{
  "id": 8552580,
  "name": "BINNING'S, INC. v. ROBERTS CONSTRUCTION COMPANY, INC., BOBBY R. ROBERTS and RUBY M. ROBERTS",
  "name_abbreviation": "Binning's, Inc. v. Roberts Construction Co.",
  "decision_date": "1970-10-21",
  "docket_number": "No. 7022SC536",
  "first_page": "569",
  "last_page": "572",
  "citations": [
    {
      "type": "official",
      "cite": "9 N.C. App. 569"
    }
  ],
  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
  "analysis": {
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  "last_updated": "2023-07-14T14:50:15.842675+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Chief Judge Mallard and Judge Parker concur."
    ],
    "parties": [
      "BINNING\u2019S, INC. v. ROBERTS CONSTRUCTION COMPANY, INC., BOBBY R. ROBERTS and RUBY M. ROBERTS"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nThe exceptions in the record present the question of whether the facts admitted in the record support the conclusions of law made by the court, and whether the court committed error in entering judgment that the plaintiff recover as reasonable attorneys\u2019 fees 15 % of the balance due on the note.\nG.S. 6-21.2, in part, provides:\n\u201cObligations to pay attorneys\u2019 fees upon any note, conditional sale contract or other evidence of indebtedness, in addition to the legal rate of interest or finance charges specified therein, shall be valid and enforceable, and collectible as part of such debt, if such note, contract or other evidence of indebtedness be collected by or through an attorney at law after maturity, . . . . \u201d\nG.S. 6-21.2(5), in pertinent part, provides:\n\u201cThe holder of an unsecured note . . . shall, after maturity of the obligation by default or otherwise, notify the maker . . . that the provisions relative to payment of attorneys\u2019 fees in addition to the \u2018outstanding balance\u2019 shall be enforced and that such maker . . . has five days from the mailing of such notice to pay the \u2018outstanding balance\u2019 without the attorneys\u2019 fees. If such party shall pay the \u2018outstanding balance\u2019 in full before the expiration of such time, then the obligation to pay the attorneys\u2019 fees shall be void . ... \u201d\nThe defendants contend that before the plaintiff would be entitled to collect reasonable attorneys\u2019 fees in this action the notice as provided in G.S. 6-21.2 (5) must have been given by the plaintiff to the defendants prior to the institution of the action. We do not agree.\nThe only requirement in the statute as to when notice is to be given is that it be given \u201c . . . after maturity of the obligation by default or otherwise . . . .\u201d We do not construe this to mean that the notice must be given prior to the institution of the action.\nThe letter mailed by the plaintiff\u2019s attorneys to the defendants on 2 April 1970 was sufficient compliance with G.S. 6-21.2(5) and gave the defendants an opportunity to pay the balance of the note without incurring the additional expenses of paying reasonable attorneys\u2019 fees.\nG.S. 6-21.2 (2) provides:\n\u201cIf such note, conditional sale contract or other evidence of indebtedness provides for the payment of reasonable attorneys\u2019 fees by the debtor, without specifying any specific percentage, such provision shall be construed to mean fifteen percent (15%) of the \u2018outstanding balance\u2019 owing on said note, contract or other evidence of indebtedness.\u201d G.S. 6-21.2 (3) provides:\n\u201cAs to notes and other writing (s) evidencing an indebtedness arising out of a loan of money to the debtor, the \u2018outstanding balance\u2019 shall mean the principal and interest owing at the time suit is instituted to enforce any security agreement securing payment of the debt and/or to collect said debt.\u201d\nHaving concluded as a matter of law that the plaintiff had complied with the provisions of G.S. 6-21.2 (5) with respect to notice, and since the note in the instant case provided for the \u2022payment of reasonable attorneys\u2019 fees by the debtor, without specifying any specific percentage, the court properly allowed the plaintiff to recover as reasonable attorneys\u2019 fees 15% of the balance due on the note together with 15% of the interest due on the note at the time suit was instituted.\nThe judgment appealed from is affirmed.\nAffirmed.\nChief Judge Mallard and Judge Parker concur.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "C. Horton Poe, Jr., for the defendant appellants.",
      "Walser, Brinkley, Walser & McGirt, by Walter F. Brinkley, for the plaintiff appellee."
