filed the following concurring opinion:
So long as contracts stipulating for the payment by debtors of the expenses of litigation incurred by their creditors, shall be held to be within the policy of the law, the rule that has prevailed hitherto ought to be maintained. That rule has been to treat the amount of collecting fees agreed upon as stipulated damages, and not as a penalty. The agreements of parties should be carried out except where, in affidavits of defence or in trials of causes, circumstances of oppression or injustice should be affirmatively disclosed, or an attempt to evade the usury laws should be indicated. In every such instance, the question as to the amount of the allowance should be settled by a jury. Scarcely any case could arise in which some element of fact outside the instrument in suit would not enter. And an inquiry into doubtful and complicated facts would be fré*389quently indispensable. The judges of the eourts ought not to be required to assume a duty of this sort.
Acquiescing in the action of the majority of the court in reversing the judgment, I would refer the question in controversy to the determination of a jury.