Opinion
Rehearing Denied Oct. 6, 1970.
Page 279
Robert Leland Johnson, Denver, for plaintiffs in error.
Bernard Sobol, Denver, for defendant in error.
COYTE, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
The parties shall be referred to in the same manner as they appeared at trial, wherein plaintiffs in error were defendants.
Defendants executed a payable on demand collateral note in the amount of $130,000 in favor of plaintiff and pledged as security for said note a stock certificate representing one hundred shares of the capital stock of Capitol Packing Company.
On December 2, 1968, plaintiff demanded payment of the balance due on the note, plus accrued interest. Defendant requested an extension of time for payment, which was refused. This suit was then filed.
In her complaint, plaintiff in her first cause of action sought the amount of the unpaid balance, plus interest and attorney's fees. In her second cause of action, she sought foreclosure of the collaterla security. Defendants answered by generally denying the amount due. However, prior to trial defendants deposited with the court the sum of $66,687.90, that being the principal amount due plus interest to date of trial.
Trial was to the court on the issue of whether or not defendants were liable for plaintiff's attorney's fees. The trial court found that defendants were liable for reasonable attorney's fees.
The principal and interest due plaintiff were paid to her at the conclusion of the trial and the judgment was satisfied to that extent. The only issue then facing this court deals with the propriety of awarding attorney's fees for plaintiff. Although plaintiff has filed a cross-appeal for an increase in the amount of attorney's fees awarded, from $3,250 to $6,550, this cross-appeal must fail in view of our holding that defendants are not liable for any of plaintiff's attorney's fees.
The issue of attorney's fees is generally one to be decided upon between an attorney and his immediate client. Unless authorized by statute or contract, the trial court has no authority to award attorney's fees to the successful party at trial. Denver Building and Construction Trades Council v. Shore, 132 Colo. 187, 287 P.2d 267; Joslin v. Teats, 5 Colo.App. 531, 39 P. 349. Plaintiff seeks to recover under the provisions of the note executed by defendants, wherein it provides that defendants shall furnish security for the note and that upon demand and failure to pay by defendants, the collateral may be sold and the net proceeds shall be applied to the reduction of the debt '* * * after deducting the expenses of any such sale, including reasonable attorney's fees * * *.'
It is a well-recognized rule in this state that where the resolution of an issue is dependent upon an interpretation of a written instrument, the interpretation made by the trail court is not binding upon the reviewing court. Rio Grande Fuel Co. v. Colorado Central Power Co., 99 Colo. 395, 63 P.2d 470. In this case we hold that the trial court erred in awarding any attorney's fees to plaintiff.
Written instruments are to be interpreted in the plain meaning of the words involved. United States Fidelity & Guaranty Co. v. First National Bank, 147 Colo. 446, 364 P.2d 202; Hammond v. Caton, 121 Colo. 7, 212 P.2d 845. There is no provision in the collateral note for the payment of attorney's fees in case of litigation, only in case of sale of the collateral. There is nothing in this instrument to indicate or imply that attorney's fees are assessable against the defendants except when the collateral is sold. Since there was no sale of the collateral, there is no basis for the court to award attorney's fees.
Judgment reversed with directions that the amount of the judgment be reduced by $3,250.
SILVERSTEIN, C.J., and DUFFORD, J., concur.