#### HARRIS, Administrator, Appellant, *v.*ROOT et al., Respondents.

(No. 1,925.)

(Submitted April 27, 1903.

Decided May 11, 1903.)

*Attorneys*— *Contingent Fees*— *Contract*— Abandonment— *Compensation*— Compromise *of Litigation*— Receivers—Dis*charge*— Appeal.

1. A contract for tbe professional services of an attorney in contesting a will provided tbat “your fee, in case tbe will is defeated and our clients get their shares, shall be one hundred thousand dollars,” etc. Afterwards a compromise was effected — the attorney taking part therein — and the contest was dismissed. *Held,*that by the terms of the contract the attorney was only entitled to the stipulated fee in the event the will was actually defeated, and in compromising the case the contract was abandoned, and recovery by the attorney, if at all, must be on a *quantum meruit.*

2. *OWter:*An attorney, as such, has no authority to compromise a controversy for his client, — a general retainer in a case does’ not imply such authority ; there must be special authority delegated for that purpose ,or a ratification by the client, otherwise the compromise agreement, as well as any judgment entered in pursuance thereof, is void at the option of the client.

*1603. where a contract is for a stipulated fee contingent upon the performance of specific services by an attorney, and said services are not performed, the measure of recovery by the attorney is the value of the services actually rendered, and not the amount of the stipulated fee, notwithstanding the .rendering of the specific services was prevented by the client, or by circumstances over which he had no control.

4. In an action to recover for professional services rendered by an attorney 1n contesting a will, the court, prior to the trial, appointed a receiver to receipt to the administrator of the decedent’s estate for the defendants’ shares therein, and to preserve them pending a termination of the action. Afterwards Judgment went .for defendants. *Reid,*proper to discharge the receiver pending an appeal.

*Appeal from, District Court, Silver Bow Cov/nty; B.*W. Hor-ney, *Judge.*

Action by John S'. Harris, as administrator of the estate of Eobert G. Ingersoll, deceased, against Henry, A. Eoot and others. From a judgment for defendants, and from two certain orders made after judgment, plaintiff appeals.

Affirmed.

STATEMENT OE THE GaSE.

In this action the plaintiff seeks to recover a judgment against the defendants Eoot and C'orami for $06,000, a balance alleged to be due for legal services rendered as attorney to> the said der fendants by Eobert G. Ingersoll, plaintiff’s intestate, with interest thereon from August 24, 1897. The right of recovery is based upon the following written agreement entered into between th« parties:

“Butte City, Mont, August 17, 1891.

“E. G. Ingersoll, Esq., Butte City, Montana — Sir: We agree that for your services in the contest of Maria Gunpnings and Henry A. Eoot against the probatei of the alleged will of A. *J.*Davis, deceased, rendered and *to*be rendered, that your fee, in ease the will is defeated and our clients get their shares, shall be one hundred (100,000) thousand dollars, and that your expenses and disbursements shall be paid in any event.

“There is to be no personal obligation against J. A. Corara in the, event that the interests represented by Henry A. Eoot are unsuccessful, and in noi event is the said T. A Coram obligated except to pay such fee out of the funds secured from the *161estate of A. J. Da,vis, deceased, by Maria Cummings, Lizzie S. Ladd, M. Louise Dunbar and Mrs. Ellen S. C'omue and Henry Rjoot.

“HeNry A. Root.

“J. A. CoraaiA

Tbe claim is made tba,t, while the services were rendered for Root and Maria Cummings, it was intended by the parties that they should also inure to the benefit of the defendants Elizabeth S. Ladd, Marie Louise Dunbar, and Ellen S. Oomue, who, in case the will should be defeated, would share in the distribution of the estate.

