Hildreth v. Williams

SEARLS, C. This is an appeal from a judgment in favor of plaintiff for $350, as an attorney’s fee in an action in equity to enforce a pledge upon certain stocks given to secure the payment of a promissory note made by defendant to plaintiff for $3,500. The case comes up on the judgment-roll. The promissory note was in the usual form, with this addition: “And I further agree that, in the event of suit being brought against me, then there shall be added to any judgment against me, rendered in said suit, as counsel fees, -an additional sum of- per centum, in like gold coin, upon [142]the amount of the principal and interest hereof accrued at the time of the entry of such judgment, or if paid before judgment, and after action commenced, then on the amount at the date of payment.” The only defense was as to the right of plaintiff to recover the counsel fee claimed in his complaint, and at the trial the amount claimed on the note, less counsel fees, was paid by defendant, and a stipulation filed that such payment should in no wise affect the question of plaintiff’s right to recover counsel fees.

The whole right to recover counsel fees, in this state, is found in statute, or in contract: Sichel v. Carrillo, 42 Cal. 508; Mascarel v. Raffour, 51 Cal. 242. Section 1 of the act of March 27, 1874 (Stats. 1873-74, p. 707), provides that: “In all eases of foreclosure of mortgage the attorney’s fee shall be fixed by the court in which the proceedings of foreclosure are had, any stipulation in said mortgage to the contrary notwithstanding.” In Monroe v. Fohl, 72 Cal. 568, 14 Pac. 514, the court doubted the right of the court to fix an attorney’s fee, under this statute, in a case in which the mortgage failed' to provide for a fee, and that the statute operated to limit the fee which the court could allow in a case where the parties had agreed upon a sum to an amount not greater ■than the sum so fixed; in other words, that the court can scale the agreed sum down, but not up. The reason given in that case for confining the action of the court to eases in which the parties have provided for an attorney’s fee is that the title of the act is, “An act to abolish attorneys’ fees, and other charges in foreclosure suits”; thus evincing an intention to abolish rather than to provide by law for their recovery. The statute, whatever its construction, only treats of attorney’s fees in actions of foreclosure of mortgages, and has no application to this case, which is an action to enforce the lien created by a pledge of personal property.

The question here must turn upon the contract contained in the promissory note. That contract provides that there shall be added to the judgment, or, if paid before judgment, and after action commenced, to the amount due, as counsel fees, “an additional sum of - per centum.” In other words, the agreement is for a counsel fee, but the amount thereof is not provided. The contracting parties doubtless had in view the necessity of counsel in the event of proceed