YOUNG, Justice.
It becomes necessary to dispose of appellant’s motion for rehearing in writing; with especial reference to a proper construction of Art. 2226, Vernon’s Ann.Civ. St., authorizing attorney’s fees in certain cases.
His suit in trial court was for a balance due of $550 for services rendered and material furnished in an interior decorating job on defendants’ home; suing 'also for $250 as attorney’s fees. Defendants answered by general denials and cross action, alleging that the work as performed was incomplete and unsatisfactory. The jury in verdict foxtnd that plaintiff was due $550 as .prayed; fixed $250 as a reasonable attorney’s fee, and that $200 was reasonable compensation to defendants because of Gateley’s failure to properly complete the work contracted for. It is not disputed that plaintiff made demand on Humphrey for the above mentioned balance and four days thereafter filed this suit; the trial court finding that plaintiff was not entitled to statutory attorney’s fees because of noncompliance with the provisions of Art. 2226, requiring a thirty-day interval between presentation of claim and institution of suit. In this connection the net recovery of plaintiff was $350 (the amount remaining after credit of $200 due defendants on their cross action).
Appellant complains of above judgment recitals eliminating his claim for attorney’s fees, and presented by point 1, reading: “The provisions of Article 2226, Revised Texas Civil Statutes, which provides ‘ * * * and if, at the expiration of thirty (30) days thereafter, the claim has not been paid or satisfied, and he should finally obtain judgment * * *,’ means thirty days from date of demand to date of judgment, and the trial court erred in holding that suc'h provision means thirty days from date of demand to date of filing of the suit and in disregarding the jury’s findings in awarding appellant $250 as attorney’s fees.” [920] The counterpoint of appellees thereto reads: “The court did not err in not allowing attorney’s fees as sought under the provisions of Article 2226, Revised Civil Statutes of the State of Texas, because the undisputed evidence is that suit was filed on the claim four (4) days after demand was made upon appellees.”
Art.. 2226, originating as Ch. 47, p. 93, General Laws of 1909, under heading of “Claims — Regulating Presentation and Collection of1 — was first numbered Art. 2178 in the 1911 revision. It then provided: “Section 1. That hereafter any person in this State, having a valid, bona fide claim against any person or corporation doing business in this State, for personal services rendered or for labor done, or for material furnished, or for overcharges on freight or express, or for any claim for lost or damaged freight, or for stock killed or injured by such person or corporation, its agents or employees, may present the same to such person or corporation or to any duly authorized agent, thereof, in any county where' suit may be instituted for the same; and if, at the expiration of thirty days after the presentation of such claim, the same 1ms not been paid or satisfied, he may immediately institute suit thereon in the proper court, and if he shall finally establish his claim, and obtain judgment for the full amount thereof, as presented for payment to such person or corporation in such court he shall be entitled to recover the amount of such claim 'and all costs "of suit, and in addition thereto a reasonable amount as attorney’s fees, provided, he has an attorney employed in the case, not to exceed twenty ($20.00) dollars, to be determined by the court or" jury trying the case; provided, however, that nothing in this Act shall be construed to repeal or in any manner affect any provision of the law now in force giving a remedy to persons having claims of the character mentioned in this Act, but the same shall be considered as cumulative of 'all other remedies given to such a person or persons. Sec. 2. The fact that there is no law now in force in this State providing an effectual remedy for persons having such claims as are mentioned in this Act, creates an emergency * * 'pjjg Act has been held constitutional, Missouri, K. & T. Ry. Co. v. Mahaffey, 105 Tex. 394, 150 S.W. 881, and inclusive of claims not exceeding $200 in amount; that limitation being recited in its caption. This law was amended in 1923 by merely adding the words “or express” in connection with any claim for lost or damaged freight. It was again amended in 1949, Acts Slst Legislature, ¡p. 915, now reading: “Any person'having a valid claim against a • person or corporation for personal services rendered, labor done, material furnished, overcharges on freight or express, lost or damaged freight or express, or stock killed or injured, may present the same to such person or corporation or to any duly authorized agent thereof ; and if, at the expiration of thirty (30) days thereafter, the claim has not been paid or satisfied, and he should finally obtain judgment for any amount thereof as presented for payment to such .person or corporation, he may also recover, in addition to his claim and costs, a reasonable-amount as 'attorney’s fees, if represented by an attorney.” The emergency clause of the Act recited, as reason for the amendment, “The fact that it is practically impossible to obtain legal services for the purpose of collecting the claims described in this Act under the present law creates an emergency * *
The U. S. Supreme Court in Missouri, K. & T. Ry. Co. v. Cade, 233 U.S. 642, 34 S.Ct. 678, 680, 58 L.Ed. 1135, discussing the constitutionality of the 1909 law (now Art. 2226), went on to say: “It is a police regulation designed to promote the prompt payment of small claims and to discourage unnecessary litigation in respect to them. The claims included -appear to be such as. are susceptible of being readily adjusted by the party responsible, within the thirty days that must intervene between the presentation of the claim and the institution of suit. * * * such penalty is obviously imposed as an incentive to .prompt settlement of small but well-founded claims, and as a deterrent of groundless defenses. * * * »
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YOUNG, Justice.
