A. W. Tedcastle Co. v. Garfinkel , 148 Miss. 507 ( 1927 )

Smith, C. J.,

delivered the opinion of the court.

The appellant sued the appellee on two promissory notes, each for two hundred sixteen dollars and sixty-three cents, executed on May 19, 1924, one maturing November 1st, and the other^ November 15th, after date. Both notes recite that they are “payable at Bank of Commerce, with interest from maturity, at the rate of eight per cent, per annum, with all costs of collection, including ten per cent, attorney’s fees.”

On motion of the appellee, the court below excluded the evidence for the appellant and directed the jury to return a verdict for the appellee, the ground of the motion being that the notes each provided for a rate of interest greater than twenty per cent, per annum, in violation of section 2678, Code 1906 (section 2223, Hemingway’s Code 1927).

The contention of the appellee in support of the ruling of the court below is “that the note contains an absolute promise to pay ten per cent, of the amount of the note, and is not based upon any default in the payment at maturity, but provides for this payment in any contingency. ’ ’

The promise is not to pay two hundred sixteen dollars and sixty-three cents, “including ten per cent attorney’s fees,” but is to pay two hundred sixteen dollars and sixty-three cents, “with all costs of collection, including ten per cent, attorney’s fees.” The attorney’s fee is included in the ‘ ‘ costs of collection, ’ ’ and the maker of the notes will be liable therefor when, and not until, an attorney’s fee has been properly incurred by the holder of the notes in collecting them.

Reversed, cmd remanded.