1. When a promissory note stipulated for the payment of “ attorney’s fees, to he fixed by the court, not to exceed ten per cent, of principal and interest, if collected by suit,” it was erroneous, on the trial of an action brought upon such note, for the court to instruct the jury that they would, in case they found against the defendant’s pleas, be authorized “ to give attorney’s fees against the defendants in a sum not less than ten per cent.,” where no evidence at all relating to what were reasonable attorney’s fees was introduced at the trial.
2. Where on the trial of such an action a verdict allowing attorney’s fees in accordance with such an instruction was returned, a ground of a motion for a new trial filed by defendants, and based upon the error thus committed, was good; but if on the hearing of the motion the plaintiff offered to write off the recovery of the attorney’s fees, he should have been.permitted to do so, even though defendants objected thereto; as this would have effectually corrected the error.
3. If instead of allowing the plaintiff to write off such recovery because of such objection the court allowed the verdict to stand as a whole and overruled the motion for a new trial generally, this court (there being no merit in any other ground of the motion for new trial) will affirm the judgment with direction that the recovery of attorney’s fees be written off. But it will be adjudged that the costs of the writ of error be paid by the plaintiffs in error; for, had they accepted, as they should have done, the offer made by plaintiff on the hearing of the motion, there would have been no necessity whatever for bringing the case to this court.
Judgment affirmed, with direction.
All the Justices concurring, except Little, J., absent.