It becomes necessary to dispose of appellant’s motion for rehearing in writing; with especial reference to a proper construction of Art. 2226, Vernon’s Ann.Civ. St., authorizing attorney’s fees in certain cases.
His suit in trial court was for a balance due of $550 for services rendered and material furnished in an interior decorating job on defendants’ home; suing 'also for $250 as attorney’s fees. Defendants answered by general denials and cross action, alleging that the work as performed was incomplete and unsatisfactory. The jury in verdict foxtnd that plaintiff was due $550 as .prayed; fixed $250 as a reasonable attorney’s fee, and that $200 was reasonable compensation to defendants because of Gateley’s failure to properly complete the work contracted for. It is not disputed that plaintiff made demand on Humphrey for the above mentioned balance and four days thereafter filed this suit; the trial court finding that plaintiff was not entitled to statutory attorney’s fees because of noncompliance with the provisions of Art. 2226, requiring a thirty-day interval between presentation of claim and institution of suit. In this connection the net recovery of plaintiff was $350 (the amount remaining after credit of $200 due defendants on their cross action).
Appellant complains of above judgment recitals eliminating his claim for attorney’s fees, and presented by point 1, reading: “The provisions of Article 2226, Revised Texas Civil Statutes, which provides ‘ * * * and if, at the expiration of thirty (30) days thereafter, the claim has not been paid or satisfied, and he should finally obtain judgment * * *,’ means thirty days from date of demand to date of judgment, and the trial court erred in holding that suc'h provision means thirty days from date of demand to date of filing of the suit and in disregarding the jury’s findings in awarding appellant $250 as attorney’s fees.” [920] The counterpoint of appellees thereto reads: “The court did not err in not allowing attorney’s fees as sought under the provisions of Article 2226, Revised Civil Statutes of the State of Texas, because the undisputed evidence is that suit was filed on the claim four (4) days after demand was made upon appellees.”
Art.. 2226, originating as Ch. 47, p. 93, General Laws of 1909, under heading of “Claims — Regulating Presentation and Collection of1 — was first numbered Art. 2178 in the 1911 revision. It then provided: “Section 1. That hereafter any person in this State, having a valid, bona fide claim against any person or corporation doing business in this State, for personal services rendered or for labor done, or for material furnished, or for overcharges on freight or express, or for any claim for lost or damaged freight, or for stock killed or injured by such person or corporation, its agents or employees, may present the same to such person or corporation or to any duly authorized agent, thereof, in any county where' suit may be instituted for the same; and if, at the expiration of thirty days after the presentation of such claim, the same 1ms not been paid or satisfied, he may immediately institute suit thereon in the proper court, and if he shall finally establish his claim, and obtain judgment for the full amount thereof, as presented for payment to such person or corporation in such court he shall be entitled to recover the amount of such claim 'and all costs "of suit, and in addition thereto a reasonable amount as attorney’s fees, provided, he has an attorney employed in the case, not to exceed twenty ($20.00) dollars, to be determined by the court or" jury trying the case; provided, however, that nothing in this Act shall be construed to repeal or in any manner affect any provision of the law now in force giving a remedy to persons having claims of the character mentioned in this Act, but the same shall be considered as cumulative of 'all other remedies given to such a person or persons. Sec. 2. The fact that there is no law now in force in this State providing an effectual remedy for persons having such claims as are mentioned in this Act, creates an emergency * * 'pjjg Act has been held constitutional, Missouri, K. & T. Ry. Co. v. Mahaffey, 105 Tex. 394, 150 S.W. 881, and inclusive of claims not exceeding $200 in amount; that limitation