It appears from the allegations, of the complaint that previous to the ’institution of the contest, and in order to provide means to prosecute the contest, the defendants Cummings, Ladd, Dunbar, and Cornuei assigned to the defendants Root and Wells onerthird of the interests claimed hy them in the estate, in trust, to reimburse Root for the outlay necessary to procure counsel and to pay other expenses. It is further alleged that the defendant Coram, acquired by assignment some interest in these shares,, and also in the share of Root, the extent of which does not distinctly appear. Wells and the defendants other than those named are made parties in order that the amount received by Cummings, Ladd, Dunbar, Cornue, and Root, and the balance due them upon final distribution, may be ascertained, and the judgment recovered be declared a lien thereon in the hands of Leyson, the administrator with the will annexed, to secure the payment of the judgment. Andrew J. Davis died in 1890, and his estate has since that time been, and is now, in the course of administration by the district court of Silver Bow county. An account-of the proceedings therein will be found by reference to the opinions of this court, published under the title *“In re Davis1 Estante/1*27 Mont. 235, 70' Pac. 721, and 27 Mont. 490, 71 Pac. 757. The complaint herein sets them out with particularity, but they need not be repeated here. The allegations necessary to an understanding of this'controversy are, in substance, the following: That the first contest of the probate *162of the will was instituted by Root and Oummings in the year 1890; that these contestants were aided and assisted by their codefendants Ladd, Dunbár and Cornue; that, in order to «prosecute the contest successfully, the services of Robert G-. Inger-soll, an attorney at law of Dobbs Ferry., N. Y., were secured by the said Corara and Root; that the contest was tried in 1891, but without result, because the jury disagreed; that pending the trial the contract wias entered into by Root and Coram, the latter becoming a party to it, because he had theretofore become entitled by. assignment to certain interests in the shares of the contestants and their associates; that thereafter, on April 28, 1893, while the contest was still pending and undetermined, the contestants, with their associates, compromised the controversy with the proponent of the will by an agreement under the terms of which the contest was to be dismissed and the will admitted to probate; that the compromise was carried into effect by procuring a decree to be entered by. the court in March, 1895, under the provisions of which’ the contest was dismissed, the will was admitted to probate, and Root, Cummings, Ladd, Dunbar, and Cornue were declared entitled to certain distributive shares in the estate; that therafter other contests were instituted by other next of kin of the deceased, which were' settled by a compromise similar to that of April 28, 1893, to which all persons claiming an interest in the estate were parties, and in pursuance of which a decree was entered hy the court on August 24, 1897, dismissing the contests; and finally settling and determining all controversies between the' proponent and the rival claimants, and declaring the shares to1 which each was entitled; that the said decree became the basis of the distribution of the estate, and that the contestants Root and Oummings became thereunder entitled to greater interests -than they would have received had the will been finally defeated; “that hy virtue and as a result of the prosecution of said objections and contests1 of the validity of said writing so propounded for admission to probate as the last will and testament of said Andrew. J. Davis, deceased,” the said compromise contract and decree *were*pro*163cured, and became effectual to defeat tbe will, and to' secure to tbe contestants and tbeir associates all tbeir rights- as next of kin of A. J. D’aviSj deceased; that tbe plaintiff’s intestate, by procuring tbe contract and decree, fully discharged bis obligations under bis contract, and kept and performed all tbe conditions thereof to be by him kept and performed; that thereby there became due and be was entitled to° have paid to* him tbe full sum of $100,000 and bis expenses as stipulated therein, but that no part thereof has been paid, excep¡t tbe sum of $5,-000, wherefore judgment is demanded for that amount, with interest from tbe date of tbe decree.

Upon tbe issues made by tbe answers of the defendants, tbe cause came on for trial in tbe district court, sitting with a jury, on December 11, 1902. Evidence was offered by plaintiff in support of bis allegations. This was objected to by tbe defendants Coram and Hoot, and tbe objection sustained by tbe court, on tbe ground that tbe complaint did not state a cause of action against them. Tbe plaintiff having failed to amend, tbe jury was discharged, and judgment ordered entered for tbe defendants. From tbe judgment tbe plaintiff has appealed. He has also appealed from an order, made after judgment, vacating an order made prior to tbe trial by which a receiver was appointed to receipt to' tbe administrator of tbe Davis estate for tbe shares of Hoot and bis associates, and to preserve them pending a termination of this action, and also from an order subsequently made refusing, to set aside tbe order just mentioned, and to retain tbe receiver pending tbe appeal from tbe judgment.

*Mr. E. N. Harwood,*and *Mr. John, Lindsay,*for Appellant.

