This is an action brought by plaintiff in error against the defendant in error to recover upon a promissory note executed by the defendant in error to the plaintiff in error for the sum of $897.25, and to enforce a lien upon 59 shares of stock which had been deposited by the defendant in error as collateral to secure the payment of said note.
The defendant in error answered and filed a cross-petition seeking a recovery against the plaintiff for $327 upon the averment that the said note upon which this action was brought had been overpaid by the collection by the plaintiff in error of notes which had been deposited by the defendant in error as collateral for notes previously given by the defendant to the First National Bank of Rush Springs, and by said bank transferred and assigned to the plaintiff in error, and that the note here sued on was given for a balance claimed to be due upon the said original notes. Hereinafter the parties will be designated as they were in the trial court.
Plaintiff upon the conclusion of the evidence moved the court to continue the cause upon the ground of surprise, which motion was overruled and excepted to. The defendant did not demur to the evidence of the plaintiff or ask a directed verdict in his favor; therefore it is useless to recite the evidence. The jury returned a verdict for the defendant. Upon the rendition of the verdict of the jury the plaintiff moved the court for a judgment for plaintiff notwithstanding the verdict, which motion was overruled, but not excepted to.
Plaintiff moved for a new trial upon various grounds, especially upon the grounds of newly discovered evidence which motion was overruled and excepted to, and judgment entered upon the verdict, and plaintiff taxed with costs, including therein an attorney's fee for the defendant in the sum of $50 without evidence as to the value of such fee, to which the plaintiff duly excepted. To reverse said judgment this appeal is prosecuted.
Plaintiff assigns the following errors:
"(1) The court erred in overruling the motion of plaintiff for new trial.
"(2) Accident and surprise, which ordinary prudence could not have guarded against.
"(3) Error in the assessment of the amount recovered.
"(4) That the verdict and judgment are not sustained by sufficient evidence and are contrary to law.
"(5) Newly discovered evidence material to the plaintiff which it could not with reasonable diligence have discovered and produced at the trial.
"(6) Error of the court in overruling motion of plaintiff for a continuance.
"(7) Error of the court in rendering judgment for the defendant in the sum of $50 as attorney fee, when same had not been claimed in the pleadings of defendant, and no evidence introduced in support of any such contention on the part of said defendant.
"(8) Error of the court in overruling motion of plaintiff for judgment on the special findings notwithstanding the finding of the jury. *Page 230
"(9) Error of the court in refusing to grant plaintiff a new trial upon the affidavits submitted in support of its motion for a new trial upon the grounds of newly discovered evidence."
We will consider each of said assignments of error, but not in the order in which they are assigned.
It is earnestly contended by the plaintiff that the court should not have admitted evidence of credits claimed by the defendant of collections made prior to the execution of the note sued upon, and that the note sued upon was an adjustment of all prior matters between the parties, and the effect of said evidence was to vary the effect of a written instrument, and with this contention we cannot agree. We are of the opinion, and so hold, that said evidence was not to vary the effect of a written instrument, but to support the plea of partial want of consideration in the note sued upon, which was a good defense pro tanto.
"The rule that parol evidence is not admissible to contradict or vary an absolute engagement to pay money on the face of the bill or note does not exclude evidence as between the original parties showing a total or partial failure of consideration." 3 R. C. L. 943.
See Peden v. Moore, 1 Stew. P. (Ala.) 71, 21 Am. Dec. 649; Stockton Sav. Loan Soc. v. Giddings, 96 Cal. 84, 30 P. 1016, 21 L. R. A. 406, 31 Am. St. Rep. 181; Pryor v. Ludden Bates Southern Music House, 134 Ga. 288, 67 S.E. 654, 28 L. R. A. (N. S.) 267; Folsom v. Mussey, 8 Greenl. [Me.] 400, 23 Am. Dec. 522; McCallum v. Jobe, 9 Baxt. [Tenn.] 168, 40 Am. Rep. 84; Peterson v. Johnson, 22 Wis. 21, 94 Am. Dec. 518; Foster v. Clifford, 44 Wis. 569, 28 Am. Rep. 603.
"The consideration of a contract, in whatever form it may have been, may, as between the immediate parties to it, be the subject of inquiry." 3 R. C. L. 924.
See Fisher v. Salmon, 1 Cal. 413, 54 Am. Dec. 297; Folsom v. Mussey, 8 Greenl. [Me.] 400, 23 Am. Dec. 522; Harris v. Alcock, 10 Gill J. [Md.] 226, 32 Am. Dec. 158; Schmittler v. Simon,114 N.Y. 176, 21 N.E. 162, 11 Am. St. Rep. 621.
"Want of consideration may be pleaded to a part, as well as to the whole, of the cause of action." 9 Cyc. 737.
"Absence or failure of consideration is matter of defense as against any person not a holder in due course, and partial failure of consideration is a defense pro tanto, whether the failure is an ascertained and liquidated amount or otherwise." Section 4078, Revised Laws 1910.
The plaintiff having failed to demur to the evidence or ask a directed verdict in its favor in a law case, the sufficiency of the evidence to support the verdict cannot be presented on appeal to this court. Muskogee Electric Co. v. Reed,35 Okla. 334, 130 P. 157; Reed v. Scott, 50 Okla. 757, 151 P. 484; Simpson v. Mauldin, 61 Okla. 92, 160 P. 481; J.W. Oaks v. H.S. Samples, 57 Okla. 660, 157 P. 739.