being recited in its caption. This law was amended in 1923 by merely adding the words “or express” in connection with any claim for lost or damaged freight. It was again amended in 1949, Acts Slst Legislature, ¡p. 915, now reading: “Any person'having a valid claim against a • person or corporation for personal services rendered, labor done, material furnished, overcharges on freight or express, lost or damaged freight or express, or stock killed or injured, may present the same to such person or corporation or to any duly authorized agent thereof ; and if, at the expiration of thirty (30) days thereafter, the claim has not been paid or satisfied, and he should finally obtain judgment for any amount thereof as presented for payment to such .person or corporation, he may also recover, in addition to his claim and costs, a reasonable-amount as 'attorney’s fees, if represented by an attorney.” The emergency clause of the Act recited, as reason for the amendment, “The fact that it is practically impossible to obtain legal services for the purpose of collecting the claims described in this Act under the present law creates an emergency * *
The U. S. Supreme Court in Missouri, K. & T. Ry. Co. v. Cade, 233 U.S. 642, 34 S.Ct. 678, 680, 58 L.Ed. 1135, discussing the constitutionality of the 1909 law (now Art. 2226), went on to say: “It is a police regulation designed to promote the prompt payment of small claims and to discourage unnecessary litigation in respect to them. The claims included -appear to be such as. are susceptible of being readily adjusted by the party responsible, within the thirty days that must intervene between the presentation of the claim and the institution of suit. * * * such penalty is obviously imposed as an incentive to .prompt settlement of small but well-founded claims, and as a deterrent of groundless defenses. * * * »
Prior to the 1949 amendment, a suitor was required to allege and prove pre[921] sentment of claim at least thirty days before filing of suit; Burlington Rock Island R. Co. v. McCartney, Tex.Civ.App., 54 S.W.2d 837; appellant here arguing that the thirty-day waiting period before filing ■of suit has been eliminated by the present law. It is his position' that demand can be made, suit forthwith instituted, and that if the amount due plaintiff be not tendered or paid within" thirty days, the statutory attorney’s fees would attach to any amount finally recovered. Manifestly, Art. 2226 cannot be so interpreted; such a construction being destructive to the very purpose of its enactment. Under appellant’s argument, the law would become an instrumentality for the exaction of maximum attorney’s fees in every case remaining on the docket for more than thirty days, as opposed to its original purpose of encouraging the payment of claims without resort to the courts. Explicit in the present Article, as in the initial enactment, is the thirty-day waiting period in which the debtor may pay the claim without .being penalized by way of attorney’s fees; and if the Legislature had intended to eliminate this provision, basic in the original Act, surely it would have done so in plain language. The 1949 amendment, in essence, has merely substituted “any amount” for "“full amount,” and removed the earlier ■ceiling of $20 for amount of attorney’s fees that may be awarded thereunder. Bellinger v. Schutte, Tex.Civ.App., 244 S.W.2d 261; Strickland Transportation Co. v. Kool Kooshion Mfg. Co., Tex.Civ.App., 230 S.W.2d 277, 282; see also historical note following Art. 2226, V.A.C.S.; the thirty-day requirement for presentation of claim remaining essentially the same as in previous enactments.
On reconsideration of 'appellant’s point complaining of improper taxation' of costs, we find same to be well taken. He, having recovered the full amount of his claim for services rendered, may properly be denominated the “successful party” within meaning of Rule 131, Texas Rules of ‘Civil Procedure; and this, despite defendants’ proven offset by way of cross-action. Marsh v. Tiller, Tex.Cr.App., 293 S.W. 223; and see Annotations under old Art. 2056, V.A.C.S.
Consistent herewith, our final order of date Jánuary 25, 1952, is reformed and reaffirmed, taxing all costs of suit, however, against’ defendants.
BOND, C. J., dissents.