Opinion
May 20, 1911. Rehearing Denied June 24, 1911.
Appeal from District Court, Deaf Smith County; D. B. Hill, Judge.
Action by Joseph Frazier and another against Ira Webster and others. Judgment for plaintiffs, and defendants appeal. Affirmed.
Carl Gilliland and Knight Slaton, for appellants.
Madden, Trulove Kimbrough, for appellees.
Joseph Frazier and W. G. Ross, plaintiffs, recovered a judgment against Ira Webster, E. F. Connell, and John P. Slaton, defendants, each for the sum of $1,219.75, the amount recovered against each being one-fifth of the amount paid out by the plaintiffs in satisfaction of three promissory notes which the plaintiffs and the defendants, together with one W. E. Robertson, had all signed; and from that judgment defendants have appealed. In their petition plaintiffs alleged that W. E. Robertson was insolvent, and therefore was not made a party defendant.
There is no merit in the defendants' exceptions presenting the question that, as plaintiffs' right of action was not on the notes, but upon defendants' implied contract for contribution, the defendants had the right to be sued separately, and that there was a misjoinder of parties defendant and of causes of action. Jarvis v. Matson, 94 S.W. 1079, and decisions there cited; Wilson v. Lowrie, 40 S.W. 854.
Defendants presented a special exception to that portion of the petition claiming contribution of the defendants for their respective portion of attorney's fees stipulated in one of the notes, and paid by the plaintiffs to the holder thereof, together with the principal and interest due thereon. The ground of this exception was that the petition contained no allegation showing any legal reason or excuse for paying the attorney's fees, so as to create a liability on the part of the defendants for contribution. The contention made in the assignment of error to this ruling of the court is that in order to entitle plaintiffs to recover attorney's fees it was incumbent upon them to allege and prove that the amount paid by them as such fees was reasonable. In the cases of First National Bank of Eagle Lake v. Robinson (Sup.) 135 S.W. 372, and Lanier v. Jones (Sup.) 136 S.W. 255, our Supreme Court held that, in the absence of a plea and of proof that the amount agreed on as attorney's fees in a promissory note is unreasonable and unconscionable, it is proper to render judgment for the amount stated in the note; in other words, that the burden is upon the defendant who signs such a note to plead and prove some reason why the amount stipulated in the note as attorney's fees should not be recovered. In both of those cases, suits were instituted on the notes, and the notes provided for the payment of attorney's fees, if sued upon or placed in the hands of an attorney for collection, and judgments for such attorney's fees without proof of their reasonableness were sustained.
In the present suit plaintiffs alleged that the note upon which attorney's fees were paid by them stipulated that the same should be collected, if the note was collected by law or placed in the hands of an attorney for collection; that when the note was presented for payment by the holder, plaintiffs were willing, ready, and able to pay their pro rata part thereof, but the defendants refused to pay their respective portions, and that by reason of the defendants' failure so to do the note was placed in the hands of an attorney for collection, and suit threatened thereon, and that plaintiffs paid the same in order to avoid additional expense. Appellants neither pleaded nor proved that the amount so paid as attorney's fees was unreasonable, and accordingly the assignment of error now under discussion is overruled.
The further assignment complaining of the admission of testimony to show that plaintiffs had paid the attorney's fees stipulated in the note, over defendants' objection that the petition did not allege that the amount paid was reasonable, is overruled for the same reason given above.
Over defendants' objection, plaintiff Frazier was permitted to testify that R. G. Dun Co. is a commercial collecting agency, and Lon D. Mars an attorney in Amarillo, and the lawyer in whose hands one of the notes was placed for collection, and that the plaintiffs had the indorsements appearing on the note placed theron to protect their interests. The testimony that the note was placed in the hands of the attorney for collection was material, and was properly admitted. If the other testimony of the witness Frazier was improperly admitted, the error was harmless, as in no manner could it have been prejudicial to the appellants.
In order to show that W. E. Robertson, who signed the notes in controversy, was insolvent, plaintiff Frazier testified as follows: "At the time we paid the notes, W. E. Robertson did not have any property that any one seemed to know of. He told me personally, in El Paso, that he could not pay anything at all, and he could not pay his grocery bill and get bread and meat for his family." Defendants objected to that testimony, "because it was something that the witness could not possibly know about." The objection was urged to the testimony quoted as a whole, and was overruled. The ground of objection was clearly not applicable to a portion of the testimony, and, even though it should be held valid as to other portions, the court was not called upon to separate that portion to which the objection was tenable from the rest of the testimony, and therefore, there was no error in overruling the objection. Jamison v. Dooley, 98 Tex. 206, 82 S.W. 780.
Appellants insist that the testimony of the witness Dameron, who had once rented an office to Robertson, reading: "Robertson would pay when we got in after him, but it was a hard matter to get the last rent out of him. It was over four or five months, but it was finally paid" — was some evidence tending to rebut the prima facie showing by plaintiffs that Robertson was insolvent, and that the court erred in giving a peremptory instruction to the jury to return a verdict in favor of the plaintiffs. We think there is no merit in this contention.
Appellants further insist that there was error in adjudging all the costs of suit against the defendants jointly and severally, instead of adjudging an aliquot part against each defendant. This contention is urged in a proposition contained in the brief, but the proposition is not germane to the assignment under which it is submitted, and therefore cannot be considered.
We have found no error in the record, and the judgment is affirmed.