On Motion for Rehearing.
In view of appellant’s motion for rehearing, we make the following additional finding of fact:
Stalcup testified: “Mr. Galbraith, for the bank, at the time the notes were placed with me, and later Mr. Bynum, in person, contracted to pay me the 10 per cent, provided in said notes as attorney’s fees for making the collection.”
Mr. Bynum, cashier of the National Bank of Commerce, testified: “We agreed to pay Judge Stalcup the 10 per cent, stipulated in the notes as his fees in the matter. We promised to pay Judge Stalcup the 10 per cent, of the notes for his fees; but the First National Bank of Stratford agreed to take our place, and Mr. Stalcup agreed to it, and to look to the Stratford bank for his fees."
The cashier of the First National Bank of Stratford testified: “Our bank agreed with the National Bank of Commerce that we would assume their contract with Stalcup. Lipscomb had agreed all along that he would pay these fees as he was the person in real interest. I was willing that the attorney’s fees should be paid out of the proceeds of the foreclosure, and it was my understanding that the fees were to be paid after the foreclosure was consummated.”
[2] We think, under the agreement of the parties, that Stalcup, as an attorney for the collection of the notes in question, was in effect an equitable assignment of the amount due the attorney for such service. Milmo National Bank v. Convery, 8 Tex. Civ. App. *112181, 27 S. W. 822. Caldwell, by virtue of this suit and the services rendered by Stal-cup, in obtaining the judgment, secured 10 per cent, on the amount of the notes, which otherwise he was not entitled to, and which he did not pay for when'he purchased the notes. This 10 per cent, was Stalcup’s under the contract, and any sort of diligence or inquiry on the part of Caldwell, when he purchased these notes, would have given him notice of this assignment. We think the case was properly disposed of, and the motion is therefore overruled.