*1 Recovery opinion against In the it is said: “I. in authorities. them event must be $270, D. Mann had to intervene T. and O. restricted the amount the bond they signed. assignment in the de- This assert of error is also upon belonged them and not mands sued the sustained. corporation; and, substance, in that just is by plaintiflS It is further contended in they is what did.” This observation error, undisputed shows, evidence applicable reported Company in instant case as was the that some the stock in named the chattel case, authority of Scott & mortgage by Wilson, was not owned al., v. D. Mann & Sons et O. therefore was error for the to award cited, assignments of error cases therein foreclosure on such stock. It is also contend respect are to this contention overruled. conclusively ownership ed that this as to fact plaintiff AVhen trial amend establishes fact of their further conten Wilson, ment, thereto, stock, by Wilson, also filed a answer tion that this owned amendment, setting up mortgage it, trial when Wilson executed execution; in a had been but added after such jurisdiction against Morgan hence, in favor of a material alteration was this up company, instrument, destroyed validity. mercantile and further set its he was now owner of cannot allow this contention. Even if it be assignment right of and claimed the set-off conceded that the evidence establishes judgment. This matter amount fact mortgage that some of the stock included in the wife, of set-off was not presented the court to allowed but owned because joined trial of the case and error is she her husband in the execution statute, duly assigned. mortgage plac While the cases and thus consented to the justice ing security property from a to a of a lien on her pleaded, debt, complain. does not allow new set-off to be this now she cannot These ruling think still the court erred contentions are overruled. the instant case. This defense could out, pointed Because of the errors herein justice court, pleaded have because this case must revei’sed and remanded for Kerley at owned cause of action another trial. right. in his own It became admissible Reversed and remanded. pleading plaintiff, pre .order to judgment against him, in vent tervention of secured done, Morgan. plead this was When against legal the. defense against Morgan, orig did not exist ROBERTSON v. NATIONAL SPIRITUAL plaintiff, matured, inal at once and the de ISTS’ ASS’N OF THE UNITED not have been denied such fendant right. STATES OF AMERICA. assignment is This of error sustained. 10441. No. assigned judg Error because the Court of of Texas. Dallas. appealed from all of costs for ment keeping by. taxed Dec. 1929. taking care of the stock seized Rehearing Denied March constable under order of sale is justice sued out of the We think this court. was error. The cost occasioned the un obey lawful constable act supersedeas, after it was the writ of served plain upon him, should not be taxed perfecting of in error. The tiff with the bond, supersedeas the amount of which had and the the been fixed approved on which had sureties county clerk, annulled the justice court, including the order sale that issued, duty of had been and it became the n constable, with the as soon as he served supersedeas, proper writ of to surrender the disobey ty chose to this to Wilson. When he property in the face of writ and to hold the peril. it, property' his own at he held such assignment This of error is sustained. supersedeas bond, The sureties on the appeal, complain judg because for an ment is rendered in them amount sum named the bond excess of the This, signed course, is error. as sureties. *2 S90 hereby part covenant with tbe first diligently executor of tbe last will and testament of John L. September 4,1911, of date *3 which has propounded probate been ble, Texas, for in the Honora- County County, Court of Tarrant necessary and that will render all services to effect the of in Dallas, said will McCutcbeon, and William of Currie may all of the courts which the same Austin, appellant. Robertson, P. of contested or to which the same be taken Me., Barwise, Bangor, Black & Mark of A. by appeal or of error. Worsbam, Rollins, writ Austin, Graves, and of ap- Dallas, Hincks, Ryburn Burford, of & “In of consideration said services rendered pellee. parties and to be rendered the said part, parties part second said do first hereby VAUGHAN, parties covenant said of J. part, them, second of survivors as fol- Robertson, plain- Appellant, P. William , lows: appellee, petition tbe of tbe tiff, bis Spiritualists’ ($2,- Association “Two National United Thousand Five Hundred Dollars corporation, America, cash, 500) of a Two Thousand Five States Hundred Dol- day below, defendant, ($2,500) on tbe 3d in tbe court lars when' the case the Dis- reaches sought April, appeal, appealed, wherein trict Court on of recover of should appellee $7,500, there- interest with should and Court it not be to the District per April 19, by any of 6 contestant, at rate tbe on from then said Two Thou- cent, annum, alleged per due Hjmdred paid to be ($2,500) sand Five Dollars upon contract appellee upon ty a certain written the conclusion of trial in said Coun- 15, 1919, duly and deliv- May parties executed Court. And should said of dated ered the sec- practicing attor- part finally appellant, a licensed having ond succeed in said will Ethridge, competent jurisdic- Mc- ney, duly firm of tbe law and a court of Tex., by ap- Dallas, Bromberg decree, parties of & final Cormick pellee, tion then said of president, through acting part agree thereupon and the first pay and covenant acting Warne, parties said part and Warne of said the second designated being (be tbe Twenty-Five sum himself further lars of Thousand Dol- of ($25,000).” John and testament as that, estate); and thereof, appellant and bis will and tbe executor of Appellant alleged that, within mutual tbe terms under understanding parties of and interest and firm were retained said thereto, he was to receive one-half of all sums represent said appfellee Warne and said payable