¶1Samuel A. McClung, as the assignee of S. A. McClung & Co., sued Charles P. Tuley, in the court below, upon two promissory notes executed by the said Tuley and another person, under the firm name of C. P. Tuley & Co., and dated October 15th, 1876. Each note contained and concluded with the stipulation, “ agree to pay attorney’s fees for collecting the same.”
¶2The court tried the cause and found that there was due the plaintiff the sum of two hundred and one dollars and fifty cents for principal and interest on the notes, and the further sum of twenty dollars for attorney’s fees.
¶3Over a motion for a new trial, judgment was rendered against Tuley, upon the finding, for the aggregate sujn of two hundred and twenty-one dollars and fifty cents.
¶4Tnley has appealed, and assigned error upon the overruling of his motion for a new trial.
¶5The only question presented upon this appeal is, as to whether the finding of the court, as to the twenty dollars for attorney’s fees, is sustained by the evidence.
¶6It is claimed that the agreements to pay attorney’s fees, contained in the notes as above set out, were really upon the condition of suit being brought upon the notes respectively, and hence illegal and void within the meaning of the act of March 10th, 1875, 1 R. S. 1876, p. 149, and of the case of Churchman v. Martin, 54 Ind. 380.
¶7The act of March 10th, 1875, above referred to, provides “that any and all agreements to pay attorney fees, depending upon any condition therein set forth, and made part of any bill of exchange, acceptance, draft, promissory note, or other written evidence of indebtedness, are hereby *12declared illegal and void,” having reference to such agreements as might thereafter be made.
¶8As is seen, the provisions of this act only embrace such agreements to pay attorney’s, fees as depend upon conditions therein set forth, and not to such as might have some impliedly conditional construction placed upon them.
¶9We think the agreements to pay attorney’s fees, embodied in the notes before us, fall within the latter class of agreements, and are, consequently, not prohibited by the statutory provisions above quoted.
¶10The agreements under consideration appear to us to have been absolute, rather than conditional, agreements, within the meaning of this statutory provision. Churchman v. Martin, supra.
¶11We are, therefore, of the opinion, that the finding of the court below, as to the sum allowed for attorney’s fees, was sustained by the evidence, and that the court did not err in overruling the appellant’s motion for a new trial. Brown v. Barber, 59 Ind. 533; Smock v. Ripley, 62 Ind. 81; Garver v. Pontious, 66 Ind. 191.
¶12The judgment is affirmed, at the costs of the appellant.