On Rehearing. The motion by appellant is without merit, except possibly wherein it challenges our finding that, the Ogle note of $1,079, after default was made, was placed in the hands of a "Mr. Carpenter," an attorney, for collection, causing the attorney fee to become payable. The record reflects that the note was placed in the hands of appellee's attorney for collection; that suit was brought thereon, and that, when the question of forgery came up, a Mr. Carpenter wrote a letter to Ogle relative to the note. The "Mr. Carpenter" was Wilkinson's attorney, during the negotiations for the loan and policy, so naturally we concluded that he was the attorney with whom the contract for attorney fee was made. On further reflection, we find that the note was placed in the hands of the attorneys, who instituted this suit, and the contract was made with them, instead of with Mr. Carpenter, causing the attorney fee to become payable.
We feel that the error complained of is immaterial. The suit was primarily brought against Ogle for the amount of the note, interest, and attorney fee. Ogle did not file an answer, and appellant defended only as to the matters alleged against it, on the policy of insurance. Judgment by default was entered against Ogle, and, on evidence submitted, the trial court found in favor of appellee for the amount of the note, interest, and attorney fee, and we approve the findings.
Again reviewing the record, it clearly appears that appellee Wilkinson, because of the forgery, was deprived of the benefits of the vendor's lien and note, given to him as security, and which appellant's policy of indemnity was given to protect the Ogle note, principal, interest, and attorney fee. The Ogle note would have been collectible out of the security, if it had been genuine, thus appellee's actual loss, for which appellant became liable by the terms of its policy, was the amount of the Ogle note, principal, interest, and attorney fee, limited only to an amount of $2,650.
With the exception noted, the motion for rehearing is overruled.
Motion overruled. *Page 769