Citations
- 29 Ill. App. 77
Full opinion text
Pleasants, J.
In August, 1882, Graham, as surety, signed, with It. H. & J. Douthett, five promissory notes to Aultman & Co., a manufacturing corporation of Canton, Ohio, for a steam threshing rig, which were secured by mortgage on the machine and five horses. The Douthetts removed to Dakota, taking the mortgaged property with them. They paid the first of these notes, and Graham, after their removal, paid the second. When the mortgage expired, in August, 1884, a new one was executed by the Douthetts in Dakota, upon the same property, and five additional horses. In the spring of 1886 it was foreclosed, but the proceeds were insufficient to pay the two remaining notes in full. Thereupon, on the 13th of April, J. C. McMath, appellant’s attorney, wrote to Graham communicating the result reported, that the net proceeds amounted to §593.64, leaving a balance due of §127.36, with interest from April 6th, and asking if, as surety, he would not prefer to pay it at once, rather than require the company first to obtain, at useless cost, a judgment against the principals. On May 4th he wrote again, referring to his previous letter as still unanswered, and correcting an error therein. He says he omitted to include attorneys’ fees for foreclosing, in the costs, which reduced the net proceeds to §541.30, and left a balance of §179,70.
In the meantime Graham had informed his attorneys and also Messrs. Holder, Milner & Co., appellant’s agents at Bloomington, of the receipt and contents of the first, and told them he would not pay until he should see a certified copy of the mortgage, and an itemized statement of the expenses of foreclosure. They so informed appellant by letters addressed .to appellant, but which did not reach its attorney until May 8th. On that day he inclosed to its said agents copies of all the notes, with the credits indorsed, and of the constable’s certificate of the mortgage sale, with a statement of the expenses, showing gross proceeds $668, and expenses $74.36, leaving net proceeds $593.64, and wrote that after his first letter to Graham he was informed by his correspondents that the statutes of Dakota allowed attorneys’ fees in such a case to be charged against the mortgagor, and that $50 had been so charged in this, and that therefore he insisted on the corrected balance, and would proceed to judgment unless Graham would pay it. Deducting this fee also, the amount to be credited would be $543.64, which was, in fact, indorsed on the two notes. At the same time he wrote also to Graham, and to his attorneys, to the same effect, referring them to the copies of papers so sent to Holder, Milner & Go. He had no copy of the mortgage, and the original was in the recorder's office in Dakota. Graham then called on Holder, was shown these papers and talked the matter over with him.
There ivas some further correspondence between these parties, from which it appears that neither the notes nor the mortgage provided for attorneys’ fees in the event of foreclosure or other legal proceedings to collect the debt; that Graham claimed to have been told by Douthett that the balance stated was not right, but the only specific objections suggested were to the attorneys’ fees, an item of $6.25, for crying the sale, and the supposed charge of compound interest; that McMatli insisted all payments had been properly credited by indorsement, and that computation from the figures given would certainly show that the balance stated did not include any compound interest. It also appears that, in his talk with Holder, Graham waived all objections to the account except to the item for attorneys’ fees.
On the 4th of August McMath wrote to him as follows: