O'Sullivan v. Burling Et Al‪.‬

Submitted December 4, 1931. Mortgages — Foreclosure — Promissory Notes — Attorneys' Fees — Tender of Payment — Sufficiency — When Stipulation in Note for Attorneys' Fees not Enforceable. Promissory Notes — Stipulation for Attorneys' Fees not Enforceable Where No Services Performed — Where Performed, Fee to be Fixed by Court. 1. The stipulation in a promissory note for the payment of attorneys' fees becomes operative only when expenses have been actually and necessarily incurred in the employment of an attorney for the enforcement of collection; hence where expenses are unnecessarily, or where none are actually, incurred, the stipulation cannot be enforced; if expenses for legal services are incurred, the amount of the fee must be fixed by the court upon a showing of the services performed. Same — Mortgage Foreclosure — Disallowance of Attorney's Fee — Assignment of Note and Mortgage by Attorney to Wife — Mortgagors Misled by Attorney as to Due Date of Note — Tender of Payment Without Attorney's Fee — Sufficiency of Tender. 2. In an action to foreclose a real estate mortgage, assigned to plaintiff by her husband, an attorney, the defendants alleged that the attorney at various times had misled them as to the due date of the mortgage note making them believe it was the 10th of a certain month whereas in truth it fell due on the 7th, and that they made tender of the amount due with interest on the former date, which was refused. The action was commenced two weeks later. The only services performed by the attorney in the matter at the time of tender, consisted of the writing of a letter to defendants advising them that the note was overdue and in thereafter entering the action on his files. The court found that under the circumstances the defendants had made lawful tender, that the attorney had not performed any professional services in behalf of his client, prior thereto, that there was no necessity for engaging an attorney to enforce collection, and that therefore plaintiff was not entitled to an attorney's fee. Held, under the above rule, that the judgment entered in conformity with such findings was correct. Same — Provision for Attorney's Fee — When Only Clause Becomes Effective. 3. The provision in a promissory note for an attorney's fee becomes effective only in the event its maker permits the invocation of that portion of the contract by reason of his failure to meet his obligation at maturity.