Guignon v. Union Trust Co. , 156 Ill. 135 ( 1895 )

Mr. Justice Craig

delivered the opinion of the court:

We concur in the judgment of the Appellate Court, and it will only be necessary to add a few words in addition to what is said in the opinion of that court.

It is insisted in the argument that the Appellate Court erred in affirming that part of the decree wherein four per cent damages were allowed on the protest of a note, as provided for by the statute of Missouri, as construed by the Supreme Court of that State in Clark v. Snyder, 17 Mo. 296, and other cases". In support of this position reliance is placed on section 8, chapter 74, page 835, of Hurd’s Statutes, viz.: “When any written contract, wherever payable, shall be made in this State, or between citizens or corporations of this State, or a citizen or corporation of this State and a citizen or corporation of any other State, territory or country, (or shall be secured by mortgage or trust deed on lands in this State,) such contract may bear any rate of interest allowed by law to be taken or contracted for by persons or corporations in this State, or which is or may be allowed by law on any contract for money due or owing in this State.” We do not think this section of the statute controls the question involved. Here the contract was made in Missouri, and was payable in that State, and the right to recover the damages on the protest of the note depends upon whether the notes are to be construed according to the laws of Illinois or the laws of Missouri. If the latter, then the damages were properly allowed.

In 1 Jones on Mortgages (ed. of 1894) the author says: “The validity of a contract secured by a mortgage made in one State upon lands in another State, depends, so far as the usury laws affect it, upon the question, by the law of which State is the contract itself governed? If the loan is to be repaid in the State where it is made, the contract will be governed by the laws of that State, even when secured by mortgage of land situate in another State.” (Sec. 657.) “The authorities, generally, do not regard the circumstance that the loan is secured by mortgage, in determining whether it is usurious.” (Sec. 660.) “But as to the form and validity of the mortgage deed as a conveyance, the law of the place where the land is situated must always govern.” (Sec. 662.)

In 1 Daniel on Negotiable Instruments, (ed. of 1891, p. 930,) the author says: “The rate of interest which a bill of exchange or promissory note bears when no rate is specified, and the question whether or not it shall bear interest, are both determinable by the law of the place where it is expressly or impliedly to be paid.” (Sec. 918.) “The rule applicable to interest applies as well to what is distinctly termed ‘damages.’ Each party, drawer, endorser and acceptor is liable according to the place where the bill is drawn, endorsed or accepted.” (Sec. 921.)

Sections 1 and 2, chapter 98, of Hurd’s Statutes, entitled “Negotiable Instruments,” provide for the payment of damages on bills of exchange protested for non-payment in certain specified cases. This statute would seem to indicate that the allowance of damages to the holder of protested commercial paper was not contrary to the policy of the State.

Under the authorities we are of opinion that the laws of Missouri, where the paper was payable, must control.

Testimon}!- was introduced before the master showing what the services of the solicitor were reasonably 'worth in the case, and from the evidence the master reported as follows: “The master further reports, from the evidence, that a reasonable sum for expenses for attorneys for the trustee is §2250.” The evidence before the master also showed that the services of the Union Trust Company were reasonably worth §400. The report of the master was approved, and the court, in its decree, found “that the Union Trust Company is entitled to $2650 as a reasonable compensation for its services, and the necessary expenses incurred by it, in and about the execution of the said trust cause referred to master for computation.” Upon this finding the court, among other things, decreed “that out of the proceeds of the sale the master in chancery pay, first, the costs of this suit and of said sale, including $2650 to said Union Trust Company.” As has been seen, the decree was affirmed in the A.ppellate Court, and it is insisted that the decision approving the allowance of $2650 to the Union Trust Company is erroneous.

It will be observed that the allowance of $2650 embraced two items: First, $400 for the services of the Union Trust Company; second, $2250 to cover reasonable solicitor’s fees for foreclosing the mortgage. We will consider the two items separately.

As respects the first, the deed of trust contains this provision: “It is agreed that said trustee, under this indenture, shall be entitled to a reasonable compensation for all services rendered thereunder, to be paid by the said mortgagor.” Here is an express agreement by the mortgagor to pay the trustee compensation for his services, and the evidence shows that the compensation was worth $400,—the amount allowed by the court,—and we see no reason why, under the agreement and evidence, the allowance should be disturbed.

Appellants’ attorneys have cited and rely on Heffron v. Gage, 149 Ill. 182, as an authority sustaining their position. ' An examination of the decision in that case will show that it has no bearing on the question. In that case the circuit court allowed a trustee’s fee and also solicitors’ fees, but on appeal to the Appellate Court the decree was set aside as to trustee’s fee and affirmed in all other respects. The defendants appealed to this court, and we affirmed the judgment of the Appellate Court. But the trustee who was defeated in the Appellate Court assigned no cross-errors, and the ruling of the Appellate Court as to his fee was not called in question, and nothing was decided or said on that subject.

We now come to the question as to the amount allowed the Union Trust Company for solicitor’s fees. The mortgage contains a provision for releasing portions of the mortgaged property upon certain payments being made, and then follows this clause: “The mortgagor agrees to pay all expenses of such releases, as well as all other fees and charges of the said trust company in executing this trust.” Here the Union Trust Company, the trustee named in the mortgage, was called upon by the holders of the mortgage indebtedness to foreclose the mortgage. In order to do this it was necessary for it to employ solicitors,—men skilled in that department of the law. The company was not a lawyer, and could not, without the assistance of a solicitor, foreclose the mortgage, and whatever expense the company incurred in foreclosing the mortgage, reasonable in amount, would, in our opinion, fall within the clause of the mortgage supra, providing for fees and charges.

Objection is made to the amount allowed. The amount of the mortgage foreclosed was over §43,000. The mortgaged lands had been sold by the mortgagor, and in foreclosing care and skill were required, in order to secure a good title, under the decree, in case no redemption was made. Under all the circumstances Ave are not inclined to hold that the amount allowed was too large.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.