The opinion
Mr. Justice Cartwright delivered the opinion of the court:
Appellee, who was the holder of promissory notes, secured by a trust deed, executed by Zura Fuller and Frances M. Fuller, his wife, filed a bill to foreclose the trust deed, and prayed for an allowance of solicitor’s fees as provided therein. Oakford & Fahnestock, a corporation, and Aaron S. Oakford, were also made parties defendant under an averment that they had or claimed some interest in the mortgaged premises. They answered, admitting all allegations of the bill but disputing the right to a solicitor’s fee, and averring that after the suit was commenced they had tendered to the complainant the amount due on the notes and trust deed for principal and interest, together with the costs of suit, and this tender they brought into court. The cause was referred to the master, and it was admitted before him that the entire amount due, not including any solicitor’s fee, had been tendered as alleged and deposited with the clerk of the court. Testimony was taken showing that §75 would be a reasonable fee for complainant’s solicitor, and the master reported that complainant was entitled to a decree of foreclosure for the amount found due for principal and interest, and also for said solicitor’s fee and costs of the suit. Exceptions to the allowance of the solicitor’s fee were overruled, and a decree of foreclosure was entered accordingly, which has been affirmed by the Appellate Court.
The agreement of the parties with respect to the solicitor’s fee, the condition under which it should be allowed and the manner of payment is the same in this case as in the cases of Cheltenham Improvement Co. v. Whitehead, 128 Ill. 279 , and Heffron v. Gage, 149 id. 182, except that the stipulation is for a reasonable fee, while in one of those cases it was for five per cent of the amount due and in the other for §1000. The decisions in those cases must control in this.
The bill had been filed and reasonable fees to that extent had been earned when the offer to pay was made, and there was no offer to pay such reasonable fee so earned. If the defendants desired to make payment of the amount then due, so as to avoid further cost and expense, they should have offered to pay a reasonable fee for the service already performed.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.