Cowan v. Campbell , 131 Ala. 211 ( 1901 )

McCLELLAN, C. J.

This action was begun by Mc-.Coird. The complaint was afterwards amended by making Campbell to the use of McCord the plaintiff. The action being upon negotiable promissory note payable to Campbell and not indorsed by him and the beneficial interest being in McCord, it was necessary for the action to be prosecuted by Campbell, but the amendment making him the nominal plaintiff to the use of McCord did not work an entire change of parties; McCord was still the real, as he had before been the sole and real, party plaintiff. — Oode, §§ 28, 29, 30.

On the averments of the complaint the attorney’s fee stipulated for in the note was due and payable just as any part, of the principal would have been due and payable had it not been previously paid, and it was no defense to the action for the fee that the principal and interest had been paid: The action was simply for a balance due on the note, the principal and interest having been collected after maturity by the attorney to whose1 use the recovery is sought.

It was not necessary for the complaint to aver that the ten per cent stipulated for attorney’s fee was a reasonable compensation for the serrines rendered by the attorney in collecting the principal and interest thereon. — Stephenson v. Allison et al., 123 Ala. 439.

As to the rulings above adverted to it may be further remarked that had they been erroneous appellant could take nothing by them because they appear in the transcript only by a statement of the clerk that they were made, no judgment upon the demurrers appearing in the record.

Pleas 2, 3, 4 and 5 allege an agreement postponing the maturity of the note which as alleged is nudum pactum for want of consideration. The facts set forth would not constitute an estoppel even in equity.

There was evidence tending to show that Mrs. McCord when delivering the note to the attorney E. O. McCord told him that lie must get his fee from the payors under the stipulation on their part to pay ten per cent attorney’s fee, and that she would not be liable for such fee. All this is fairly open to such a construction as involves a payment by Mrs. McCord of the attorney’s fee to E. O. McCord for collecting the principal and interest of the note by assigning to him in a way her claim for such fee against the makers and his acceptance of that claim in satisfaction of the value of his services rendered to her in the collection of the principal and interest. Clearly upon this view the fact that Mrs. McCord was not liable for the fee after making this arrangement would be no defense against this action: She was not liable because and only because she had paid. The affirmative charge and charge 2 were, therefore, properly refused to the defendants.

We find no error in the record, and the judgment is affirmed.