Opinion
No. 3539-A.
June 4, 1934.
A.W. Fox and Henry Roden, both of Hyden, for plaintiff.
H.D. Stabler, of Juneau, for defendant.
On plaintiff's demurrer to defendant's answer, as to defendant's first affirmative defense and counterclaim, plaintiff's demurrer is overruled.
The real question raised is whether or not attorneys' fees can be pleaded as a counterclaim here and be recovered as a counterclaim.
The courts hold that attorneys' fees are recoverable where there is fraud, malice, or bad faith shown.
The general rule is stated in 17 C.J. § 135, p. 809.
The case of Hickman v. Craig, 6 Mo. App. 583, is exactly in point, holding, as it does: "As a part of the damages for a builder's breach of a covenant against mechanics' liens, costs and attorney's fees in defending lien suits may be recovered." Century Digest, Damages, § 152. And this rule is supported by the courts in a large number of our states.
2. Plaintiff's demurrer as to defendant's second affirmative defense and counterclaim was waived by plaintiff at the argument.
3. Plaintiff's demurrer to third affirmative defense and counterclaim confessed by defendant at the argument.
Let an order be entered accordingly.