Opinion
Department 1. Appeal from superior court, San Diego county; W. L. Pierce, Judge.
Action by Lee against McCarthy and another to foreclose a mortgage. From a judgment for plaintiff, defendants appeal. Modified.
COUNSEL
[4 Cal.Unrep. 499] Luce & McDonald, for appellants.
A. E. Nutt, for respondent.
OPINION
PER CURIAM.
This case is not distinguishable in principle from Clemens v. Luce, (No. 19,234; this day decided,) 35 P. 1032. The agreement providing for attorney’s fees in case of suit is contained in the mortgage instead of the bond, and is as follows: ‘Should suit be commenced, or an attorney employed, to collect the said promissory bond, or any of said interest coupons, the mortgagors agree to pay an additional sum of ten per cent. on principal and accrued interest as attorney’s fees.’ The mortgage does not purport to be given to secure these attorney’s fees, and the agreement can have no greater force than if it were contained in the bond, or in a separate instrument. It may be added that this agreement to pay attorney’s fees is not directly averred in the complaint, but is merely inferred from being contained in an exhibit annexed thereto; and it is a well-established rule in pleading that ‘whatever is an essential element to a cause of action must be presented by a distinct averment, and cannot be left to an inference to be drawn from the construction of a document attached to the complaint.’ Burkett v. Griffith, 90 Cal. 542, 27 P. 527.
The cause is remanded, with directions to the court below to modify the judgment by striking therefrom the amount of the attorney’s fees allowed; in all other respects the judgment and order appealed from to be affirmed.