390 F.2d 184
CUPPLES COMPANY MANUFACTURERS, Appellant,
v.
FARMERS & MERCHANTS STATE BANK, Appellee.
No. 24530.
United States Court of Appeals Fifth Circuit.
February 12, 1968.
Pat Beard, Waco, Tex., Will D. Pace, Tyler, Tex., for appellant.
Donald Carroll, Tyler, Tex., for appellee; Ramey, Brelsford, Flock & Devereux, Tyler, Tex., of counsel.
Before TUTTLE, GEWIN and GODBOLD, Circuit Judges.
PER CURIAM.
The appellee Bank agreed to pay checks drawn on it by depositor Trimble in favor of appellant Cupples up to the amount of $10,000. The agreement contained no provision to pay attorney fees upon default. Cupples sold goods to Trimble and presented to the Bank Trimble's check for $9,903.64. The Bank refused payment.
Cupples's diversity action against the Bank was dismissed for want of jurisdictional amount. On this appeal Cupples claims that jurisdictional amount is met by the liability of the Bank for attorney fees under Texas law.1 Attorney fees are includible in the jurisdictional amount in controversy, Missouri State Life Ins. Co. v. Jones, 54 S. Ct. 133, 290 U.S. 199, 78 L. Ed. 267 (1933); Crescent Lumber & Shingle Co. v. Rotherum, 218 F.2d 638 (5th Cir. 1955), but attorney fees are not recoverable in this case under Art. 2226, which has no application to the claim of one who has supplied materials to a principal and sues the surety on his suretyship obligation. New Amsterdam Cas. Co. v. Texas Indus., Inc., 414 S.W.2d 914 (Tex.1967). The earlier decision of this court in National Sur. Corp. v. United States for Use and Benefit of Olmos Bldg. Materials Co., 327 F.2d 254 (5th Cir. 1964), reaching an opposite conclusion as to Art. 2226 can no longer be considered controlling on this question of Texas law.
Affirmed.
Notes:
Vernon's Ann.Tex.Civ.Stat. tit. 42, art. 2226 (Vernon ed. 1964): "Any person having a valid claim against a person or corporation for * * * material furnished * * * may also recover, in addition to his claim and costs, a reasonable amount as attorney's fees, if represented by an attorney."