Succession of Foster

Ok Rehearing. Monroe, J. Thomas J. Foster, now deceased, borrowed $6600.00 from Mrs. Cecelia T. Blake, testamentary executrix of Eugene W. *1674 Blake, deceased, and gave, in acknowledgement thereof, his three promissory notes, of $2200.00 each, dated March 12, 1891, and made payable, upon the twelfth days of March, 1892,1893, and 1894, respectively, with interest at the rate of 8% per annum from date until paid. To secure these notes, he executed a first mortgage upon a plantation shown to be worth $25,000.00. The act of mortgage contains the following provision, to-wit: “In case it becomes necessary to resort to legal proceedings for the recovery of the amount of said notes, or of any part thereof, he, the said Thomas J.' Foster, hereby binds and obligates himself to pay the fees of the attorney who may be employed for that purpose, which fees are hereby fixed at ten per cent, on the amount sued for.” The present litigation arose out of a difference of opinion between counsel employed by Mrs. Blake and the administrator of the Foster succession as to the liability of the latter for attorneys’ fees under the clause above quoted. The maker of the notes died within the year following their execution, and Mr. J. Warren Foster was appointed administrator of his succession. The interest upon all the notes was paid by him regularly, in the years 1892, 1893, 1894 and 1895. That it was so paid in 1892 and 1893 is admitted. As to the years 1894 and 1895, counsel for the administrator assert, most positively, that it was paid when due. In their brief, on rehearing, they say: “Such interest, it is admitted, was paid at maturity.” Upon the other hand, counsel for the plaintiff say in their brief: “We know of no such admission, and it is not a fact.” In this situation, we must rely upon the evidence in the record. It is admitted that, in 1896, the administrator neglected to pay the interest upon the 12th of March, and for several months -afterwards, and it appears that Mrs. Blake placed the notes in the hands of her attorneys in July of that year, at which time the interest, which fell due March 12th, was still unpaid. It is claimed by the administrator, that this was the only interest which was then unpaid. It is admitted that this interest, due March 12th, 1896, was paid July 27, 1896. It is also admitted that the interest which fell due March 12th, 1897, was paid at maturity. The testimony of the administrator given in 1898,. upon the subject of his payment of interest, is as follows, to-wit: “A. The interest has been paid up to March 12th, ’97. “Q. Has it been paid regularly at the end of each year ? *1675 “A. Yes, sir, with the exception of once, there was a lapse of two- or three months. “Q. lias it been the course of your dealing with Mrs. Blake to pay the interest at the end of each year? “A. Yes, sir. “Q. On the whole amount of the notes? “A. Yes, sir. “Q. On those notes which were due as well as those which were not due? “Á. Yes, sir.” His cross-examination upon the point was confined to a single question, to-wit: “Q. Mr. Foster, I understood Mr. Caft'ery to ask you if you hadn’t paid all the interest due, now did you pay any interest that was not due?” “A. No, sir, all the interest I paid was due.” The only testimony given by the counsel for the plaintiff, himself,, upon the subject, is as follows: “Some days before the 22nd of July, 1896, Mrs. Blake handed me the notes now sued on. The interest had not been paid at that time. * * * Mr. Foster proposed to pay the interest up to the 12th of March, 1896, and asked for a continuance of the notes. I insisted upon the indorsement, and Mr. Foster gave a check or a draft, and it was understood that, when it was paid, I was to indorse the interest upon the back of the notes, which I did do. Afterwards, on the twenty-second of February, 1897, I wrote him, and’ he sent me a letter * * * enclosing me a check * * . * for the amount of the interest — and we indorsed that payment • upon the-notes.” The indorsements upon the notes are as follows, to-wit: “Interest for the first year, paid, March 12, 1892. (Signed) “Cecelia T. Blake. “Interest paid up to date, March 12th, 1893. (Signed) “Cecelia T. Blake. “Interest paid up to March 12th, 1896. . “Interest paid up to March 12, ’97, and payment extended one-year; February 27th, 1897. (Signed) “Beattie & Beattie.” This is all that we find upon the point at issue. Under these circumstances, and as Mr. Foster testifies, positively and specifically,. *1676 that the interest was paid regularly every year, except one (referring to year 1896), as ho gave this testimony in the presence of the plaintiff’s counsel, who did not question its correctness, either by the cross interrogatories propounded, or in the testimony which he, himself, appears to have given as soon as Foster left the stand, we can find no sufficient reason for not accepting it as true. We repeat, then, -that the interest was regularly paid in 1892, 1893, 1894 and 1895. Payment of the principal was, however, never asked, or desired, though the last of the notes matured in 1894, for the reason that the holder was satisfied to hold them-as an investment, having bought them originally for that purpose. In March, 1896, as has been stated, the administrator neglected to pay the interest due at that time. Mrs. Blake does not appear to have reminded him of it or to have made any demand, but she put the notes in the hands of Messrs. Beattie & Beattie, her attorneys, who wrote, not to the administrator, but to Dr. Dixie Foster, one of the heirs, as follows: “Thibodeaux, July 