dissenting. I think the judgment of the district court should be reversed. The defendant had a right to contract that, in case counsel should be employed to enforce the payment of a note due by him, he would pay the counsel so employed. This contract he made. He did not pay his note. Counsel was employed to enforce payment, and plaintiff contracted to pay counsel six hundred dollars for his services, for which plaintiff gave him his note. The note was paid.
It is possible that plaintiff might have included this amount in the demand which he made when the suit was brought. But I think he could have made the demand then, or by a separate action and at a different time. His rights were not destroyed simply because he did not assert them at a particular time or in a particular form.
The defendant’s contract was to pay in case the plaintiff paid. The plaintiff did pay, and for the amount paid I think the defendant is liable.
As to the prescription, upon which the case turns here, I do not think it applies. The fee was paid in a note. When the note was paid the plaintiff’s right accrued, and not before. This suit was brought within this proper time.
I therefore dissent.