Tinsley v. . Hoskins , 111 N.C. 340 ( 1892 )

MacRAE, J., dissents. The defendant executed to the plaintiff a promissory note for the sum of $146.35, payable on 1 July, 1889, "with legal interest from maturity," and it was stipulated therein "that in case this note is collected by legal process, the usual collection fee shall be due and payable therewith."

The sole question presented for review is whether such a stipulation is valid and enforceable. The point has never been passed upon by this Court, and there is some conflict of judicial decision upon the subject in other states. We think, however, that the ruling of his (341) Honor is sustained by the better reasoning, as well as by a decided preponderance of authority. In Bank v. Sevier, 14 Fed., 662, it is declared that "such a provision is a stipulation for a penalty or forfeiture, tends to the oppression of the debtor and to encourage litigation, is a cover for usury, is without any valid consideration to support it, contrary to public policy and void." To the same effect are the cases of Meyer v. Hart,40 Mich. 517; Toole v. Stephen, 4 Leigh., 581;Boozer v. Anderson, 42 Ark. 167; Shelton v. Gill, 11 Ohio, 417; Martin v.Trustees, 13 Ohio, 250; Dow v. Updike, 11 Neb. 95.

In Bullock v. Taylor, 39 Mich. 137, Justice Cooley uses the following very forcible language: "A stipulation for such a penalty, we think, must be held void. It is opposed to the policy of our laws concerning attorney's fees, and it is susceptible of being made the instrument of the most grevious wrong and oppression. It would be idle to limit interest to a certain rate, if under another name forfeiture may be imposed to an amount without limit. The provision in those notes is as much void as it would have been, had it called the sum unpaid by its true name of forfeiture or penalty."

In Witherspoon v. Musselman, 14 Bush., 214, the agreement was to pay a reasonable attorney's fee in the event of the note being "collected by suit." The court placed its refusal to enforce such contract upon the ground that "they are not only in the nature of penalties, but that they are contrary to public policy and tend to encourage litigation."

A discriminating writer in 14 American Law Review, 858, remarks: "It seems to us to be more consistent with public policy to consider such agreements as absolutely void. They can readily be used to cover usurious agreements, and excessive exactions may be under the guise of an attorney's fee."

1 Daniel, Negotiable Instruments, sec. 62a, expresses the opinion that, "unless there be some statute under which such stipulations are permissive, it certainly tends to the oppression of debtors to sanction their incorporation in commercial instruments, and they are, (342) therefore, against the policy of the law, and void."

In consideration of the foregoing authorities, and in view of the serious evils that may result from such an innovation, we are of the opinion that stipulations like the one now sued upon, when incorporated into obligations of this particular character, are against public policy and therefore invalid.

AFFIRMED.

Cited: Brisco v. Norris, 112 N.C. 677; Williams v. Rich, 117 N.C. 240;Turner v. Boger, 126 N.C. 302; Bank v. Lumber Co., 128 N.C. 195.