
    Vipond, Respondent, vs. Townsend, Appellant.
    
      September 7
    
    
      October 2, 1894.
    
    
      Promissory notes: Stipulated attorney's fees, how recovered.
    
    Where a promissory note stipulates for the payment of attorney’s fees if suit be instituted thereon, such fees may be recovered in the action on the note.
    APPEAL from the Superior Court of Douglas County.
    This suit is brought to recover on a note of which the following is a copy:
    “$10,000.00. Butte City, Montana, Dec. 1st, 1891.
    “ One year after date, without grace, for value received, I promise to pay to the order of William C. Vipond ten thousand dollars, payable at the banking house of W. A. Clark & Brother, Butte City, Montana, with ten per cent, interest per annum from date until paid, both before and after judgment, and ten per cent, attorney's fees if suit be instituted on this note. Value received.
    “ W. W. Townsend.”
    Against the defendant’s objection and exception the court below allowed the plaintiff to introduce evidence of the value of attorney’s fees; and allowed the plaintiff judgment for the amount of the note and interest, and also the sum of attorney's fees, besides the taxable costs and disbursements. The defendant appeals from so much of said judgment as allows the sum of $445 for attorney’s fees. The appellant contends that no part of the attorney’s fees mentioned in the note was due before the commencement of the action.
    The cause was submitted for the appellant on the brief of Knowles, Dickinson, Buchanan, Graham c& Wilson, and for the respondent on that of Thos. W. Shackleford, attorney, and Towne dk Davis, of counsel.
    To the point that plaintiff is limited in his recovery to the debt or damages due at the time of suing the note, counsel for the appellant cited Nickerson v. Babcoclc, 29 Ill. 497; Easter v. Boyd, 79 id. 325.
    To the point that attorney’s fees can be recovered in the action on the note and not in a separate action, counsel for the respondent cited Shugart v. Pattee, 37 Iowa, 422; Smiley v. Meir, 47 Ind. 559; Glenn v. Porter, 72 id. 525.
   Newman, J.

It was not error to include the amount of the stipulated attorney’s fee in the judgment. The stipulation for the fee was a part of the contract on which the action was based. It became due as soon as the action was commenced. It was due at the time of the entry of judgment. Its recovery was incidental to the recovery upon the principal cause of action. This is analogous to the uniform practice, from an earty day, of including stipulated attorney’s fees in foreclosure judgments. It has not been suspected that a separate action could be maintained for the recovery of such fees.

By the Court.— The judgment of the superior court of Douglas county is affirmed.  