#### J. D. McPherson, Surviving Partner of the firm of Carlisle & McPherson, *vs.*Mary A. Cox.

No. 14,503. At Law.

Decided February 24, 1879.

1. Á verbal contract by which a client agrees to sell the property if recovered, and out of the proceeds to pay his attorney a stipulated fee, is not void under the statute of frauds, as it may be performed within a year. So held on this contract. 6 Otto, 404.

2. A motion for a new trial upon a bill of exceptions is equivalent to a writ of error, and the general term will only look at the matter of law it raises. On a motion for a new trial upon a case stated the court will consider the whole case, and may refuse a new trial where the verdict is right, even if the court below erred in point of law.

STATEMENT OE THE CASE.

This action was brought to recover the' amount of a contingent fee for services as attorney at law, in conducting suits for the defendant to recover a square of ground for her, situated in the city of Washington The contract was *24oral, and described in the third count of the declaration as follows:

That they, the said plaintiffs, in consideration of the sum of five thousand dollars ($5,000) to be paid to them as aforesaid by the said defendant out of the proceeds of th.e sale of the land, in the event of success of the services by them for her to be rendered, they expecting and charging nothing in the event of thier failure, would give such case, render s'ueh services, and undertake in the Supreme Court of the District of Columbia such litigation within their joint or several powers as attorneys, counselors or solicitors, as might be or become necessary or proper for the recovery of the land aforesaid from the possession of the said Angus and Lewis, whether or not such litigation embraced appellate proceedings in the United States Supreme Court; and she, defendant, agreed that in the event of the success of their services she would sell the said laud and pay them for their services the sum of five thousand dollars ($5,000) so soon as she should obtain by and from the sale of said land a sufficient amount of money wherewith to pay the same. The declaration then avers that they recovered possession of said land and the defendant has sold the same at and for the sum of thirty-eight thousand dollars, and out of the proceeds thereof the defendant, prior to the month of January, 1878, obtained a sufficient sum of money to pay the plaintiff the said sum of five thousand dollars.

The plaintiff' testified that he and Mr. Carlisle accepted the engagement upon the terms she had offered,, which were restated by her and which were five thousand dollars contingent upon success, and to be paid out of the property, she agreeing to sell the property, and out of the proceeds of sale to pay the fee of five thousand dollars. He thought the fee a fair contingent fee, and that they had the prospect, when they took the case, of having to wait until the termination of the lease, more than seven years, before they could recover the property and realize their fee.

The defendant objected to oral testimony to prove the making of the contract in the third count of the declaration *25set forth, and the court sustained the objection, ruling that the special contract was void because the same had not been reduced to writing; that the statute of frauds and perjuries applied to the contract, and the court so informed and instructed the jury, and thereby the plaintiff had to depend for compensation in the premises due to him and his late partner for services rendered the defendant in the recovery of said square 312, upon the value of the services actually rendered, regardless of any alleged special contract; and to that point testimony was given and the jury gave a verdict for plaintiff for $1,000 with interest; and the counsel for the plaintiff made his exception to said ruling, opinion and instruction of the Chief Justice presiding, and this constitutes the bill of exceptions in the cause upon which a motion for a new trial is made here in the first instance.

George F. Appleby for plaintiff:

There is but a single question arising in this case, and that is whether the special contract set out in the amended third count of the declaration is an agreement that by it's terms was not to be performed within one year from the making thereof, and hence had to be proved on the trial by evidence in writing. The court below held that the statute of frauds applied to the case and that the contract was invalid because it had not been reduced to writing.

The same contract came recently before the TJ. S. Supreme Court in the case of Cox *vs.*McPherson, with the same testimony in proof thereof as is given to the bill of exceptions, and counsel for Mrs. Cox, in that court, in his brief and argument, contended that the contract was void as against public policy and because not in writing as required by the statute of frauds. The United States Supreme Court declared otherwise and upheld the contract in every respect. Of course it is not necessary to show any other authority.

Albert Pike and L. H. Pike for defendant:

The special count sets up an agreement made orally be*26tween Carlisle & McPherson and Mrs. Cox, by which they were to recover from Angus and Lewis the property in question, and by which “ she agreed that in the event of the success of their services, she would sell the said land, and pay them for their services the sum of five thousand dollars, so soon as she should obtain by and from the sale of said land a sufficient amount of money wherewith to pay the same.”

This, if such was the agreement, gave them the right, upon sale of the property by her, to claim as their own, every dollar that might be received by her, of principal, of the purchase-money, or interest, until the fee of five thousand dollars should be fully paid. It left her no right to receive and use one dollar until then.

And consequently it is averred that she did sell the land for $38,000, and by such sale and out of the proceeds had obtained, before suit instituted, and not before January, 1873, “ a sufficient sum of money to pay the plaintiffs five thousand dollars.” It is not alleged that she had received a dollar more.

The testimony does not prove that agreement. It proves an agreement for a fee of $5,000, “contingent upon success, and to be paid out of the property, she agreeing to sell the property, and out of the proceeds of sale' to pay the fee of five thousand dollars.” Such it was, as stated by Mr. McPherson. Mr. Carlisle says, “she proposed that we should pay ourselves out of the fruits of the litigation, the sum of five thousand dollars, contingent upon our success in recovering the property.”