The question of a continuance is a question of discretion of the court, and, unless there appears to have been an abuse of such discretion in denying a continuance, this court will not reverse a judgment on that ground. Comanche Mercantile Co. v. Waymire, 55 Okla. 318, 155 P. 542, Daugherty v. Feland,59 Okla. 122, 157 P. 1144; Walton v. Kennamer, 39 Okla. 629,136 P. 584.; Jennings Co. v. Dyer, 41 Okla. 468, 139 P. 250.
After careful consideration of the record, we are unable to see that the trial court, in overruling said motion for continuance, abused such discretion.
The most tenable ground advanced for a new trial is "of averred newly discovered evidence," which so-called newly discovered testimony is shown by the affidavits filed in support of said motion to be entirely untenable, for the reason that it clearly appears the plaintiff had knowledge of such averred newly discovered evidence prior to the trial, First Nat. Bank of Taloga et al. v. Farmers' State Guaranty Bank of Thomas et al., 62 Okla. 30, 161 P. 1063.
In 29 Cyc. 881, it is said:
"A new trial on the ground of newly discovered evidence will not be granted for evidence that was known to the unsuccessful party at the time of the trial."
Killebrue v. Railway Co., 137 Ga. 681, 174 S.E. 270, Adamson, Adm'r, v. Traction Co., 111 Va. 556, 69 S.E. 1055, Carlton v. Monroe, 135 Mo. App. 172, 115 S.W. 1057, Bertram v. Dredge Co., 32 Ind. App. 199, 69 N.E. 479, Nehring v. Ricker,126 Ill. App. 262, State v. Gregory, 31 S.D. 425, 141 N.W. 365, State v. Lamothe, 37 La. Ann. 43, Johnson v. Brown (Tex. Civ. App.) 65 S.W. 485, and Mercantile Co. v. Gillespie,14 Okla. 143, 77 P. 183, all support the rule that a new trial for newly discovered evidence should be refused where the existence of such evidence was known prior to the trial. We are of the opinion, and so hold, that the motion for a new trial was without merit.
The refusal of the court to sustain a motion for a judgment non obstante veredicto *Page 231 was not excepted to, and therefore said motion will not be considered.
"Errors alleged to have occurred at the trial in the lower court, unless the same are excepted to, will not be considered on review in this court." Strahan v. De Soto Paint Mfg. Co.,55 Okla. 444, 154 P. 1128.
However, had the refusal of the court to entertain the motion for judgment non obstante veredicto been excepted to, by reason of the failure of the plaintiff to demur to the evidence or to ask for an instructed verdict in its favor, the evidence in this case, as previously said, is not before this court, and without having the evidence before us we could not intelligently review the action of the court on such motion, and consequently would decline to consider the same.
It is seriously contended by the plaintiff that the court was without authority to include in the cost, and render judgment therefor for the defendant, an attorney's fee.
Section 3877, Revised Laws 1910, provides:
"In an action brought to enforce any lien the party for whom judgment is rendered shall be entitled to recover a reasonable attorney's fee, to be fixed by the court, which shall be taxed as costs in the action."
It cannot be questioned that this action was not only to recover upon the note sued upon, but also to enforce a lien which the plaintiff claimed to have on the stock evidenced by the certificates of stock which had been deposited as collateral for the note, and that therefore, the defendants having recovered in the action, an attorney's fee for him may properly be included in the cost. But a serious question arises as to whether or not such fee can be fixed by the court without evidence as to the value of the attorney's fee.
The cases of Futoransky v. Pope, 57 Okla. 707, 157 P. 905, L. R. A. 1916F, 548, and Continental Gin Co. v. Sullivan,48 Okla. 332, 150 P. 209, cited by defendant in error, we do not think are in point, for the reason that the amount of attorney's fee in each of said cases is fixed at 10 per cent. in the note. In short, the amount of attorney's fee in said cases was contracted for at a given sum, and hence evidence was not necessary to establish the value of the attorney's fee involved in said cases.
The authorities are not entirely harmonious as to whether the court, without evidence, can award an attorney's fee, when such attorney's fee is authorized by statute.
Section 3877 was adopted from Kansas and after same had been practically construed, and we prefer to follow the view laid down in Kansas that at attorney's fee cannot be taxed by the court without evidence as to the value of such fee.
In State of Kansas, on the Relation of Charles Curtis, County Attorney, v. Frank Durein et al., 46 Kan. 695, 27 P. 148, it is held:
"Upon the rendition of a judgment in such contempt proceedings, the court rendering the same may allow a reasonable attorney's fee in favor of the plaintiff and against the defendant therein, to be taxed and collected with other costs in the case; but no such allowance can be made in the absence of any proof as to what constitutes a reasonable fee."
In Missouri Pacific Railway Company v. J.C. Merrill,40 Kan. 404, 19 P. 793, it is said:
"It is true the statute provides that the court shall allow a reasonable attorney's fee, which shall become a part of the judgment. The word 'court,' however, was doubtless used by the Legislature in the broader sense as including both judge and jury or judge alone, according as the court may be constituted when the trial occurs. What is a reasonable attorney's fee is a question of fact which should be submitted and determined the same as any other fact arising in the case."
These Kansas authorities are not in conflict with the decisions of our own court in the cases of Futoransky v. Pope and Continental Gin Company v. Sullivan, supra, relied upon by defendant.
We are of the opinion, and so hold, that the court in awarding an attorney's fee as part of the costs was in error, but it is not such an error as should work a reversal of this cause, and therefore the judgment is modified so as to exclude from said costs taxed the said attorney's fee allowed defendant in the sum of $50, and, as so modified, affirmed.
By the Court: It is so ordered.