POTTER, JUSTICE. This case involves the same questions and upon the same facts that are considered in Miller, as Receiver, v. Amoretti, this day decided. The two cases were submitted together. It is alleged that Mrs. Palmer, the defendant, is the owner of twelve and one-half shares of the stock of the Farmers' State Bank of Bridger, Montana, and it is sought to recover, in this suit by the receiver of said bank, her super-added liability, under the Montana statute. A demurrer to the petition, as amended, was sustained, and upon the plaintiff refusing to further plead, judgment was rendered for the defendant. The case being here on error, the judgment is affirmed on the grounds and for the reasons stated in the opinion in the case aforesaid of Miller v. Amoretti. BEARD, C. J., concurs. Affirmed. BIYDENBURGH, J., being ill, did not participate in the de cision. GRAVES v. BURCH. (No. 916; Decided June 3rd, 1919; 181 Pac. 354.) BILLS AND NOTES-EXTENSION-CONSIDERATION-Mortgages-Fore- 1. Where the maker of a note and mortgage past due informed 3. A previous demand for payment of a past due debt is not 4. A provision for attorney's fees in a note or mortgage is a contract of indemnity in the nature of a penalty, as distinguished from liquidated damages, to compensate payee for expense incurred or liability for expense created through the fault of the maker or mortgagor. Such fees even where fixed by stipulation for a stated amount are within the equitable control of the court to allow only such sums as may be reasonable and may be disallowed altogether under circumstances rendering a recovery inequitable or unconscionable. 5. Where the payee in a note secured by mortgage past due lulled the maker into a sense of security by stating that he was not needing the money and that she need not worry about the payment, it would be inequitable to allow the recovery of attorney's fees provided for in the note, where foreclosure proceedings were brought without further notice, giving the debtor an opportunity for payment; mortgagee upon suit being brought tendering the amount due. 6. Where a payee in a note secured by a mortgage was not equitably entitled to attorney's fees, having lulled the maker into a sense of security by informing her that there would be no immediate foreclosure, an assignee of the mortgage and note after the note was overdue, took them subject to the equities existing at the time of the assignment and was not entitled to attorney's fees where he immediately brought suit to foreclose without notice. 7. In an action to foreclose a mortgage, the principal of which was payable in monthly installments, some of which were not made promptly, which rendered computation of interest difficult, a tender of the amount demanded, in a petition for forclosure, with interest to date and court costs, will not be held ineffective, although more money was actually due, the difference being deposited in court upon amendment of the petition by plaintiff; and a tender and deposit in court will not be held insufficient, although lacking a few cents to cover the exact amount, where the only controversy in the case was as to whether plaintiff was entitled to attorney's fees. 8. In a mortgage foreclosure, where mortgagor made a tender and deposit in court of the amount demanded in the petition, together with interests and costs to date of deposit, but it was found that plaintiff had erred in computing the interest, leaving a difference, which the defendant at once deposited, the defendant should not be required to pay interest upon the amount originally tendered and deposited. ERROR to District Court, Fremont County, HON. CHARLES E. WINTER, Judge. Action for the foreclosure of a mortgage by I. L. Burch against Cora E. Graves and another. From a judgment for plaintiff which included an allowance of interest and attorney's fees after tender, defendants bring error. E. II. Fourt, for plaintiffs in error. Plaintiffs in error offered to make payment before suit and were informed that they need not worry about payment, as mortgagee did not need the money. Mortgagor thereafter assigned the note and mortgage to defendant in error, who commenced foreclosure proceedings; a tender of the amount due less attorney's fees was made at the time of answer; the note was past due on the date of assignment; defendant in error is not a holder in due course. (Comp. Stats., sec. 3216.) A court of equity will relieve against a forfeiture or penalty in a contract and decree specific performance, if possible, between the parties. (Willard's Equity 56.) Defendant in error having accepted the note after it was due gave it the status of a demand note. (Comp. Stats., sec. 3165.) A demand was necessary in order to recover attorney's fees provided for. Attorney's fees are a penalty. (Witherspoon v. Mussleman, 14 Bush. 214: Prescott v. Grady, 27 Pac. 35 (Calif.).) An attorney fee cannot be included until a demand has been made. (Clemens v. Loose, 35 Pac. 1032.) There was an extension at the time. (Drake v. Bank, 96 Pac. 999.) There was no waiver of the terms and conditions of the note. John J. Spriggs, for defendant in error. The tender was insufficient and properly refused. The services of an attorney was necessary to enforce payment, there being a default. A tender which does not include attorney's fees is insufficient. (Bank v. Howard, 158 Pac. 927.) Attorney's fees are not held to be uncollectable. (Bovee v. Holland, 156 Pac. 417; Const. Co. v. Sutherland, 150 Pac. 209; Comp. Stats., sec. 3160; Baker Co. v. Sherman, 122 Pac. 235.) Presentment and demand were waived in the note. (Section 3240, Comp. Stats. 1910.) Section 3165, Comp. Stats., refers to persons secondarily liable and are not in point. The instrument was not one including a drawer or acceptor and was not drawn, issued or accepted after due. It was endorsed after due and as to the endorser was payable on demand. The judgment should be affirmed. POTTER, JUSTICE. This is an action upon a promissory note and real estate mortgage securing the same, executed by the plaintiffs in error, Cora V. Graves and Karl DeF. Graves to one John Findlay and assigned to the defendant in error, I. L. Burch, to recover judgment upon the note for an unpaid balance due thereton and for the foreclosure of the mortgage. The note and mortgage were assigned to Burch on March 10, 1916, and the action was commenced on the following day, March 11, 1916, and there was endorsed on the summons, as demanded by the precipe, the following: "Civil action for the recovery of money only. Amount claimed, $314.46, and mortgage foreclosure, for which plaintiff will take judgment if defendant fails to answer." As set out in the petition and shown by the evidence, the note was dated October 4, 1910, and was given for the sum of $800.00, with interest at the rate of ten per cent per annum from date until paid, payable by monthly installments of twenty dollars each until the principal sum and interest shall be fully paid. It expressly provides that the monthly payments shall be applied, first to payment of accrued interest, and the balance upon the principal. It contains also the following provisions: "In case payment shall not be made at the times and as herein provided, we further promise and agree to pay costs of collection, including the further and additional amount of one hundred dollars on said principal sum of this note for attorney's fee, and if any suit or foreclosure proceedings be commenced for the collection of any amount unpaid on this note, said fees shall be added to and included in any judgment hereon. And the makers of this note hereby waive presentation for payment, notice of non-payment, and jointly and severally consent that time of payment may be extended without notice thereof." The mortgage also contains a provision for one hundred dollars attorney, solicitor and counsel fees to be retained out of money arising from the sale of the property authorized thereby upon default in payment of principal or interest or any part thereof, and that in any proceeding in equity to foreclose the mortgage said solicitor fees shall be taxed as costs in said action. The petition alleges a large number of payments endorsed on the note, and the dates thereof respectively commencing with Oct. 31, 1910, as the date of the first payment of $20, and ending with the payment of a like sum on Oct. 12, 1915; said last payment being endorsed as the payment due for February, 1914. Judgment was prayed for $174.21, the balance due upon the principal of the note, $37.00 interest due at the date of commencing the action, $3.25 for insurance premium paid, and the further sum of $100.00 for attorney fees; and for the sale of the mortgaged premises to satisfy the same. It will be noticed that the total of the sums stated is $314.46, the amount endorsed upon the summons, and that, omitting the attorney fee and insurance premium, the amount claimed would be $211.21. The answer, filed April 7, 1916, admits the execution of the note and mortgage, and alleges that after the note became due and before it was assigned to plaintiff, the defendants obtained an extension of time for the payment of the balance due, that the payee, Findlay, told them that no advantage would be taken of them or expense incurred and that they might have additional time to pay the balance, and that relying on that promise, and in consideration thereof, the defendants "made additional payments as they could". That defendants were not notified of the assignment and no demand for payment was made upon either of them prior to commencing the action. That the plaintiff knew the note was past due when assigned to him. That the assignment |