
    LANIER v. JONES.
    (Supreme Court of Texas.
    April 19, 1911.)
    Bills and Notes (§ 534) — Provision for Attorney’s Fee — Prooj^-Necessity.
    Judgment for plaintiff on a note providing for a 10 per cent, attorney’s fee for collection properly included such fee, though plaintiff did not prove an allegation that the note was placed in the hands of an attorney, who brought the suit under an agreement to pay him such fee, where no issue was made as to the reasonableness of the fee.
    [Ed. Note. — Por other cases, see Bills and Notes, Cent. Dig. §§ 1946, 1947; Dec. Dig. § 534.]
    Certified Question from Court of Civil Appeals of Second Supreme Judicial District.
    Action by J. E. Jones against J. H. Lanier and another. Prom a judgment for plaintiff, defendant Lanier appeals to the Court of Civil Appeals, by which court a question is certified.
    Question answered.
    Jas. A. Stephens and D. J. Broolireson, for appellant. J. S. Kendall, for appellee.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   RAMSEY, J.

The question presented for decision in this case is thus clearly stated in the certificate from the Court of Civil Appeals for the Second Supreme Judicial District:

“The above entitled and numbered case is now duly pending before us on appeal from a judgment of the county court of Knox county in appellee’s favor against one Lee Saterwhite, as the mater, and appellant, J. H. Lanier, as an indorser, for the principal, interest, and attorney’s fees due upon a certain promissory note for the sum of $300. Other persons were made parties, but a statement of their relation to the suit is deemed unnecessary. The note sued upon provided that it should bear ‘interest at the rate of 10 per cent, per annum from its date (February 15, 1908) until paid and 10 per cent, attorney’s fees, if sued upon or placed in the hands of an attorney for collection.’ The appellee alleged in his petition ‘that plaintiff has placed said note in the hands of N. R. Morgan, an attorney, for collection, and has contracted to pay him the 10 per cent, stipulated in said note, which is alleged to be reasonable compensation.’ While the record shows that the plaintiff’s petition was presented by N. R. Morgan and another, it fails to otherwise show any proof of the facts so alleged, and in view of the decision in the case of Elmore et al. v. Rugely, 48 Tex. Civ. App. 456, 107 S. W. 151, and of other Courts of Civil Appeals decisions not necessary to cite, and of your honors’ recent expressions on the subject in the ease of Rutherford v. Gaines, 126 S. W. 261, we deem it advisable to certify to your honorable court for determination the question whether it was necessary for the plaintiff, in order to show himself entitled to the 10 per cent, attorney’s fees provided for in the note, to prove, as alleged, that he had contracted to pay his attorney the stipulated 10 per cent., and that the fee was but reasonable compensation.”

We had occasion to consider and discuss a question practically identical with the one here presented in the case of First National Bank of Eagle Lake v. S. S. Robinson, 135 S. W. 372, where we said: “Clearly it seems to us by the terms of the note that the provision for attorney’s fees is treated and by the parties considered as in the nature of costs, and such promise to pay attorney’s fees is fixed as a contract of indemnity. So considered, it contains an obligation of the maker of the note to pay the cost of collection, and at the same time fixes the amount thereof at 10 per cent, of such obligation. In such case, in the absence of plea and proof that such a per cent, is unreasonable and unconscionable, the court is authorized to act upon the amount of such fees as agreed upon by the parties and enter judgment accordingly. Whether this rule should apply where the holder of the note had in fact, in the institution and prosecution of the suit, contracted with his counsel to pay less than the amount named in the note, or whether his contract should inure to the benefit of his debtor, and whether, if, on a proper showing, the amount of the attorney’s fees stipulated to be paid was found to be unreasonable and unconscionable, such contract would be relieved against, we need not now determine. In the instant case no issue is made of the reasonableness of the amount agreed to be paid. The record shows that suit had been instituted on the note, and the same contains a clear statement of the amount agreed by the parties to be paid and no other or further proof was required.”'

In this ease the' record showed that suit had been instituted on the note which is the foundation and basis of the judgment. It contained evidence of the sum agreed to be paid for and as attorney’s fees. There was no evidence introduced or issue made that such sum was unreasonable.

In this state of the record, judgment was properly rendered for the attorney’s fees-named in the note sued on.  