Jones v. Smith

26 S.W. 240 | Tex. App. | 1893

The note sued on stipulated for the payment of 10 per cent on the amount of principal and interest, to cover expenses of collection, "if placed in the hands of an attorney to enforce collection of the same." To sustain a judgment by default for this extra 10 per cent, it was necessary for the plaintiff to allege that this had been done, which he failed to do. Maddox v. Craig, 80 Tex. 600.

The endorser would be liable for the stipulated collection fees if the principal would. Williams v. Bank, 67 Tex. 606. The judgment of the court below will be reversed and the cause remanded, unless the appellee shall within thirty days file a remittitur of the 10 per cent collection fees included in the judgment by default as rendered, in which case it will be affirmed for the remainder.

Affirmed.

The remittitur indicated in the opinion was duly filed by appellee.