Did plaintiff’s amended complaint state facts sufficient to constitute a cause of action? Tbe determination of this question requires an interpretation of tbe contract in tbe light of .the facts and circumstances surrounding tbe subject and purpose thereof. Tbe facts alleged in tbe complaint should be liberally viewed to ascertain tbe intention of tbe parties.' Tbe court should have allowed plaintiff to prove all tbe facts and *164circumstances surrounding. and inhering in the transaction, which may properly be proved in support of the allegations of the complaint, for as so illuminated the contract is to be viewed, interpreted, and the intention of the parties ascertained and given effect. *(Heldebrand*v. *Fogle,*20 Ohio, 147; 1 Green-leaf on Evidence, Sees. 277, 286; *Donnell*v. *Humphreys,*1 Mont. 526; *Bhreve•*v. *Oopper Bell Mining Co.,*11 Mont 824; *Trueii*v. *Adams,*66 Oal. 221; Addison on Contracts1, 846; *Shore*v. *Wilson,*9 Clark & Ein. 569; *Barreda*v. *BUshee,*21 How. 161; *Nash*v. *Towne,*5 Wall. 689; Anderson’s Dictionary, “Interpretation,” 564; Anderson’s Dictionary, “Construction,” 240 ; *Lawrence*v. *McCa/lmont,*21 How. 447; Compiled Statutes, 1887, Code Civ. Proe. Sec. 632; Century Dictionary, “Defeat;” 2 C'oke upon Lit, Harg. Ed. 236, Seo. 384; Bou-vier’s Law Diet, “Defeasance;” Oomyn’s Dig., “Defeasance;” 2 Blaekstone, Com. 327; *Simmons*v. *West Va. Ins. Co.,*8 W. Va. 486; *In r& Demis’ Estate,*71 Pae. 757; *Qoad*v. Hart,.128 Oal. 197, 60 Pae. 761; *Chester*v. *Jumel et al.,*5 N. V. Supp'. 809; *Id.,*26 N. E. 297; *Marsh*v. *Holbrook*(N. T. Appeals), 3 Abbt. 176; *Fairbanks*v. *Scurgent,*104 N. Y. 108, 9 N. E. 870; *Mahoney*v. *Bergin,*41 Oal. 423; *Ballard*v. *Carr,*48 Cal. 74; *Howard,*v. *Throckmorton,*48 Oal. 482; *Mathewson*v. *Fitch,*22 Oal. 86; *Thwrber*v. *Meves,*119 Cal. 35; *Topeka Water Co.*v. *Boot,*42 Pac. 715; *Moyer*v. *Cantiewy,*41 Minn. 242, 42 N. *W.*1060'; *Kersey*v. *Carton,*77 Mo. 645*•,Alcorn*v. *Butler,*9 Tes. 56; *Myers*v. *Crockett,*14 Tes. 257; *Lamed,*v. *Dubuque,*86 la. 166; *Potter*v. *Ajax Mining Co.,*19 Htah, 421, 57 Pae. 270; *Majors*v. *Hickman,*2. Bibb (Ky.), 217; *Mackall*v. *Willoughby,*167 H. SI 681, 42 L. Ed. 323; *Stanton*v. *Embry,*93'H. S:. 548, 23 L. Ed. 983; *Taylor*v. *Bemis,*110 TJ. S. 42, 28' L. Ed.' 64; Anderson’s Lawi Diet., “Oomppomise,” 218; 25 Am). Bepts. 546, note; *Frank*v. *Murray,*7 Mont. 4.)

- Want of mutuality is no defense where the contract has been ■performed by one party thereto. *(Willard*v. *Jordan,,*76 Mich. •131, 42 N. W. 1085; *Storm*v. *U. 8'.,*94 H. S. 76, 24 L. Ed. ¡42; *Bobson v.-Miss. Bwer Log Co.,*61 Fed. 983 (affirmed on *165appeal) ; *Robson*v. *Miss. River Log Co.,*16 O. C. A. 400; *Hathewson*v. *Fitch,*22 Cal. 86; *Jones*v. *Snow,*64 Cal. 456; *Bloom,*v. *Hazzard,*104 Cal. 310; *Des Moines Valley R. R.*v. *Graft,*27 la. 99, 1’Am. Rep>. 256; *Fount ame y. Baxley,*90 Ga. 416, 17 S'.' El 1015; *Marie*v. *Garrison,*83 N. Y. 14; *Lancing y. Wheel Co.,*94 Micb. 272, 34 Am. St. Rep>. 341; *Mackall y. Willoughby,*167 TJ. S. 681; *Harland*v. *Territory,*13 Pac. 457; *Ballard y. Carr,*48 Cal. 74; *Howard*v. *Throckmorton,*48 Cal. 482; *Thwrber y. Meves,*119 Cal. 35; *Porter*v. *Ajax Min. Co.,*19 Utah, 421, 57 Pac. 270; *Scotty. Jackson,*89 Cal. 258; *Swain y. Seamens,*9 Wall. 254.)

