(dissenting).
With deference to the views of my colleagues, I dissent. The parties are in agreement that under the Texas laws attorneys’ fees may not be recovered in a suit of this character, unless provided for by statute or agreed to by the parties in their contract. The only cases in which the Texas courts have permitted a recovery of attorneys’ fees are cases in which the court has construed that the *259surety contract itself embodied such an agreement, e. g. Mundy v. Knutson Construction Company, 156 Tex. 211, 294 S.W.2d 371. The court in that case permitted a recovery against a surety because the bond itself provided that the surety was to “repay all costs and expenses * * * [Knutson] may incur in the prosecution of any suit or suits, which they [it] may maintain against said principal on account of any breaches of said contract, or of this bond * It is difficult for me to see how a suit on a bond having such language as that would be authority for a decision of the court in the case before us. The language in the bond we are to construe was identical with that in F & C Engineering Co. v. Moore, Tex.Civ.App., 300 S.W.2d 323, in which the Court of Civil Appeals (San Antonio Division) found that attorneys’ fees could be recovered against the principal but held that no recovery could be had against the surety since there was no provision in the bond to do more than pay promptly for materials furnished.
It is difficult for me to see what reliance can be placed on the case of Fer-rier Bros. v. Brown, Tex.Civ.App., 362 S.W.2d 181, to support the majority opinion. Having held in the Ferrier Bros, case that there was no doubt but that a recovery could be had against the principal, the court then said “Any doubt as to appellees’ right to also recover attorneys’ fees from Ferrier Brothers’ surety is dispelled by the decision of United States for Use and Benefit of Caldwell Foundry & Machine Company v. Texas Construction Company, 5 Cir., 237 F.2d 705 * * * ” The opinion then quotes from an opinion of this court which raised the question on its own motion, and then as stated, “knock [ed] it down with the observation that, in suits under the Miller Act, the recovery of interest, costs, and attorneys’ fees is governed by the state law.” Our opinion then cited an Alaska District Court case and an Arkansas District Court case for the proposition that allowance for attorneys’ fees was proper. No Texas decision was cited.
•I think that in light of the clear Texas jurisprudence, as disclosed by Mundy and F & C Engineering, supra, this Court is required to determine that the judgment should be reversed and the trial court directed to enter an order denying the right to recover on a bond worded like the one here in contest.
Rehearing denied; TUTTLE, Chief Judge, dissents.