancellor at his discretion, not exceeding the amount stipulated." is approved and followed in Monroe v. Fohl, 73 Cal. 568. If the attorney's fee was an incident to the juddgment stipulated for, it was properly allowed by the court, unless excluded by the stipulation, which, as above stated, we do not think was the case.

But it is further argued for the appellants in this regard that the negotiations between the parties leading up to the stipulation show that it was understood that no attorney’s fees were to be allowed. But if we assume in favor of the appellants that prior negotiations were not superseded by the agreement finally arrived at and written out, and that such negotiations should control, we nevertheless do not think the result would be different.