This action is founded upon a promise in writing, which states the consideration, as fully so as an action based upon a promissory note, or letter of guaranty, given for labor, or credit, or things delivered, or to be delivered. *(Walker*v. *Brown,*165 U. S. 654, 41 L. Ed. 865.)

Even though in the adjudication of a case founded upon a contract, after one or more trials thereof, the court in the light of all the facts and circumstances, should hold that only a *quantum meruit*should be recovered the court would not then do what was done in this case. *(Cox y. McLaughlin,*76 Cal. 63; *Walsh*v. *McXeen,*75 Cal. 521.)

*Mr. Charles R. Leonard,*and *Mr. M. S. Gunn,*for Respondents (except John H. Leyson, Administrator).

MR. CHIEE JUSTICE PRANTLY,

after stating the case, delivered the opinion of the court.

1. The action of the court in sustaining the defendants’ objection to the evidence presents for decision the question whether the allegations in the complaint which we have stated in substance warrant recovery by the plaintiff. The complaint declares upon the contract, and unless it appears therefrom that the plaintiff’s intestate fully performed the contract on his part, or facts and circumstances are alleged justifying a failure in any particular, a recovery cannot be had. The contract is clear *166and explicit in its terms', and its construction involves no1 difficulty. To its language alone, therefore, must we look in order to find the intention of the parties. (Civil Code, Section 2203.) Taking it by its four corners; and giving to its words tbeir ordinary and popular sense (Civil Code, Section 2209), we find that Root and Coram undertook on tbeir part to1 pay tbe expenses of Mr. Ingersoll in any event, provided, of course, be performed tbe services stipulated for. Root was to pay tbe full amount of $100,000, in addition toi expense money, in case tbe will should be defeated, and be and bis clients should get tbeir shares. Coram ivas bound by tbe same undertaking, except that tbe amount be was to be personally liable for was in no event to exceed tbe amount received by bis clients, including. Root; that is, if they did not get anything, be was not to' pay anything beyond expenses. It is therefore clear that as to him tbe intention was that be should not be bound except upon tbe happening of two contingencies, to-wit, that tbe will be defeated, and bis clients actually get tbeir shares. In other words, tbe contest was to result in success, and tbe funds out of which only payment could be exacted were to be secured from tbe esp-íate of Andrew, I. Davis. Tbe duty to pay devolved upon him only upon tbe happening of these contingencies. There was included, also, tbe duty to devote tbe funds secured to¡ that purpose. If be should not secure them, be was not compelled to pay from bis own means. Tbe obligation of Root was exactly tbe same, except that, if tbe funds secured from tbe estate should not be sufficient, be became personally liable, for any balance. Tbe explanation why tbe contract was so made is manifest. Tbe will bad been offered to probate, and a contest bad been instituted by Root and Cummings which, if successful, would 'inure to tbe benefit of tbeir associates. If it should prove a failure, they would get nothing, because, under tbe terms of tbe will, tbe proponent would get tbe whole estate, except'the amount required to pay two1 or three small legacies. Coram was not "interested in tbe estate. He was willing, however, to become a party to the contract, provided be' could share *167in tbe result of a successful contest, and not be beld in case of failure. Mr. Ingersoll was willing to contribute to tbe enterprise his experience and ability, upon a contingency, provided his share was made proportionately larger; and he was willing to embody in the contract the provision that neither Hoot nor Goram should be liable, except upon a complete success- of the enterprise through a contest, and the actual receipt by the contestants and their associates of the shares to which they would thus become entitled. A judgment sustaining the contest would not be sufficient. The shares must be received.

