Brahan v. First National Bank of Clarksville , 72 Miss. 266 ( 1894 )

Alexander, Special J.,

delivered the opinion of the court.

In each of the notes executed to Ragsdale, appellant agreed to pay ten per cent, commission on the face thereof, ' ‘ if not paid at maturity, and if collected by an attorney. ’ ’ The validity of such stipulations has been more than once affirmed by this court, and is ho longer an open question in this state. Meacham v. Pinson, 60 Miss., 217; Eyrich v. Bank, 67 Ib., 60.

It is not controverted that the judgment appealed from represents the commissions only on such of the notes as were past due when placed in the hands of appellee’s attorneys, who after-Avards collected the principal and interest. Appellant rested his defense in the court below, and seeks a reversal here, on the ground that, before maturity of said notes, he was garnished in the chancery suit against Ragsdale, and paid the principal and interest promptly after his discharge, consequent upon the dismissal of the suit; that the services of attorneys were unnecessary, since he would have paid at maturity but for the garnishment. Instead of demurring to defendant’s plea setting-up these facts, plaintiff joined issue thereon, and the evidence was mainly directed to the controverted question, whether defendant, in fact, promptly and voluntarily made payment after being released from the garnishment.

As we view the case, this issue was immaterial. The mere pendency of the garnishment against Brahan did not exempt him from liability to an action on the notes. Ragsdale or his assignee still had the right to reduce the notes to judgment, this being a mere step towards collecting them. Railway Co. v. Falton, 71 Miss., 385. If appellant had wished to escape possible liability for attorneys’ fees and accumulating interest, he should have availed of his privilege to pay into court the amount of the notes as they fell due, suggesting the fact of their negotiation if known to him. Smith v. Bank, 60 Miss., 69. He failed to pursue this course, and, as appears from his own testimony, did not care to be released from the garnishment. The result reached, however arrived at, is the only one proper under the evidence, and the judgment is

Affirmed.

Woods, J., being disqualified by reason of relationship, C. H. Alexander, Esq., a member of the bar, was selected by-agreement of the parties to sit in his place in the hearing and decision of the foregoing cause.