Petition for rehearing denied December 16, 1941 ON PETITION FOR REHEARING 12. Upon consideration of appellant's petition for rehearing, we find no support in the testimony for respondents' allegation that $300 is a reasonable attorney's fee to be allowed herein. This allegation is denied in appellant's reply. "Upon this issue no evidence was offered by either party, and this being so, the statutory fee only will be allowed." Lassas v. McCarty, 47 Or. 474,484, 84 P. 76. See cases there cited. Also Columbia RiverDoor Co. v. Todd, [on petition for rehearing], 90 Or. 147, 154,175 P. 443, 860, and cases there cited.
In the case at bar, we find no stipulation authorizing the trial court to fix the fee; and, hence, such cases as Olson v.Boling, 120 Or. 554, 252 P. 961, and Randolph v. Christensen etal., 124 Or. 661, 671, 672, 265 P. 797, are not in point.
The former opinion is therefore modified to the effect that the allowance of $200 as a reasonable attorney's fee in favor of defendants should be and is deleted from the final decree herein.
The petition of appellant for a rehearing is denied. *Page 640