Tucker v. Lowenthal , 118 Wash. 638 ( 1922 )

Hovey, J.

—This case involves a question of attorney’s fees.and costs. Appellant owned a mortgage upon property belonging to respondents, and, prior to the maturity of the debt, respondents forwarded to a bank in Tacoma the amount which they considered due, with directions to notify H W. Lueders, who had acted as attorney for the appellant in drawing the mortgage. Through an oversight the remittance was $10 short, but this was corrected and the full amount deposited before the loan became due. The body of the note does not contain any requirement as to the place of payment, but one of the notations on the corner is “At 408 Bk Cal Tacoma Wash,” which was the office address of Mr. Lueders. Mr. Lueders claimed a debt due him personally from the mortgagors, and he thereupon sued them in the justice court and garnished the hank where the money had been deposited. Mr. Lueders and the respondent personally visited the hank where the money was deposited and the latter offered to turn over the money if the fund were released from the garnishment, hut this Mr. Lueders declined to do. The respondents, through their attorney, offered to deposit ample funds to meet the liability claimed in the garnishment proceeding, hut were unable to secure a release. The suit of Mr. Lueders was subsequently settled and he immediately brought suit as attorney for appellant to foreclose the mortgage. Respondents kept their tender good for the original amount of the debt, with interest up to the original date of maturity, and the trial court denied foreclosure and gave the respondents their costs. Appellant contends that he should have been allowed an attorney’s fee and his costs of suit.

In our opinion, a proper tender was made in the first instance and respondents should not he held for more under the facts of this case.

The judgment appealed from is affirmed.

Parker, O. J., Holcomb, and Mackintosh, JJ., concur.