Being unable to assent to the conclusion reached in the foregoing opinion, I desire to briefly state my reasons for dissenting therefrom.
The amount of attorney fees the plaintiff is entitled to recover was not fixed by contract. Such amount is in the nature of unliquidated damages. The amount of recovery was put in issue by the answer. The plaintiff was required to introduce proof on the subj ect. The issue formed by the pleadings was either one of law or fact. It was not the former, and, therefore, must have been the latter. Such issue, and the effect of the testimony relating thereto, must be passed upon by either the court or jury. The action in which the issue was joined, and proof required, was an ordinary proceeding. The Code provides, “Issues of fact, in an ordinary proceeding, must be tried by jury, unless the same is waived.” § 2740. There has been no waiver of a jury, and I therefore conclude this issue of fact should have been tried by jury. The notes simply provide that the amount of attorney’s fees, when properly ascertained, shall be taxed as a part of the costs, and by no means provide or determine the question how the amount is to be ascertained.
Costs, as a general rule, are fixed by statute. In exceptional cases, only, can the court determine the amount thereof, and such cases are usually defined by statute.
It is true the fee is earned during the progress of the case, *56but this by no means determines the question. Nor can it be said to be a legitimate argument against the right of a party to have a jury.
Day, J., concurs with me in the view here taken.