Lindley v. Ross

Per Curiam:

We think the learned judge below was right in holding, under the facts of this case, that there must be a demand and refusal to pay, before the defendants in the judgment can be subjected to the payment of attorney’s commissions. This was the rule laid down in Johnson v. Marsh, 21 W. N. 570, where it was said: “ In the absence of satisfactory evidence of a demand for payment before entering the judgment and issuing the execution, we think the necessity of resorting to the services of an attorney for collecting the money does not appear, and, without proof of such necessity, the defendants ought not to be subjected to the payment of the commissions.” To the same point is Moore’s App., 110 Pa. 433.

The learned judge found that no demand for payment had been made, and as it was admitted that the debt, interest, and all costs, except attorney’s commissions, had been full}' paid, he ordered satisfaction to be entered upon the record of the judgment. In this there was no error. In Daly v. Maitland, 88 Pa. 384, overruling Robinson v. Loomis, 51 Pa. 78, it was held that the attorney’s fee for collection, usually inserted in mortgages, is in the nature of a penalty, not liquidated damages, and is subject to the control of the court in the exercise of its equity powers. See, also, Imler v. Imler, 94 Pa. 372. As there was nothing in this case but the attorney’s commissions, the debt and costs, as before stated, having been paid in full, the court below, in the exercise of its equity powers had full control of the matter, and we fail to see any abuse of discretion in its exercise.

The order is affirmed.