Page:North Dakota Reports (vol. 3).pdf/397

while so possessed thereof, on April 2nd, 1887, the defendant entered upon said premises, and ousted said Schmitz, and that he still unlawfully withheld from the plaintiff possession thereof, * * * and that the value of the use and occupation of said premises since the 2nd day of April, 1887, * * * is $500 a year.” Plaintiffs further claimed in their complaint general damages in the sum of $1,000, but do not set up in their complaint any demand for attorney's fees as a part of plaintiffs’ costs in recovering the possession. The verdict was for the plaintiffs, and embraced the following: ‘For the use and occupation of the land, $3,245; for the cost of recovering the said land, $500,— amounting in all to the sum of $3,745.” Plaintiffs’ counsel was called as witness to show the amount of attorney’s fee which plaintiffs would be obliged to pay out in this action as one part of the cost of recovering possession of the land. The witness testified, in substance, that at the lowest figure the attorney fee would be from $500 to $550. The testimony was objected to upon the ground that it was not the proper measure of damages, was incompetent, irrelevant, and immaterial, and no foundation laid for the proof. These objections were overruled by the court, and defendant excepted. These rulings are assigned as error in this court. We think these exceptions must be sustained. The prevailing general rule is that expenditures for attorneys’ fees made by the successful party cannot be shown at the trial as an element of damages. This is true, especially where the statute, in terms, allows specific sums as taxable costs, and as indemnity to the suitor for his expenses, over and above disbursements. The statute of this state expressly allows such costs, as distinguished from the disbursements made by the prevailing party. Comp. Laws, § 5186. As to the general rule that money paid as attorneys’ fees cannot be shown in evidence as an element of damages, see the following: Day v. Woodworth, 13 How. 372; Fairbanks v. Witter, 18 Wis. 287; Barnard v. Poor, 21 Mass. 278; Seeman v. Feeney, 19 Minn. 79, (Gil. §4;) Jandt v. South, 2 Dak. 46, 47 N. W. Rep. 779; Otoe Co. v. Brown, (Neb.) 20 N. W. Rep. 274.