contract, due and wise, nity under said and like- proceedings prosecution of tbe iñ tbe Warne understanding, opportu- within such will; necessary probating and said for tbe of payment earn and of one-half contract, appel- that, tbe terms being part same material obligated themselves Warne and said lee pay mick performance consideration the services Ethridge, McCor- and by parties be rendered of the sec- compensation Bromberg, for serv- & stages ond under said contract at all under said to be rendered rendered and ices litigation; immediately cash, contract, sum of tbe making contract, appellant and F. M. litigation paid, firm, diligently per- of said law appeal, the district court reach should in tbe required all formed until services them said sum to be such absence day April, 1921, on or the 18th about paid a conclusion probation reference to'the of in Tar- will in tbe undisposed said will at county, (which sum was Tex. rant for the Fourth the Court Civil Su- having to tbe district preme Texas-; Judicial District county), tbe further sum of and court of $25,000 at all times thereafter and dy, was rea- pro- and when said will if willing, perform- able and desirous of and or decree a court final bated necessary ing all services secure the final jurisdiction. per- probate of said will and would have appellee In contract services, such formed and would have secured parties part, first named wrongful result, but for act such law firm” were named “said by appellee; breach of said ternative would by in the al- part. Following parties tbe second are tbe appellant alleged contract, provisions of said necessa- material probably have been secured and there- disposing ap- ry to be considered have been entitled to receive he would peal: proportionate part due $12,500; part, $25,000, wit, tbe said of the second to day that on or “That fee of April, 1921, being duly practicing lawyers, appellee, 18th licensed do about the side, acting Appeals, on the one said Honorable with said Court of dis- missing jurisdiction: representing matter in the the interests cause for want of those appellee, probating that as a said will adverse to result of order dismissal, County application over the the advice and consent protest appellant, agreed County, denying con- of Tarrant litiga- probate said last summated so-called settlement will of John L. de- ceased, in reference was left matters involved undisturbed.” whereby will, probating of said April 2, Trial of this cause had on accept agreed accept receive and and would which resulted in a in favor ap- $75,000 cash, of which consideration rendered on instructed ver- relinquished pellee re- and said Warne dict, properly the review of which is before proper- to and interest leased appel- us at the instance of and on behalf of will, bequest ties included *4 lant. destroyed and the action involved and dispose In order to of the case made refusing litigation, thereby terminated the appellant developed uncontroverted facts and estab- opportunity further to cause said testimony by appel- lished introduced finally probated, appellee will to by wrongfully contract, and there- be lant, only necessary find it to consider repudiated breached and said following assignments error, of viz.: appellant’s damage in the sum of “(1) refusing charge The court erred together $7,500, from interest thereon with jury, requested by plaintiff cent, in writ- per per at the rate annum. date of 6 ing, plaintiff to return a of verdict favor Appellant alleged appellee paid further that and defendant for the amount sued $10,000, firm an said law additional fee for.” And grow- on ing of the consummation of and account compromise settlement, “(2) giving jury per- and out said The court erred in $10,000 emptory that said he sum of received-the instructions return a verdict $5,000 allowing $5,000; plaintiff defendant, said sum in favor of and in upon returning judgment against plaintiff credit sum of one-half of the $25,000 jury per- additional fee of contracted be verdict said returned’ paid conditionally, emptory instructions, judg- there remained balance the verdict and $7,500. contrary supported due him of ment to and undisputed the law and the evidence. The lengthy by appellee, answer Of the it justly evidence shows that the defendant was only necessary quote following legally plaintiff and of indebted sum application section thereof: “That the $7,500.00 with interest” probate the last will and testament of John Following Jackson, are the uncontroverted pending facts re- L. which was Pro- County, Texas, the record to estab- vealed have been bate Court of Tarrant at the lished, namely: during ty, Tex., That one John D. into, time the contract sued was entered coun- his lifetime a resident of Tarrant in a and resulted denying said Probate Court day April, application. died about the 19th said That county, leaving said an estate of the hearing as a result of the trial and approximate composed will, value of said the contest land, stock, money, parties of ties and other securi- bank theretofore filed sustained, the adverse was and in accordingly situated Tarrant and en- was said^ state; County denying appli- other counties in said that said Jack- in the tered cation to Court purported son left what to be his last will said will. That thereafter whereby testament, attempted prosecuted, and devised and be- was to be queathed appellee, Spiritual- attorneys, by plaintiff repre- the National associate and proponents senting will, ists’ Association the United States to the County. America, personal property, and real and District such tried in Tarrant 'That purported appeal again reasonable value the issues benefits were thereof/ $400,090. will, person again of should who District Court In said and there re- adversely plaintiff’s president cor- sulted be of said defendant clients. poration subsequent purported judgments That from the District Court of Tarrant application at the time and to the the the County denying (cid:127)time of the death of said Jackson made was will, will; sole executor of such of that at the time taken, attempted,