    ],
    "corrections": "",
    "head_matter": "BINNING\u2019S, INC. v. ROBERTS CONSTRUCTION COMPANY, INC., BOBBY R. ROBERTS and RUBY M. ROBERTS\nNo. 7022SC536\n(Filed 21 October 1970)\n1. Attorney and Client \u00a7 7\u2014 action on note \u2014 enforcement of attorneys\u2019 fees provision \u2014 sufficiency of notice to makers\nIn plaintiff\u2019s action to recover on a promissory note which provided for the payment of reasonable attorneys\u2019 fees upon default by the makers, a letter mailed by plaintiff\u2019s attorneys to the makers of the note, stating that the plaintiff would enforce the attorneys\u2019 fees provision of the note, sufficiently complied with the notice requirements of G.S. 6-21.2 (5) so as to give the makers an opportunity to pay the balance of the note without incurring the expense of attorneys\u2019 fees.\n2. Attorney and Client \u00a7 7\u2014 action on note \u2014 award of reasonable attorneys\u2019 fees\nWhere an unsecured promissory note provided for the payment of reasonable attorneys\u2019 fees upon default by the debtor, without specifying any specific percentage, the trial court properly allowed the plaintiff to recover as reasonable attorneys\u2019 fees 15% of the balance due on the note, as provided by statute. G.S. 6-21.2 (2), G.S. 6-21.2 (3).\nAppeal by defendants Bobby R. Roberts and Roberts Construction Company, Inc., from Seay, /., June 1970 Session of Davidson Superior Court.\nThis was a civil action commenced on 4 March 1970 based upon an unsecured promissory note executed by the defendants. The terms of the note provided that, in the event of default, all costs and expenses of collection, including reasonable attorneys\u2019 fees, were to be paid by the makers of the note. In the complaint dated 4 March 1970, the plaintiff alleged default on the note and claimed the entire principal together with interest and reasonable attorneys\u2019 fees. On 2 April 1970 the defendants answered alleging, among other things, that the plaintiff had not given notice to the defendants as provided in G.S. 6-21.2 (5) that he intended to enforce the provision in the note relative to the payment of the costs of collection including reasonable attorneys\u2019 fees.\nOn 26 June 1970, the parties waived trial by jury and stipulated that the court could make its conclusions of law and enter judgment based on an agreed statement of facts.\nThe pertinent facts as stipulated by the parties are summarized as follows:\nThe defendants on 20 January 1970 executed and delivered to the plaintiff a promissory note in the principal sum of $25,021.87 to be due and payable on 80 January 1970, said note containing the following provision: \u201cIt is further agreed that in the event of default, all costs and expenses of collection, including reasonable attorneys\u2019 fees, shall be collectible herewith and shall be paid by the makers of this note.\u201d When the note became due, there was a default in the payment of the note and the defendants Bobby R. Roberts and Roberts Construction Company, Inc., admitted that the plaintiff was entitled to recover from the defendants the entire principal sum of $25,021.87 together with interest at the rate of 9% per annum from 30 January, 1970. No payment of any part of the principal or interest on the note had been paid. No notice as provided by G.S. 6-21.2 (5) with respect to the recovery of attorneys\u2019 fees in addition to the outstanding balance of the note was given by the plaintiff to any of the defendants prior to 2 April 1970. On 2 April 1970, a letter was mailed by Walser, Brinkley, Walser & McGirt, attorneys for the plaintiff, to the defendants, Bobby R. Roberts and Roberts Construction Company, Inc., giving the notice provided in G.S. 6-21.2 (5) that the plaintiff intended to enforce the provision in the note relative to the payment of reasonable attorneys\u2019 fees as a part of the costs of the collection of the note.\nThe defendant Ruby M. Roberts died while this action was pending and her executor had not been made a party to the proceedings. It was stipulated that any judgment entered in the cause would not be binding on either the plaintiff or her estate. The parties stipulated that the sole undisputed issue for determination by the court was whether the defendants Bobby R. Roberts and Roberts Construction Company, Inc., were obligated to pay the costs and expenses of collection with respect to the note including reasonable attorneys\u2019 fees in addition to the principal sum and interest due thereon.\nBased on the agreed statement of facts, Judge Seay concluded as a matter of law that \u201c . . . the notice given by the plaintiff to the said defendants was sufficient to comply with the requirements of G.S. 6-21.2 (5),\u201d and entered judgment that the plaintiff have and recover of the defendants Bobby R. Roberts and Roberts Construction Company, Inc., $25,021.87 representing the principal sum due on the promissory note, and the sum of $907.14 representing interest due thereon, and the further sum of $3,785.19 representing reasonable attorneys\u2019 fees.\nThe defendants Bobby R. Roberts and Roberts Construction Company, Inc., excepted to the court\u2019s conclusion of law and to the entry of the judgment and appealed to the North Carolina Court of Appeals.\nC. Horton Poe, Jr., for the defendant appellants.\nWalser, Brinkley, Walser & McGirt, by Walter F. Brinkley, for the plaintiff appellee."
  },
  "file_name": "0569-01",
  "first_page_order": 593,
  "last_page_order": 596
}