The Indiana State sentinel. [volume] (Indianapolis) 1868-1895, 1877-03-21

court erred in not rendering judgment for
collection of the amount due upon this note.
in gold coin of the United States, as stipulated
for in the note We come now to the fourth
and fifth notes. These may be both consid-
cred together. The fourth contained
cent. expenses OF collection other
than attorneys fees, if snit should be insti-
tuted on the note; and the fifth, to pay per
cent. exchange and other expenses incident
tn the collection thereof. other than attOr-
neys' fees If suit should be instituted on
the note.
IL these stipulations were not q mere cover
for usury, we discover no legal objection to
them. 1t did not appear that they were de
signed to obtain usurions interest. The par
lies had a right to- make such contract as
they chose, not in violation of any law. The
stipulations do not violate the statute here
inbefOre set out on the subject of contracts
for the payment of attorneys fees. BY that
statute certain agreements for the payment
of attorneys fees are declared illegal and
void. But that statute does not make any
other agreements void. 1t will not do to
say that because the legislature have de-
clared particular class OF contracts void.
parties may not make other and different
contracts, not prohibited. which will be as
beneficial as those prohibited.
II the stipulatiOns under consideration are
void, il must be upon other grounds than
the violation of the statute mentioned.
With regard 10 exchange, il is clear that
parties may legally contract to psy it where
1t is not designed to cover usury. (Ihe
State Bank of Indiana VS.. Rogers, Ind, %;
Cornell VS.. Barnes, rs Wis, 413; Bucking-
ham vs. Mclean, 13 How, Isl
The other stipulations in these two notes
are within the class that have been upheld
by this court Thus in Gambrel vs.. Doe, B
Blackf, 140 a mortgage had been given to
he nf a of money and
| it contained the following stipulation, viz:
| "And do agree that said land and all my
right title, interest and claim therein, may
be exposed to sale, IL such principal and in
terest be not paid at the time the same shall
become due 10 satisfy said principal and in
terest, with per cent damages thereon and
| all costs" The court said, In speaking OF
| this provision, This, We think, is a reasona-
BILE stipulation to allow compensation for
extra aud incidental trouble and expense,
| aud does not, in our opinion, render the
contract usuriOus-"
In the case of Billingsley VS.. Dean III
| Ind, 1917 note was given containing the
| following stipulation. viz: "And If any in
stallment of the interest or principal sum
aforesaid should net be paid when due
promise to pay the said Thompson Dean all
| attorneys fees and other costs and charges
| in the collection thereof. etc. The court
said of the stipulation: sit optional
\ Win BllllnRSlF NneinCT lie OcCOulC
| liable tn pay the expenses of collecting the
| debt. That liability could only result from
| his own default; and evidently when party
| agrees to indemnify another against the
| consequences of his own act he can not
| complain If his contract Is enforced against
| him The agreement in the case is reason
| able and there is certainly no good reason
| why an agreement on the part of the debtor
| to pay an expense resulting necessarily from
| his own act should not BE- held valid in law"
The above observations, whilesthey may not
/ be applicable to contacts prohibited by the
/ statute before mentioned sreIentirely appli-
| cable to the contracts centered in the two
notes now under consideration, which, as
before stated, are not prohibited by that
/ statute.
We may remark before closing our obser-
| vations upon these two notes. that he court
| precluded any inquiry into the question of
| usury by striking out OF the paragraphs OF
the complaint based upon them the prayer
for the amounts thus stipulated for.
In our opinion the court erred in its ruling
\ upon the two notes in question.
| This disposes of all the questions made by
the appellant. We come now to that raised
| by the cross error.
| We have seen that the third note con-
| tanned an unconditional promise to pay five
| per cent. attorneys fees And this was al
| lowed by the cOlrt. In this we think the
court committed no error. In the case of
4 smith vs. Slvers (32 Ind 32l) this court
said, Frazer, c. j., delivering the opinion:
"a stipulation whereby the debtor agrees to
be liable for reasonable attorneys fees, in
| the event that his failure to pay the debt
/ shall compel the creditor to resort TO legal
| proceedings to collect his demand, Is not
| only not usuriOus, but is so eminently just
that there sould be no hesitation in enforc-
| ing It," Doubtless some abuses
/ hay from thu nttifa
practice of giving notes STIMULATING for
the payment OF attorneys fees. and especial.
| in cases when the amount OF the fees Ia
| not specified by percentage on the amount
| of the note or otherwise.
And we may suppose that the legislature,
by the act before noticed. attempted to
| remedy such abuses. But the act does not
cover the note now under consideration.
The terms of the act are too plain and un-
| equivocal to admit of construction. Its
| language must be its own interpreter Ii
provides That any and all agreements to
pay attorney fees, depending upon any con-
dition herein set forth. and made part of
any bill OF exchange" ETC., "are hereby de-
| clared illegal and void"
Two things are clearly and unequivocally
required 70 bring case within the statute:
| 1. The agreement to pay attorney fees
must depend upon condition.
2 The condition must be set forth in the
| instrument.
We can not assume that the legislature in
tended to make all agreements to pay at
torneys fees made part of any bill. note,
etc. Illegal and void. The language enl
ployed utterly excludes such inference. IL
they had intended to do that, they could
have simply said. "all agreements to pay at
torney fees, made part of any bill
OF exchange, etc, are hereby declared
illegal and void" The statute expressly
limits the prohibition to agreements de
pending upon any condition set forth in the
instrument.
The agreement in the note we are nov
considering. was for the unconditional pay
ment o. five per cent attorneys fees and il