
    RIDER v. FIRST NAT. BANK OF PAMPA.
    (Court of Civil Appeals of Texas.
    Nov. 5, 1910.
    Rehearing Denied Dec. 31, 1910.)
    1. Principal and Surety (§ 112) — -Payment Pro Tanto — Void Assignment — Discharge of Surety.
    A .bankrupt, having borrowed certain money from a bank and given a note on which defendant was surety, assigned to the bank certain accounts to be collected and the proceeds applied to the note. Such assignment was thereafter vacated in bankruptcy, and the bank was required to pay over all the money collected to the trustee and to deliver to him all accounts and notes uncollected. Defendant was informed of the suit against the bank by the trustee and demanded that the bank resist the same. Held that, though he was no party to such suit, he had no greater rights than those vested in the bankrupt, and that, the decree requiring surrender of the accounts having destroyed the entire consideration for the contract, the assignment did not constitute a payment of the notes so as to‘discharge defendant.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 226-234; Dec. Dig. § 112.]
    2. Appeal and Error (§ 1056) — Evidence-Harmless Error.
    Where a judgment rendered against defendant was against him as surety only, the court's refusal to permit him to testify that in executing the note sued on he was surety only was harmless. ,
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4187-4193; Dec. Dig. § 1056.]
    3. Bills and Notes (§ 471) — Action—Attorney’s Fees — Petition.
    An allegation in a petition that the note sued on was placed in the hands of certain attorneys for collection; that action was brought ■ thereon and plaintiff had incurred a liability on account thereof of the full amount of 10 per cent, on the principal and interest which was a reasonable charge, was sufficient, in the absence of a special exception, to obviate an objection that the petition did not sufficiently allege that plaintiff had contracted with its attorneys to give them such an amount for their services in collecting the note.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1467-1470; Dec. Dig. § 471.]
    4. Bills and Notes (§ 491) — Amount oe Recovery-Attorney’s Fees.
    Where it has been proved that plaintiff had employed attorneys to prosecute a suit on a note stipulating for attorney’s fees to be paid by the maker, an agreement to pay reasonable compensation for their services would be implied without further proof of the fact.
    [Ed. Note. — For other cases, see Bills and Notes, Dec. Dig. § 491.]
    . Appeal from District Court, Gray County; F. P. Greever, Judge.
    Action by the First National Bank of Pam-pa against J. O. Rider and another. Judgment for plaintiff, and defendant Rider appeals.
    Affirmed.
    J. W. Crudgington, S. E. Boyett, and Theodore Mack, for appellant. Madden, Trulove & Kimbrough, for appellee.
    
      
      For other eases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DUNKLIN, J.

Appellant, J. O. Rider, as surety for J. S. Rider, executed a promissory note in favor of the First State Bank of Pam-pa ; and the First National Bank of Pampa, appellee herein, subsequently became the owner of the note. The suit was instituted by appellee to collect the note, and both J. 0. Rider and J. S. Rider were made-defendants. Judgment was rendered against both defendants for the full amount of the note, the same being against J. S. Rider by default, and J. 0. Rider has appealed.

The principal defense urged by appellant was a plea of payment, based upon the following facts which were established by the evidence: Appellee collected certain accounts due J. S. Rider, who was a merchant and who had delivered same to appellee. The amounts collected were entered as credits upon the note. Afterwards and within a period of four months from the date of delivery of the accounts to appellant, bankruptcy proceedings were instituted in the federal court against J. S. Rider, who was later adjudged a bankrupt. In the same court the trustee in bankruptcy sued appellee herein to recover the amounts collected by it on the accounts which it had received from J. S. Rider upon the allegation that, at the time of the transaction by which appellee acquired the same, J. S. Rider was insolvent; that the transfer of the accounts was within a period of four months next preceding the bankruptcy proceedings; that tne same was an illegal preference as between creditors and was void because in contravention of the bankruptcy law. In that suit judgment was rendered decreeing the transfer of the accounts to be void and adjudging that appel-lee herein pay to the trustee all moneys collected on the accounts and deliver over to the trustee all accounts and notes uncollected, which was accordingly done. Appellant introduced evidence tending to show further that, at the time appellee accepted the accounts from J. S. Rider, it agreed that the same should be taken as absolute payments pro tanto of the note in controversy. With this testimony as a basis therefor, appellant requested an instruction to the jury substantially that if such was the agreement, and if appellee had collected the accounts, then appellant’s plea of payment should be sustained. We think this requested instruction was properly refused.

If the agreement pleaded by appellant was proven, appellant could not invoke the same as a defense, freed of an inherent vice which rendered it null and void. As between the bank and J. S. Eider, who were the only parties to the alleged agreement, the decree of the federal court requiring the bank to surrender to the trustee all benefits it had received under the agreement destroyed the entire consideration for the contract, and appellant, although not a party to the suit by the trustee, could have no greater rights thereunder than were vested in J. S. Rider. Durrell v. Farwell, 27 S. W. 795 ; 32 Cyc. 169, 170. Further, it was proven, not only that appellant was informed of the suit against the bank by the trustee, but that in effect he demanded that the bank should resist it, to the end that the amounts collected should be held by the bank as credits upon the note. 32 Cyc. 159.

If there was error in the refusal of the trial court to permit appellant to testify that in executing the note he was surety only for J. S. Rider, the same was harmless, in view, of the fact that the judgment rendered against appellant was against him as surety and not as principal. By the judgment plaintiff was awarded 10 per cent, of the amount of principal and interest as attorney’s fees. The note contained the usual stipulation for attorney’s fees; but appellant complains that “there was no allegation in plaintiff’s petition nor proof to the effect' that plaintiff had contracted with its attorneys to give them said fees for their services in connection with the collection of the same or suit thereon.” In its petition plaintiff alleged : “Said note has been placed in the hands of Madden, Trulove & Kimbrough, a firm of attorneys in Potter county, Tex., for collection, and suit is hereby brought on said note, and plaintiff has incurred a liability on account thereof of the full amount of 10 per cent, on the principal and interest thereon, which is a reasonable and just charge on account thereof.” The following is copied from the statement of facts: “It was admitted by all parties that the amount of attorney’s fees sued for is reasonable. Proof of this was also made as against the absent defendant J. S. Rider by the witness R. E. Underwood.” B. E. Finley, cashier of plaintiff bank, testified for plaintiff: “We are suing in this case to recover the $500, also interest, and also attorney’s fees of 10 per cent, on the entire amount due. I have employed the firm of Madden, Trulove & Kimbrough to bring the suit.” In the absence of a special exception to the petition, we think the allegation quoted therefrom was, at all events, sufficient as against the criticism urged against it. It having been proven that plaintiff had employed attorneys to prosecute the suit, an agreement to pay a reasonable compensation for such services would be implied without further proof of the fact. The proof of such employment of attorneys being uncontrovert-ed, and appellant having agreed that the amount of attorney’s fees sued for was reasonable, there was no error in the peremptory instruction to the jury to award appellee the attorney’s fees prayed for in the event of a verdict in its favor for the principal and interest of the note.

The judgment of the trial court is affirmed.  