I dissent from that part of the majority opinion holding that the appellant is liable for attorney's fees. *Page 155
The notes provide "and ten per cent. additional as attorney's fees, if this note is placed in the hands of an attorney for collection."
The suit was filed by Jones and his wife for an accounting, and set out in detail the several notes and the several payments, and alleged that the notes were usurious; that, if the usury was applied, it would more than pay the outstanding notes, and that Brewer would be indebted to the appellants in the sum of money named in the bill.
The facts stated in the bill show that it was necessary for the appellants to file a bill and have the court ascertain the true state of accounts between the parties. The notes were not placed in the hands of an attorney for collection prior to bringing this suit, but were placed in the hands of an attorney for the purpose of defending the suit and securing such judgment in favor of Brewer as the court might award after the hearing. The provision in the note for the payment of the attorney's fees clearly contemplated that the attorney's fees were to be paid only when the notes were placed in the hands of an attorney by the plaintiff before any suit was filed by the defendant. The language does not contemplate the payment of attorney's fees to an adversary, where it is necessary to institute suit against such adversary to learn the state of the account or the amount due.
I think the present case is distinguished from the case ofBurt v. Brashears, 118 Miss. 339, 79 So. 182, in this: In that case, the notes were placed in the hands of the attorneys before there was any proceeding to collect the notes, and the trustee, after such notes were placed in the attorneys' hands, under the direction of the attorneys proceeded to foreclose the deed of trust given to secure their payment, whereupon an injunction was sued out to prevent the foreclosure. The liability had already been incurred by the placing of the notes in the hands of the attorney prior to the injunction in said suit, and therefore in my opinion that case is not controlling *Page 156 here. The court in that case, at page 343 of the Mississippi Reports (79 So. 183), said:
"It is conceded that the notes were placed with the law firm of Sillers Sillers for collection, and, under the express contract, attorney's fees became due and payable as a part of the note."
In the case before us, the notes were not in the hands of an attorney at the institution of this litigation, and under familiar rules the rights of the parties are to be determined as of the date of the institution of the suit. Not having the right to collect attorney's fees when the injunction suit was filed, they could not therefore acquire such right, especially when they were in default, as found by the court, in not rendering a true statement of accounting to the maker of the note. I think, however, the decision in Burt v. Brashears, supra, is unsound, and ought to be overruled, because attorney's fees should not be allowed where the creditor refuses to accept the full amount due and the debtor has to litigate to get his rights. Three of the judges are of the opinion that said case ought to be overruled because wrongly decided.
It seems to me utterly unfair and not within the contract embraced in the note for the holder of the note not to accept the real amount due.