Gurney Refrigerator Co. v. McDonald , 15 La. App. 319 ( 1931 )

WESTERFIELD, J.

This is a suit for $160.03 with interest and attorney’s fees, the balance alleged to be due upon a certain promissory note, originally drawn for the sum of $460.03. Defendant avers that the consideration for the note has failed, in that certain refrigerators, for the purchase price of which the note was given, were unfit for the purpose for which they were intended. This defense failed to impress the trial court and a judgment resulted in favor of plaintiff as prayed for. Defendant has appealed.

Without entering upon a detailed discussion of the evidence, we observe that from our consideration of the transcript we are of the opinion that the trial court was correct in its conclusion.

The judgment allowed 10 per cent attorney’s fees upon the sum of $460.03; whereas, it is claimed the attorney’s fees should be allowed only upon the amount sued for, or $160.03. Since it appears from the record that at the time the note was placed in the hands of counsel for collection, no payment had been made, we believe the attorney’s fee should be based upon the original amount.

Our attention is directed to the fact that the note is dated March 5, 1929; whereas, in the judgment appealed from interest was allowed from March 3d. The judgment will therefore be amended to that extent.

For the reasons assigned, the judgment appealed from will be amended so as to allow plaintiff interest only from March 5, 1929, instead of March 3, 1929, and as thus amended, it is affirmed. Costs of both courts to be paid by appellant.

HIGGINS, J., takes no part.