22nd, 1896.” “Mr. Dixie Foster : “Dear Sir — There have been placed in our hands for collection three notes, secured by mortgage, and signed by Thomas J. Foster, each of these notes is for $2200. We do not wish to give any trouble about them, and wish to facilitate you as much as we can. We think it best to enter up judgment upon them, but do not, at present, know the exact status of the succession of your father. Will you please let us know what can be done in this matter, and if you be not the proper person to address, let us know to whom we should apply. Tours truly, (Signed) “Beattie & Beattie.” This letter was addressed to Dr. Foster, at Franklin, and was, by him, handed over to the administrator, J. W. Foster, at once, and the latter replied the next day, saying: “Tours of the 22nd inst. addressed to my brother was handed me this morning. I will bo over to see you to-morrow, in regard to the matter. (Signed) “J. W. Foster.” lie accordingly went over to Thibodeaux, not the next day, but on July the 27th; and he testifies as follows, as to what,took place; “I saw Mr. Blake, and asked him wasn’t he satisfied with the interest; he said he was, and to come to Judge Beattie’s office and we *1677 ■would see him. We went to Judge Beattie5 s office, and he asked m« to acknowledge the debt, as administrator, and I did so. I then gave him a check or draft, I don’t remember which, in payment of the interest on these notes, with which he was perfectly satisfied, and told me that when itnvas collected, he would credit it on the notes. I then left Thibodeaux. Nothing was said about the principal whatever.” Concerning the “Hr. Blake” thus spoken of, he says: “Q. You have dealt with Mr. Bannon Blake, as representative of his mother, in making t-hc payment of this interest? “A. lie and Judge Smith, I have dealt with altogether. “Q. And when you dealt directly with the Blakes, you dealt with Bannon Blake, as the representative of his mother? “A. Yes, sir. “Q. And, in dealing with him, he acted as the agent of his mother ? “A. Yes, sir.” On the 22nd or 24th of February, 1897, Messrs. Beattie & Beattie wrote to the administrator: “The interest on notes belonging to Mrs. Blake is due on the 12th of March. If paid, there will be no trouble about a postponement for another year. Please send us the amount, and we will credit it on the notes, as we hold them for her.” The administrator replied on the 25th of February: “Your favor of the 24th at hand, and noted. Enclosed find check for five hundred and twenty-eight dollars, in payment of interest on notes, favor of Mrs. Blake, amounting to $6,600.00. Please credit amount of in terest on notos and oblige.” The interest thus paid was credited by an indorsement on the notes, which reads: “Interest paid to March 12th, 1897, and payment extended one year. Feb. 27, ’97. (Signed) Beattie & Beattie.” The following year, February 3, 1898, the administrator wrote to Messrs. Beattie & Beattie, proposing to take up one of the notes, to pay the interest on all of them to March 12, 1898, and suggesting that the two remaining notes be extended one year. Messrs. Beattie & Beattie replied February 7, 1898, agreeing to all that was proposed, with a condition which they thus state: “But our attorney’s fees will have to be paid, as they have been due for some time. We are disposed to be as lenient as possible, and will not exact any more than the amount due on the note to be cancelled,” etc. *1678 There appears to have been some delay between the writing and the receipt of this letter, for the administrator replied by a telegram, ■dated February 14, 1898: “Can you meet me Tuesday morning at your office? Answer;” and on the following day, February ISth, he Went to Thibodeaux and had an interview with Judge Beattie. As that .gentleman insisted upon the attorney’s fees being páid, the administrator tendered payment of the full amount of the principal and interest of all the notes; that is to say, he made a tender which he intended in that way. This tender was refused on the grounds that it was not made in money; that the amount was insufficient to cover the principal and interest which would be due on March 12th; and that such a tender would, in no case, be accepted unless it included the attorney’s fees claimed. The next day, February 16th, the administrator deposited in bank, in Franklin, and ordered it transferred to the bank at Thibodeaux, $7,100.12, and he telegraphed to Messrs. Beattie & Beattie: “Amount due on notes deposited to credit of Mrs. Blake, or yourself, in St. Mary Bank, will be transferred to the Bank of Thibodeaux this evening.” To which Messrs. Beattie & Beattie. replied, by letter, February 16th, that the administrator could deposit his money where he pleased, etc., etc. — and saying — “when the notes held by us become due, we shall take legal steps to collect the amount due on them.” Thereafter, on February 18th, Messrs. Beattie & Beattie were notified by the Bank of Thibodeaux that it held $7,100.12 subject to their order, or the order of Mrs. Blake, upon the surender of the notes in question; to which they replied, on the same day, denying that any legal tender of payment of the notes had been made; stating that the notes would not fall due until March 12th, and that the amount would be greater than the amount held by the bank, and, saying further: “besides that, the notes bear ten per cent, attorney’s fees clause, and were placed in our hands for collection several years ago, as is well known to Mr. Foster. If he will, or if you will, for him, pay us in full, amount of notes, with interest, to maturity and 10 per cent attorneys’ fees, we will hand you the notes, not otherwise.”