The contract was not at first so stated by the plaintiff’s declaration. The *original*third count alleged that Carlisle & McPherson undertook the business “in consideration of the sum of five thousand dollars, to be paid to them by the said defendant out of the proceeds of the sale of the land aforesaid, when the same by her should be realized ; ” and that she agreed “that she w7ould sell the land, and pay them for their services out of the proceeds of sale, when the same should be realized.”

*27That was true as to the mode of payment. Mr. McPherson swore, in his affidavit to the account filed in the declaration, that Mrs. Cox owed him and Mr. Carlisle $5,325, as in the declaration set forth.

Under the proof made, he has no cause of action, not only because the contract sued on is not proven, but also because it is clear that he and his partner did not obtain by the contract as proven, and as at first truly declared on, a right to ■.demand and have all that Mrs. Cox should realize from the property, excluding her from the right to use or retain one cent, until they should be paid their whole fee of five thous- and dollars.

JBy virtue of the contract as proven, the owner of the property and the lawyers had a joint interest in the proceeds of sale of the land. It was sold on a credit of ten years, for $38,000. If the fee was to be $5,000, the lawyers were entitled to claim five thirty-eighths of the moneys as they should be realized ; nothing more. Of course, as the declaration alleges only that she realized $5,000, it is impossible for the survivor, on the proof, to maintain his action at law for that $5,000.

It is impossible for him to maintain any action at law at all, until she has realized the whole purchase money. Until then, he can only sue for his proportion of five to thirty-three, of the moneys she from time to time receives. A swift court, which declares itself satisfied that the services of Car-lisle & McPherson wTere worth $5,000, when there was not in the case before it any averment in the pleadings as to the value of the services, nor a word of proof from which any conclusion could even remotely be reached as to that value, also ventures the opinion that perhaps, after all that has happened, there is a present right of action for the whole fee.

It is very clearly the law, that no action at law lies to recover the share of McPherson in any portion of the proceeds of sale that Mrs. Cox may receive. There is no such right of action at law, for fragments and fractions of an integral sum.

*28The plaintiff has not and cannot have a right of action at law at all, on such a contract, while the proceeds of sale remain in part unrealized. He is entitled, if his fee be $5,000, to five thirty-eighths, and no more, of the moneys heretofore collected for or by her, and to the same quota on all sums hereafter collected ; and we cannot see how he is to enforce this right, except by appealing to a court of equity, and having the moneys collected by its authority, and divided proportionally.

It is enough, for the purposes of this motion, that the exclusion of the testimony, on the ground that the contract was ■within the statute of frauds, has done the plaintiff' no wrong or harm or injustice ; that if he should have a new trial, that testimony would be eventually excluded as not proving what the declaration alleges, but a very different agreement; and because, upon the proof and the other allegations of the declaration, he has no cause of action.

Mr. Justice Wylie

delivered the opinion of the court.

The contract set forth in the bill of exceptions to pay the plaintiff' for his services as an attorney, was before the Supreme Court in the case of McPherson *vs.*Cox (6 Otto, 404), and that court decided that it was not void under the statute of frauds, because not in writing, for it might be performed within the year. And again, the latter case was reaffirmed in Walker *vs.*Johnson, in the same volume, 427. The fact that it may be executed within the year, saves it . from the operation of the statute. The court below held that it was manifest that its execution was postponed beyond that period, and in this respect the decision was wrong and exception well taken.

But a point is made and argued with ability by defendant’s counsel, that the hearing now before us is on a motion for a new trial, and it is to be heard precisely as if it were a motion on a case stated, and that therefore the new trial will not be granted, if upon the whole case the verdict was right, notwithstanding the ruling of the court might be wrong. This position is true generally on a motion for a new trial, *29upon a case, because the court can then consider all the facts. But under our peculiar system, this rule will not apply to a bill of exceptions.

We have no writ of error ; we have a bill of exceptions, upon which a point of law is raised. We regard a motion made in this court, based upon a hill of exceptions, as equivalent to a writ of error itself, and therefore we look only at the matter of law it contains.

Now, the point argued by the defendant below is this : Here was a contract for paying Messrs. Carlisle & McPherson §5,000, in the event of their success, in a certain controversy between Mrs. Cox and Mr. Angus and Mr. Lewis. The amended declaration set forth that Mrs. Cox was successful in that controversy, and that her agreement was to pay the §5,000 out of the first money received from the sale of the property. But the contract proved, is that the fee was to be paid when the proceeds of the whole property were received.!- Now, this was different from the contract sued upon. But that point was not made in the court below, nor was any objection made to the proof, on the ground that it was at variance with the declaration. If the point had been made in the court below, the plaintiff would have had a right to ask for leave to amend his declaration. We will, therefore, not refuse him the benefit of a new trial, and an opportunity will be offered for an application to amend, should he be so advised.

The judgment is reversed, and a new trial directed.