Opinion
Decided May 11, 1899.
Attorney Fees — Stipulation for Must Be Pleaded.
Where a note provides for attorney fees if it is placed in the hands of an attorney for collection, and the petition in an action thereon fails to allege that the note was so placed for collection, it is error to include the amount of such fees in a judgment taken by default.
ERROR from Brazos. Tried below before Hon. W.G. TALIAFERRO.
Sam R. Henderson, for plaintiff in error.
A.G. Board, as administrator of the estate of J.B. Conway, deceased, brought this suit in the District Court of Brazos County against the plaintiff in error for recovery upon three promissory notes, dated 15th of November, 1893, for $425 each, which provided that if said notes were put in the hands of an attorney for collection the maker should pay 10 per cent of the principal and interest, additional as attorney fees. The notes were not paid, and suit was brought upon them for collection of the amount due thereon and 10 per cent thereof as attorney fees mentioned therein. The petition alleged due execution of the notes, the agreement to pay attorney fees, and averred liability on the part of the maker to pay the amount found to be due thereon, including attorney fees for the collection thereof; but failed to allege that the notes had been placed in the hands of an attorney for collection. When the case was called for trial below the defendant failed to appear and judgment was rendered against him by default for the full amount of the notes, principal and interest, and 10 per cent thereon as attorney fees as provided. The defendant has prosecuted this writ of error, and seeks to reverse the judgment of the court below on the ground that there was no allegation in the petition that the notes had been placed in the hands of an attorney for collection in support of the judgment rendered for attorney fees. Upon the authority of the case of Maddox v. Craig, 80 Tex. 600, this contention must be sustained. The judgment of the court below will be reversed, and judgment will be here rendered in favor of plaintiff in the court below for the amount of the notes, principal and interest only, and the costs of the court below, but the costs of the proceeding in error to this court will be adjudged against him.
Reversed and rendered.