Carr v. King

2 Wilson 494

• Court: Court of Appeals of Texas
• Decided: February 21, 1885
• Docket: No. 1700
• Status: Published

Opinion

Opinion by

Will-son, J.

§ 557. Petition, which warranted judgment for debt and stipulated attorney’s fee. Appellees sued appellant upon a promissory note, alleging as follows: “That he render unto them the sum of $505.25 which to them he owes, and unjustly detains, for this, to wit, that heretofore, to wit, on the 20th day of June, 1884, the said defendant made and signed, and then delivered to the said plaintiffs, his certain note in writing, commonly called a promissory note, the date whereof is the day and year last aforesaid, and thereby promised and agreed to pay to the said plaintiffs, thirty days after the said date thereof, in the city and county of Galveston, the sum of $505.25 with interest thereon at the rate of ten per centum per annum until paid, and an attorney’s fee of ten per centum if legal proceedings were necessary to collect said note. Yet the said defendant, although often requested, hath not as yet paid to the said plaintiffs the said sum of money above demanded, or any part thereof, but to pay the same hath hitherto wholly failed and refused, and still doth fail and refuse, to the damage of the said plaintiffs of $1,000.” The prayer of the petition is, that “ plaintiffs have judgment for their debt, interest and costs.” They recovered judgment for their debt and interest, and for ten per cent, attorney’s fee, and for costs. Held: 1. In the absence of special exceptions the petition is sufficient to warrant the judgment rendered upon it. 2. It is sufficiently apparent, considering the petition as a whole, that the suit is to-recover the ten per cent, attorney’s fee stipulated for in the note, as well as to recover the principal debt and interest. 3. The ten per cent, attorney’s fee became a part of the principal indebtedness whenever it became necessary to resort to legal proceedings to collect the note. 4. The happening of this contingency was shown by the allegation that, before the institution of the suit, defendant had been often requested to pay the note, but had failed and refused to do so.- 5. In claiming and praying for the recovery of the debt due them, plaintiffs claimed and prayed for the stipulated attorney’s fee, said fee having become a part of said indebtedness, by reason of the happening of said contingency. 6. The allegations and prayer of the petition are not as direct and specific in relation to the attorney’s fee as they should have been, but not having been specially excepted to, are deemed sufficient to uphold the judgment for that part of the indebtedness.

February 21, 1885.

Affirmed.