Opinion

Mallard v. Ewing

  • 121 Fla. 654
  • 164 So. 674
  • 1935 Fla. LEXIS 1628
Court
Supreme Court of Florida
Filed
Apr 5, 1935
Status
Published
Author
Ellis
On the bench
Brown, Buford, Davis, Ellis, Terrell, Whitfield
Cited by
36 cases
Authority
More cited than 37.7%

The opinion

On Rehearing

Ellis, P. J.

A rehearing was granted in this case upon the view expressed by this Court in its opinion that the allowance of solicitors’ fees by the Chancellor was erroneous. The point was discussed in oral argument on the 24th of September. The writer of this opinion was absent by reason of-a physical ailment for which he was being treated in a hospital.

*668

The Court, by a majority of its members, has decided

to-

recede from its holding on the matter of the allowance of solicitors’ fees and adopt the rule that when a mortgagee delivers to an attorney or solicitor a mortgage to be foreclosed, or to render any service in the matter of collecting the indebtedness secured by such mortgage, he assumes an obligation to the attorney to pay the latter a reasonable compensation for his services without reference to the provisions in the evidence of the indebtedness, either note or mortgage.

If the note or mortgage evidencing the indebtedness contains a promise or agreement to pay a definite sum to the promisee or mortgagee for attorneys or solicitors, that specific sum may not be recovered unless the promisee or mortgagee has definitely agreed or obligated himself to his attorney or solicitor to pay that definite sum for the service to be rendered which the attorney or solicitor may recover from his client by an action at law whether the promissor or mortgagor is insolvent or not and the security is not sufficient to pay the judgment or decree which may be obtained.

The rule announced in the case of Brett v. First Nat. Bank of Marianna,

97

Fla. 284 , 120 South. Rep. 554 , is construed to mean that the recovery of solicitors’ fees by the mortgagee may in no case exceed the sum he has actually paid to his solicitor or by agreement express or implied obligated himself to his solicitor to pay for the service to be rendered. See Berns v. Harrison, 100 Fla. 1105 , 131 South. Rep. 654 ; Jaudon v. Equitable Life Assur. Soc. of United States, 102 Fla. 782 , 136 South. Rep. 517 ; U. S. Savings Bank v. Pittman, 80 Fla. 423 , 86 South. Rep. 567 ; Hatch v. Trabue, 99 Fla. 1169 , 128 South. Rep. 420 ; Blount Bros. Realty Co. v. Eilenberger, 98 Fla. 775 , 124 South.

*669

Rep. 41; Sun City Holding Co. v. Schoenfeld,

97

Fla.

777,

122 South. Rep. 252 .

Applying the rule as thus construed and following the interpretation placed on it in Jaudon v. Equitable Life Assur. Soc. of United States,

supra,

and Blount Bros. Realty Co. v. Eilenberger,

supra,

the Court now holds that so much of the decree as allowed the recovery of solicitors’ fees is affirmed.

The writer of this opinion agrees to the rule as thus interpreted and he is of the view that the former opinion in nowise runs counter to such interpretation. The former opinion in the view of the writer merely held that the “testimony of the complainant shows that he did not obligate himself to pay his solicitor for the service to be performed.”

The writer is still of that opinion; that there was neither an express nor an implied promise to pay a definite sum or a reasonable fee for the service to be rendered. On the other hand there was a clear evasion of the question by the mortgagee when he was asked if he was obligated to pay Mr. Wood any amount of attorney’s fees in the matter.

My colleagues, however, are of a different opinion, deeming the evidence sufficient to establish an implied liability upon the complainant to pay his solicitor a reasonable fee for the services of his solicitor.

The Court therefore recedes from its former decision in-so far as it affects that portion of the decree relating to attorney’s or solicitor’s fees, and affirms that phase of the decree. In all other respects the former judgment of this Court is reaffirmed.

Whitfield, C. J., and Terrell, Brown, Buford and Davis, J. J., concur.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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