
    Smith, Buck & Company v. Moody.
    1. In the trial of an action upon a promissory note containing the stipulation: “ And should it become necessary to employ an attorney in the collection of this debt, we promise to pay all reasonable attorney’s fees charged therefor,” the plaintiff would be entitled to recover only the actual counsel fees incurred by him under a reasonable contract fixing the amount of the same, or, if he made no contract as to amount, then only what would he a reasonable charge; and it would be incumbent on the plaintiff to pi’ove what was charged him for collection and that it was reasonable, or else that no amount was agreed upon between him and his attorney, and then show what would in fact be a reasonable charge; but as the defendant, without objection, permitted the plaintiff to introduce evidence showing that reasonable fees would range from ten to twenty per cent., it was no cause for new trial that the court charged: “Upon the question of attorney’s fees, you are to look to this note, and then to the evidence, and determine what would be a reasonable sum for attorney’s fees, whether it be ten per cent., fifteen per cent;, or more, upon the amount of the principal and intei'est found to be due upon this note. For such amount as you may find in that way, the plaintiff would be entitled to recover by virtue of the contract as set out in this note.”
    
      2. Where interrogatories were executed by a single commissioner (it being inferential from the record that a second commissioner was dispensed with by consent), and it appeared that the envelope in which the interrogatories and the answers thereto were contained was in a badly mutilated condition, being open half its length on each side and at each of the four corners, andnot having the name of the commissioner written across the seal as directed in section 3888 of the code, but there being upon the envelope an entry signed by the postmaster at the office to which it was addressed, in these words, “ Received in bad condition in due course of mail, but can’t say it has been tampered with,” it was error to admit the answers to these interrogatories over the objection of the opposite party, based on the above recited facts, made in due time and in other respects complying fully with the requirements of section 3892 of the code touching exceptions to the execution and return of commissions to take inten’ogatories. Because of the facts stated the answers ought to have been excluded, although the envelope did have upon it an entry signed by the postmaster at the office where it was mailed, certifying that he had received the package from the commissioner, naming him, to be forwarded by due course of mail. The answers being vitally important to the plaintiff’s case, the error in admitting them is cause for a new trial.
    
      3. There was no other error requiring the granting of a new trial.
    April 30, 1894.
    Argued afc the last term.
    Action on notes. Before Judge Sweat. Clinch, superior court. October term, 1892.
    S. R. Atkinson, S. W. Hitch and S. C. Atkinson, for plaintiff's in error.
    E. P. Padsett and J. C. McDonald, contra.
    
   Judgment reversed.  