SARASOTA PUBLISHING COMPANY, A FLORIDA CORPORATION, PLAINTIFF IN ERROR,
v.
E. C. PALMER & COMPANY, LTD., A CORPORATION, DEFENDANT IN ERROR
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Sarasota Publishing Company sued E. C. Palmer & Company on a promissory note containing a 10% attorney's fees clause. The lower court entered default judgment including $188.50 in attorney's fees without proof that the plaintiff had actually incurred or obligated itself to pay such fees. The Florida Supreme Court held that attorney's fees are recoverable only to the extent the creditor actually pays or obligates itself to pay them, requiring such proof even when the contract provides for them.
Attorney's fees are recoverable only when the creditor pays or obligates itself to pay such fees, and the amount recovered cannot exceed the stipulated percentage. The defendant is liable only for the sum that will indemnify the creditor for the actual fees incurred or obligated, not merely because the contract contains an attorney's fees provision. The Clerk was without authority to enter judgment for attorney's fees without evidence of the plaintiff's obligation to pay them.
“The contract to pay attorney's fees is a contract for indemnity.”
Establishes the legal principle that attorney's fees clauses are fundamentally indemnity contracts, not automatic entitlements.
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— In this case the suit was on a note which provided for attorney’s fees in the sum of ten per cent in the event of default in the payment of the note. In regard to this item it was alleged in the declaration as follows:
“That because of the failure of said defendant to pay said note as aforesaid, the same has been placed in the hands of an attorney for collection and suit instituted thereon; and the plaintiff claims the principal and interest on said note, together with the ten per cent attorneys fee provided for therein on- the principal and interest.”
There was no allegation in the declaration that the plaintiff had obligated to pay the attorney’s fees ip. any sum whatever. The contract to pay attorney’s fees is a contract for indemnity. Brett vs. First National Bank, 97 Fla. 284, 120 Sou. 554; Brooks vs. Roberts, 97 Fla. *304374, 120 Sou. 765. Winchester v. Hak, 124 So. 812, 98 Fla. 1071.
Default was entered against the defendant for failure to plead, answer or demur and, thereafter, on the 12th day of March,-1929, final judgment was entered pursuant to default by the Clerk of the Court in which was included the sum of $188.50 for attorney’s fees. The record discloses no evidence to have been submitted to the Clerk in proof of the plaintiff’s right to recover attorney’s fees and, therefore, the Clerk was without authority to enter a judgment for attorney’s fees if under conditions, which it is not necessary for us here to decide, a judgment for such item could be entered by the Clerk.
It is contended by the defendant in error that because the declaration was not attacked by demurrer or otherwise, the defects in the declaration were waived. This might be tenable if proof had been introduced to show that the plaintiff had paid, or obligated to pay as attorney’s fees any specific amount not exceeding ten per cent. The fact that the note constituting the contract between the parties obligated defendant to pay ten per cent as attorney’s fees is only enforceable in the event that the holder of the note pays or obligates himself to pay such fees, in which event the defendant is liable for only such sum not exceeding the stipulated amount which will indemnify the holder in this regard.
No other reversible error appears in the record. Therefore, if the plaintiff will within thirty days after the filing of the mandate in the lower court enter a remittitur in the sum of $188.50, the judgment for the balance will stand affirmed as of the date of such judgment. Otherwise the judgment will stand reversed. It is so ordered.
Affirmed, conditioned on remittitur.
Ellis and Brown, J.J., concur.
*305Whitfield, P. J., and Terrell and Davis, J. J., concur in the opinion and judgment.
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Merchs. Transp. Co. v. Daniel, 109 Fla. 496 (Fla. 1933)…pplicable to demurrers to the evidence. Gunn v. Jacksonville, 67 Fla. 40, 64 Sou. Rep. 435; Stevens v. Tampa Electric Co., 81 Fla. 512, 88 Sou. Rep. 303; Estes v. Manwarren, 100 Fla. 738, 129 Sou. Rep. 917; Gulf Refining Co. v. Ankeny, 102 Fla. 151, 135 Sou. Rep. 521. Viewing the testimony and other evidence in this case in its most favorable aspect to the plaintiff below, the jury would have been warranted in finding that the driver of the truck had a clear view of the bridge where deceased was working, for a…
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Cheek v. McGOWAN Elec. Supply Co., 511 So. 2d 977 (Fla. 1987)…a. 3d DCA 1985); Lhamon v. Retail Development, Inc., 422 So. 2d 993 (Fla. 5th DCA 1982). This Court [*984] has characterized an attorney’s fee provision in a promissory note as contract of indemnity. See Sarasota Publishing Co. v. E.C. Palmer & Co., 102 Fla. 303, 135 So. 521 (1931); Blount Brothers Realty Co. v. Eilenberger, 98 Fla. 775, 124 So. 41 (1929). Whether attorney’s fees provided for by contract are considered stipulated damages sought in connection with a breach of the main contract or as damages…
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Tampa Shipbuilding & Eng'g Corp. v. Adams, 132 Fla. 419 (Fla. 1938)…4 So. 435; Davis v. Ivey, 93 Fla. 387, 112 So. 264; Florida East Coast Ry. Co. v. Hayes, 66 Fla. 589, 64 So. 274; Jacksonville v. Glover, 69 Fla. 701, 69 So. 20; Gravette v. Turner, 77 Fla. 311, 81 So. 476; Gulf Refining Co. v. Ankeny, 102 Fla. 151, 135 So. 521. The judge should never direct a verdict for one party unless the evidence is such that no view which the jury may lawfully take of it favorable to the other party can be sustained, nor should a motion for directed verdict be granted where the evid…
Previewing 3 of 20 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brett v. The First Nat'l Bank of Marianna, 97 Fla. 284 (Fla. 1929)
- Brooks v. Roberts, 97 Fla. 374 (Fla. 1929)
- Winchester v. Anton Hak, Jr., 98 Fla. 1071 (Fla. 1929)