. It is admitted that, about this time, a tender, legal in all respects, was made of the full amount of the principal of the notes, with interest to maturity; that is to say, that actual tender was dispensed with, but it was agreed that it should be considered as having been made. Later on, in April, Mrs. Blake, through her same attorneys, *1679 appeared in the District Court, in the succession of Foster, and ruled the administrator to show cause why the property mortgaged should not be sold to satisfy the notes in question with interest, attorneys’ fees, costs, etc. To this rule the administrator answered, in substance, that the notes had been treated as a continuous loan; that the interest had been paid year after year; that no demand for the payment of the principal had been made; that he stood ready to make such payment when called upon; that no legal proceedings for the collection of the .notes was necessary, and, hence, that no attorneys’ fees were due. He also alleged the tender of the payment of the principal and interest, and set up a claim for damages in the way of attorneys’ fees. The trial of this rule resulted in a judgment rejecting the plaintiff’s entire demand, and the plaintiff has appealed. A motion to dismiss the appeal was, subsequently, filed in this court, and passed on in the original opinion. On Motion to Dismiss. From the foregoing statement of the pleading and evidence, it appears that, notwithstanding the admission that the succession owed the principal and interest of the notes sued on, the entire demand of the plaintiff in rule was rejected. This, we have no doubt, was an error into which our brother of the District Court was led by the manner in which the case was presented — probably by statements and admissions of counsel to the effect that the amount of the principal and interest of the notes was at the command of plaintiff in the rule, and that the only point of dispute was as to the attorneys’ fees. As the record is presented to us, however, we have no sufficient evidence that such an amount is at the plaintiff’s command. It is true that it was tendered to the plaintiff at some time prior to the trial, but that tender was not repeated at the trial, and non consiat that the defendant in rule will repeat it if there is a final judgment, on the rule, rejecting plaintiff’s demand for the sale of the property. The consignment, or/deposit in bank, is not even set up, nor is a tender made, in the answer to the rule to sell, and whether the money, deposited in bank to the order of plaintiff, or her attorneys, was allowed to remain there, we have no means of knowing. It is fair to suppose that if the defendant in rule expected to derive any benefit from the fact, and the continuance, of the deposit, it would have been *1680 set up as a defense, and evidence would have been offered to show that the money had really been consigned and was still in bank subject to the order of the holder of the notes. In the absence of such averment and proof, she has been thrown out of court, with nothing that ¿seems to bo at all certain, although her claim is admitted, as to the principal and interest, and entitles her to either payment or judgment. The authorities to which we have been referred, upon the subject of jurisdiction, are inapplicable to such a condition. If, say, $7,000.00, representing the principal and interest of the notes sued on, had been tendered in court, upon the trial of the rule, and had been accepted by the plaintiff, there would have been nothing left in dispute except the attorney’s fees. The authorities sustain that proposition, and some of them go a little farther. But there was no such amount tendered or accepted, and the plaintiff has neither money nor judgment — whereas she is certainly entitled to one or the other. A brief resume of the authorities, to which we have been referred, will show their inappplicability: Zacherie vs. Lyons, Administrator, 22 Ann., 218. Defendant was sued for $1,449.59. He admitted owing, and he deposited in court $1,QJ/.1.00, which the plaintiff withdrew. Held: That the amount in dispute, after such withdrawal, was less than $500.00. Girardey vs. City, 26th Ann., 291. Defendant was sued for $1000.00 and admitted an indebtedness of $725. There was judgment for the whole amount claimed and the defendant appealed. Held that there was only $275 left in dispute. Stubbs vs. McGuire, 33 Ann., 1069. Execution was issued on a judgment for $1,029.84, and certain property was seized. The seizure was enjoined on the ground that the writ should have been credited with $[96.95, which had been paid, and upon other grounds, unnecessary to mention. The payment of the $496.95 was admitted, and it was held that the only amount left in dispute was the difference between the amount with which it was thus admitted that the writ should have been credited, and the amount for which the writ had issued. Even in Denegre vs. Moran, 35th Ann., 346, we infer that the plaintiff had judgment for at least the amount admitted to be due, whilst in Blache vs. Aleix, 15th Ann., 50, an admission, coupled with a deposit in court, which was not withdrawn, and where there was no *1681 partial judgment entered, it was held, did not curtail the claim of its original proportions. “That,” the court said, “was only aecom-plished by the final judgment,” which was the subject of the appeal sought to be dismissed. Our ruling heretofore made, upon the motion to dismiss, will, therefore, remain undisturbed. ■