Wyrsch v. Milke

Key passage — most relied on by later courts

“"On appeal, Adams claimed the right to an attorney fee from M & B for services rendered in this appeal. This claim was not decided in the original opinion. "Paragraph 8 of the Adams-Milke real estate contract reads: "`In the event of a default by any of the parties hereto, all expenses and attorney fees of all other parties incident to such default shall be paid by the defaulting party.' "Of course, this clause is valid, Budagher v. Sunnyland Enterprises, Inc., 90 N.M. 365 , 563 P.2d 1158 (1977), Shortle v. McCloskey, 39 N.M. 273 , 46 P.2d 50 (1935), and a contract which provides for payment of attorney fees by a defaulting party does cover attorney fees on appeal. First National Bank of Santa Fe v. Wood, 86 N.M. 165 , 521 P.2d 127 (1974); Cabot v. First National Bank of Santa Fe, 81 N.M. 795 , 474 P.2d 478 (1970). The Court's decision in Cabot is the majority approach to this issue."”

quoted by 1 later decision, including DeWitt v. Balben

“Contractual provision for attorneys' fees as including allowance for services rendered upon appellate review,”

quoted by 1 later decision, including DeWitt v. Balben