Page:Federal Reporter, 1st Series, Volume 5.djvu/871

PACIFIC EOLLISG MILL Z?.- D., S. & G. B. RY. CO. .859 �directors, or to the corporation, even constructive notice o.f their contents. �The reasonable conclusion to be drawn from the evidence is that the directors, referring to and approving of the mort- gages on January-8 and April 28, 1880, theretofore given tp the plaintiff, had reference to and approved of only such acts as it appeared from their records that a majority of their body had assumed the right to direct their president and seeretary to do and perfonn. �It foUows that the ratification of these mortgages did not include the special provision for an attorney fee. The fact of its existence does not appear to have been known to the directors at the time of the ratification, and therefore it was not within their contemplation. �The contracts inserted in the mortgages of the corporation by the president and seorctary, being unauthorized and un- ratified, eannot be enforced against it. �Objection ia also made to the enforcement of the contract for an attorney fee in the mortgages made by Gaston, but upon what ground does not appear. The matter needs only to be stated to show the futility of the objection. Gaston made two mortgages to secure the payment of his promissory notes to the plaintiff, for the sums of $62,724.56 and |27,13e respectively, and expressly agreed therein that if legal pro- ceedings were taken to enforce the same, that by way of indemnifying the plaintiff against the costs and expensea thereof, it should be entitled to recover against him, in addi- tion to the debt, an attorney fee of $1,000 in each case. This was a lawful contract, lawfuUy made. Wilson Sewing Machine Co. v. Moreno, U. S. G. C. Dist. Or., Aug. 18, 1879 ; Bank of Brit. N. A. v. Ellis, 2 Ped. Rep. 44. The contin- gency has arisen. The mortgagor failed to pay his debt and the mortgagee has been put to the expense of enforcing his claim by litigation, and is entitled to recover, as against Gaston, and enforce his mortgages, for the sum of $2,000. �There must be a decree reciting the fact of the payment of the principal and interest due the plaintiff, as above stated, and the payment of costs up to that time, and dis- ����