The court of civil appeals affirmed the judgment of the trial court. 602 S.W.2d 573. Both parties have filed applications in this court.
Courts of other states which have considered the specific issue raised here have held that statutes providing for attorney's fees to be taxed as costs are to be given retrospective application. Cox v. American Fidelity Assurance Co., 581 P.2d 1325 (Okla.App. 1977); People v. Wagner, 91 Ill. App. 3rd 254, 414 N.E.2d 773 (1980), rev'd on other grounds 89 Ill.2d 308, 433 N.E.2d 267 (1982); Jones v. Kelley, 602 S.W.2d 573 (Tex.Civ.App. 1980), aff`d as modified 614 S.W.2d 95 (Tex. 1981). In Cox the court said:
In order to recover attorney's fees in a suit "founded" on a written contract under this article, a plaintiff must plead and prove that presentment of a contract claim was made to the opposing party and he failed to tender performance. Ellis v. Waldrop, 656 S.W.2d 902, 905 (Tex. 1985); Jones v. Kelley, 602 S.W.2d 573, 577 (Tex.Civ.App. 1980), reformed on other grounds and aff'd, 614 S.W.2d 95 (Tex. 1981). The contract, itself, need not provide for attorney's fees. First City Bank — Farmer's Branch, Texas v. Guex, 677 S.W.2d 25, 30 (Tex. 1984).