Gateley v. Humphrey

• Decision Date: 03 December 1952
• Docket Number: No. A-3725,A-3725
• Citation: 254 S.W.2d 98,151 Tex. 588
• Parties: GATELEY v. HUMPHREY et ux.
• Court: Texas Supreme Court

Page 98

254 S.W.2d 98

151 Tex. 588

GATELEY v. HUMPHREY et ux.

No. A-3725.

Supreme Court of Texas.

Dec. 3, 1952.

O'Connor & Douglass, Dallas, for appellant.

Larry DeBogory and Golden, Croley & Howell, Dallas, for appellees.

CALVERT, Justice.

This case originated in the Dallas County Court at Law No. 2 and reaches this Court on a certificate of dissent.

The certificate contains the following recitation of facts:

'Appellant's suit in trial court was for a balance due of $550 for services rendered and material furnished in an interior decorating job on defendants' home; suing also for $250 as attorney's fees. Defendants answered by general denials and cross action, alleging that the work as performed was incomplete and unsatisfactory. The jury in verdict found that plaintiff was due $550 as prayed; fixed $250 as a reasonable attorney's fee, and that $200 was reasonable compensation to defendants because of Gateley's failure to properly complete the work contracted for. It is not disputed that plaintiff made demand on Humphrey for the above mentioned balance and four days thereafter filed this suit; the trial court finding that plaintiff was not entitled to statutory attorney's fees because of non-compliance with the provisions of Art. 2226, requiring a thirty-day interval between presentation of claim and institution of suit. In this connection the net recovery of plaintiff was $350 (the amount remaining after credit of $200 due defendants on their cross action.'

The Court of Civil Appeals points out in its certificate that appellant contends that he is entitled to recover his attorney fees inasmuch as payment of his claim was not made within thirty days of presentation of his claim and that appellees contend that appellant is not entitled to recover his attorney's fees because he did not delay the filing of his suit for thirty days after presentation of his claim. The court then states that a majority of the court agree with appellees but that the Chief Justice agrees with appellant and the court certifies the following question:

'Question

'After the adoption by the Legislature in 1949 of H.B. No. 494, amending Article 2226 of the Revised Civil Statutes of Texas, 1925, is Appellant, who has a claim for personal services rendered and material furnished, still required to allege and prove, as under said Article before the amendment, that thirty (30) days have intervened between the time of presentation of his claim and the institution of suit for its collection, before he can recover attorney's fees?'

In developing our answer to the question certified we have had the benefit of the two opinions prepared by members of the Court of Civil Appeals as well as the briefs of the parties.

The forerunner of what is now Article 2226, Revised Civil Statutes, was first enacted by the Legislature in 1909 and was carried into the Revised Statutes of 1911 as Article 2178. As first enacted and as appearing in the 1911 statutes, the Article provided that one having certain types of claims against another might present the same to such other 'and if, at the expiration of thirty days after the presentation of such claim, the same has not been paid or satisfied, he may immediately institute suit thereon in the proper court, and if he shall finally establish his claim, and obtain judgment for the full amount thereof, * * * he shall be entitled to recover the amount of such claim and all costs of suit, and, in addition thereto, a reasonable amount as attorney's fees; provided, he has an attorney employed in the case, not to exceed twenty dollars * * *.' The act was held constitutional by this Court in the case of Missouri, K. & T. Ry. Co. v. Mahaffey, 105 Tex. 394, 150 S.W. 881, and by the Supreme Court of the United States in the case of Missouri, Kansas & Texas Ry. Co. v. Cade, 233 U.S. 642, 34 S.Ct. 678, 58 L.Ed. 1135, but because of a limitation in the caption it was held to apply only to claims not in excess of $200. In 1923 the statute was amended by act of the Regular Session of the 38th Legislature so as to apply its provisions to claims for lost or damaged express, not theretofore included, but the provisions heretofore quoted were left undisturbed.

In 1949 the Article was again amended, Acts 51st Legislature, p. 915, ch. 494, § 1, this time in certain material respects. As now appearing in our statutes the Article provides that a person having certain types of claims against another may present the same to such other, 'and if, at the expiration of thirty (30) days thereafter, the claim has not been paid or satisfied, and he should finally obtain judgment for any amount thereof * * * he may also recover, in addition to his claim and costs, a reasonable amount as attorney's fees, if represented by an attorney.' It is obvious that the 1949 amendment removed the limitation of $20 theretofore placed on the fees to be recovered and that it allowed, for the first time, a recovery of attorney's fees and costs if the plaintiff recovered judgment for 'any amount' of his claim as presented. But the amendment did more than this; it eliminated entirely from the Article the phrase 'he may immediately institute suit thereon in the proper court' thereby completely changing the context of the clause heretofore quoted. Whereas before the 1949 amendment the clause authorized the claimant to 'immediately institute suit' and to...