
    GAMEWELL v. KILLION.
    (No. 2630.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 10, 1926.
    Rehearing Denied April 21, 1926.)
    Attorney and client <3=140 — Where no contract is made governing amount of attorney’s fees in collection of note providing for attorney’s fees, attorney dischargedi before collection is entitled to only reasonable compensation for services performed, and not amount provided in note.
    Where note providing for attorney’s fees is given attorney for collection, but no contract is made governing his fee nor authority given him to sue on note, and he is discharged before collection, he is entitled^ to only reasonable compensation for services performed, and not to amount stated in note.
    other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Error from District Court, Dallam County ; Reese Tatum, Judge.
    Action by Geo. W. Killion against W. I. Gamewell and others. Judgment for plaintiff against defendant Gamewell, and the latter brings error.
    Affirmed.
    Clifford Braly, of Dalhart, for plaintiff in error.
    R. E. Stalcup, of Dalhart, for defendant in error.
   HABL, C. J.

On the 11th day of December, 1919, defendant in error, Killion, conveyed to W. M. Green a half section of land in Dallam county, taking in part payment therefor Green’s note in the sum of $7,500, due in five years. The note bears interest at the rate of 5 per cent, per annum from date, interest payable annually on the 1st day of March of each year; it contains the usual acceleration clause, and provides for 10 per cent, attorney’s fees if placed in the hands of an attorney for collection. In both the deed and the note the vendor’s lien is expressly retained to secure the payment of the note. Killion placed the note in the Citizens’ • State Bank of Dalhart, and upon default by Green in the payment of interest installments the bank placed the note in the hands of plaintiff in error, Gamewell, an attorney, for collection.

On February 26, 1925, Killion instituted this suit in the district court of Dallam county against Green, Gamewell, and the bank to recover the amount of the note, alleging as against Gamewell and the bank that he placed the note with said bank for safe-keeping March 1, 1920, and that about March 1, 1922, the bank wrongfully delivered the note to the defendant Gamewell, and that the bank and Gamewell had collected from Green the interest provided for in the note for the years 1923 and 1924, which they were unlawfully withholding from him. He denied that either the bank or any of its officers or Gamewell was his agent or authorized to represent him for any purpose.

Gamewell answered by a general denial, and specially alleged that because of the failure of Green to pay all the interest due on March 1,1922, plaintiff, Killion, had declared the entire debt due, and had. authorized the president and vice president of the bank, as his agents, to place the note in Gamewell’s hands for collection, which was done on May 4, 1922, and had promised to pay him the 10 per cent, attorney’s fees stipulated in the note; that on the 12th day of May, 1922, he (Gamewell) collected from Green $277.86 interest which he had promptly deposited in said bank to the credit of plaintiff, and which plaintiff had checked out and received; that in 1923 and again in 1924 he collected $375 as interest from Green, aggregating $750, which amount he had applied on his claim as attorney’s fees; that plaintiff Killion had wrongfully discharged Gamewell from acting as his attorney, and had not given him a reasonable time in which to collect the money, nor an opportunity to do so; that Green was able to pay the amount due on the note; wherefore, he was entitled to recover $777.86 as attorney’s fees, for which amount he prays judgment.

The bank answered by general denial, and specially alleged that it was authorized by plaintiff, Killion, to place the note in the hands of Gamewell for collection; that Kil-lion ratified its acts in doing so, and had received all of the money due him which had been paid by Green.

Green answered by general denial, and specially alleged that he had paid all of the interest due upon the note, together with $1,-000 of the principal. He also pleaded estop-pel and waiver against Killion, as to the attorney’s fees, and by cross-action against the bank alleging fraud, prayed that he recover of the bank such amount for attorney’s fees as the plaintiff Killion might recover against him. The pleadings of the parties further raise these material issues: (1) The want of authority on the part of the bank to place the note in Gamewell’s hands for collection ; (2) whether Killion had contracted to pay Gamewell the 10 per cent, attorney’s fee stipulated in the note; and (3) the amount of compensation which Gamewell was reasonably entitled to recover for the services performed. The ease was tried to the court without the intervention of a jury.

The record contains no findings of fact or conclusions of law.

The judgment is that, since Green had tendered into court the balance of the principal and interest due on the note, plaintiff take nothing as to Green; that plaintiff recover nothing of the bank; that Green recover nothing against the bank on his cross-action; that plaintiff recover of Gamewell $650, that being the amount of attorney’s fees which Gamewell had collected, less $100 allowed Gamewell as a reasonable attorney’s fee.

Gamewell alone has .appealed from the judgment.

It will not be necessary to consider the numerous propositions and counter propositions urged in the brief separately or in the order presented.

The substance of Gamewell’s contentions is that because of Green’s default in the payment of interest annually Killion had exercised the option given him and declared the entire debt due, and had authorized the officers of the bank to place the note in his hands for collection; that, having received the note under the orders of Killion, and having endeavored to collect it, he was entitled to the fee of full 10 per cent, provided in the note, and that Killion could not thereafter, by wrongfully discharging him, defeat his right to full compensation.

The substance of Killion’s contentions 'is that, where such a note is delivered to an attorney for collection and is later recalled by the owner before collection is made, the attorney is not, as a matter of law, entitled to the 10 per cent, attorney’s fee provided in the note, in the absence of an express agreement on the part of the owner to pay that amount, but -is entitled to recover only reasonable attorney’s fees for the services actually performed.

We may presume from the fact that the judgment allows Gamewell $100 as attorney’s fee that the court found that the bank placed the note in Gamewell’s hands under the direction of Killion. There is sufficient evidence to support such a presumed finding. After the note had been delivered to Game-well, by the bank, he wrote Killion, in part, as follows:

“In order that there may he no misunderstanding, please write me in answer to the following questions: 1. Do you agree that I may have the attorney’s fee provided for in said note? 2. If I am unable to collect the principal and interest of this note, together with the attorney’s fees at an early date, do you desire that I file suit against Mr. Green at an early date?”

The subsequent correspondence fails to disclose any agreement on the part of Killion that Gamewell should have the 10 per cent, attorney’s fee provided in the note, and further fails to show that Killion authorized Gamewell to file suit The bank was not authorized to contract with Gamewell concerning the amount and payment of his fees, and the record shows that they did not undertake to do so. If the issue of the reasonableness of the attorney’s fee had not been raised in the pleadings, or if a contract on the part of Killion to pay 10 per cent, was shown, there ■would be some ground for Gamewell’s contention that he was entitled to the full 10 per cent.; but, notwithstanding the conflict which has previously existed in this state with reference to the nature of a stipulation for attorney’s fees, it is now settled by the Supreme Court that such a contract contained in a note is one of indemnity, so that only the amount of attorney’s fee contracted to be paid, or a reasonable amount, in the absence of a contract, is recoverable. The pleadings and evidence are sufficient to support the court’s finding that $100 was a reasonable amount to compensate Gamewell for the services performed by him at the time Killion dismissed him. Brannin et al. v. Richardson et al., 185 S. W. 562, 108 Tex. 112; 8 C. J. 1102. Where there is no contract governing the amount of an attorney’s fees, and he is wrongfully discharged before the contemplated services have been fully rendered, he is entitled to recover only reasonable compensation for the services performed.

We find no reversible error in the record, and the judgment is therefore affirmed.  