Counsel for the defendants contended in the court below, and contend here, that this is the only construction of which the contract is susceptible, and that as the complaint itself shows that the contestants- and their associates succeeded by means of a compromise of the litigation, in negotiating which Mr. In-gersoll took part, instead of by-means of a contest, which Mr. Ingersoll did not conduct to- successful termination, the contract for the contingent fee was abandoned by the parties, and that a recovery against the defendants, if any may be had at all, must be upon a *quantum, memit,*for services other than those provided for by the contract. Counsel for plaintiff contends, however, that the compromise of the litigation by which the contestants obtained certain shares- was *pro tanto*a defeat of the will; that under the decree the defendants have received and will receive amounts largely in excess of - the sum due the estate of Mr. Ingersoll, and that in any event the procurement of a final decree settling the contest, and ascertaining the shares to which the contestants are entitled, though such decree was brought about by a compromise, was a complete discharge by Mr. Ingersoll of his obligations under the contract; and that his estate is entitled to recover on the contract

We agree with the contention of the defendants. An attorney, as such', has no authority to- compromise a controversy of his client, no- matter what may be'the difficulties involved, nor however advantageous the result may be to the client. A general retainer in a case does not imply such authority, and, if a *168compromise of the controversy be made, it must be made under special authority delegated for that purpose. Otherwise, and in the absence of a ratification by the client, the compromise agreement, as well as any judgment entered in pursuance of it, is void, at the option of the client. *(Holker*v. *Parker,*7 Cranch, 436, 3 L. Ed. 396; *Preston*v. *Hill,*50 Cal. 43, 19 Am. Rep. 647; 3 Am. & Eng. Ency. of Law, 2d Ed., 358; *Jubilee Placer M’ng. Co.*v. *Hossfeld,*20 Mont. 234, 50 Pac. 716.) Nor is this rule, which is sustained’by the current of authority,' changed or modified in any respect by Section 398 of the Code of Civil Procedure. *(Preston*v. *Hill, supra.)*Mr. Ingersoll could not, therefore, under the contract, assume the authority to make any compromise of the contest. His duty required him to prosecute it, and he could not be held entitled to recover under his contract, short of a successful result of the controversy, followed by actual distribution to his clients. Additional authority was therefore necessary to this end, and, when this was conferred by his clients and accepted by him, there was a mutual abandonment of the contract; for the negotiations, were not included among his duties under the contract, and -when the compromise was consummated the contract could not be performed. This impossibility of performance was the result of the subsequent mutual arrangement between him and his clients under and by virtue of which the compromise was made. The services stipulated for under the contract were therefore never performed, and the contingent fee fi} be paid for them could not be recovered. The contract was entire, and nothing short of entire performance would authorize a recovery upon it. Nor would the. case have been different, had the compromise been effected without the aid or consent of Mr. Ingersoll, for, where the stipulation is for a contingent fee, no matter whether the rendering of the services is prevented by the client, or by circumstances over which he has no control, the measure of recovery by the attorney is the-value of the services actually rendered, and not the amount of the stipulated fee. These views, we think, are correct upon principle, and are sustained by the Weight of au*169thority. *(Tenney*v. *Berger,*93 N. Y. 524, 45 Am. Rep. 263; *French*v. *Cunningham,*149 Ind. 632, 49 N. E. 797; *Western Union Tel. Co.*v. *Semmes,*73 Md. 9, 20 Atl. 127: *Polsley & Son*v. *Anderson,*7 W. Va. 202, 23 Am. Rep. 613; *Agnew*v. *Walden,*84 Ala. 502, 4 South. 672; *Pemberton*v. *Lockett,*21 How. 257, 16 L. Ed. 137; 3 Am. & Eng. Ency. Law, 2d Ed., 427, 431, and notes.) The allegations of the complaint fall very far short of showing an entire performance of the contract. The action of the court, therefore, was. correct in sustaining the objections to the introduction of evidence under the complaint, and in directing judgment upon the plaintiff’s failure to amend.

Motion to modify opinion denied May 18, 1903.

2. The first order made after entry of judgment, though in form an order vacating the appointment of a receiver, was equivalent to an order discharging, the receiver, and was properly made. The court had entered a final judgment. It had lost jurisdiction of the case, “except for the purpose of entertaining a motion for a new trial, or such other proceedings as might properly and lawfully be had, looking to' a revision or correction of its action, or to enforce the decree as rendered. It had no authority, inherently or by statute, or by any rule of this court, to retain jurisdiction for any purpose pending the appeal.” *(Finlen*v. *Heinze,*27 Mont. 107, 69 Pac. 829.) It was therefore the duty of the court to discharge the receiver, who, after entry of judgment, had no other functions to. perform. It necessarily follows that the court was also right in refusing to set aside the order just mentioned, and to retain the receiver pending appeal from the judgment.

The judgment and orders are affirmed.

*Affirmed.*