was to the Court Civil the death of said Jackson one B. Appeals. proceeding Warne, Chicago, Ill., president That while ap- was was pending pellee corporation, thus of Civil and therefore the.Court des- became Supreme ignated person for the Fourth and Judicial Dis- selected Jack- Antonio, trict of Texas at San it was will; mad© son to be the executor of said 1,May 1919, appellee, known to said Court that no acting by bond had about and given required by County through president, George been Probate Court Warne, law the and County, upon acting himself, of Tarrant Warne .for and retained depended. employed appellant present District Court to file and Whereupon day April, on or about the 13th in the court of Tarrant coun- 192,1, Tex., by ty, an order September was entered and an instrument of April 18,1921, On purporting will testa- or about Warne tbe last ap- Jackson; appellee, acting Judge through F. M. of tbe said John ment pellant Etbridge (now deceased), law- of tbe introduced E. M. Bromberg, of Etbridge, into a settlement with Jackson and Robert Sara A. & Mrs. Vestel McCormick firm Dallas, Tex., deceased), (now Ingersoll Jackson, to said agreed appellee upon appellant’s of which was recommendation and said by $75,000 employed Etbridge, the sum of firm in full settlement of law appel- its claims under said instrument to assist offered for and said probate, Jackson; prosecution as tbe last-will of tbe tbe lant necessary that of said sum determine tbe to offer for probated purported tbe tbe firm of Etb- ridge, Bromberg $5,000 each; of said John L. McCormick & Jack- testament ; tbe consummated son that Etbridge, compensation cooperation were to said firm without tbe said receive rendered, appellant; appel- and to assistance of lant believed that it for their services rendered that while attorneys appellee, are set a case that should May compromised, opposed accepting contract dated tbe by out and contained be was IS, supra; tbe terms of said tbe amount which tbe settlement was agreed finally stipulated consummated, especially strument was as to tbe attorney’s fee; thereto that amount contended between and that be attorneys tbe other should receive *5 necessary se- prosecute fee, only $10,000; all tbe instead of that probate date instrument cure received one-half of tbe ad- 4, 1911, September will of paid tbe said Jack- as $10.000 ditional fee in said ; compromise attorneys and said bound son and Warne settlement by fee to obligated Etbridge, acting themselves F. M. received for the legal firm law for their services rendered Bromberg, said and to be and certain fee of firm of McCormick& rendered, assuming spect, act, authority in addition to fixed tbe without in that re- $5,000 to be appellant. two $2,500 each, $25,-000, tbe sum of stallments case, Under tbe view we take of this payment being of said sum conditioned tbe assumed, even if it should be as a fact estab duly being probate said will admitted to testimony, lished without conflict in the jurisdiction by court of a final in a was, every from probate application to decree. The was said will standpoint, conceivable over the active presented by before the opposition protest appellant, probate county honorable court of Tarrant not receive one-half of the ad July, 1919, probate and tbe thereof denied. paid, appellant’s right prevail ditional fee judgment attorneys essayed From this appeal increased, in this would not be as his appeal client, an their right necessarily to recover was determined Warne, Forty-Eighth tbe district court adversely judgment him when county, appeal bond, No of Tarrant Tex. county court, refusing probate as the last required by 3699, 1925, article R. C. S. will and testament of said Jackson the instru application pro- filed said Warne. Said September 4, ment of date The became final. bate and testament of said denying instrument offered tbe last will to receive one-half of Jackson was tried the additional fee sued judgment district resulted in a depended upon appellant him and the probate judg- tbe of same. From this him, representing firm associated with appeal an ment of Civil to the Court. having probated appellee, “in said will Appeals Worth, at Fort but on order competent jurisdiction by a decree.” Did the court, refusing a final Supreme Court, equalizing tbe dockets judgment county Appeals, of the Courts of Civil was removed the-day July, 1919, rendered Appeals to tbe Court Civil at San Antonio. said instrument of date April 13, 1921, appeal On was dismissed September 1911, as will the last and testa- grounds per- bad not Jackson, final, and, so, ment of said when? become if appeal judgment bis fected county from tbe tbe tbe through required court to tbe distriót court bond, Appeals appeal decedents, an execution of law, acquired estates of from a county court, regulated therefore the court to district district bad not are jurisdiction following provisions over the of our matter deter- Revised judgment 1925, namely: county court, mined so tbe Court tbe tbe Statutes Civil Article sought provides, “Any from, part person which in consider who therefore aggrieved by any Appeals jurisdic- decision, himself Civil bad no judgment order, county questions For a full court, tion. discussion or of tbe decree by appellant’s presented appeal motion for shall have the district court therefrom county upon appeal, per- complying dismiss tbe chapter.” court, provisions fected from tbe with the 3699, of this district Article provides see 230 S. for the execution of W. which an 222; App. Earl v. .Tex. Civ. 105 S. W. party appealing, fol- appeal bond Mundy (Tex. ever, days How- 227 S'. W. 716. shall, within fifteen “He lows: appeal had been it is where an order, decision, shall decree or such jurisdiction up- duly perfected county so as confer rendered, clerk file with .the have been try cause good the district court and sufficient a sureties, payable or more two bond with county superseded, any judgment county judge Jackson, supra. For county judge, vacated. V. con- amount to fixed appeal, perfected prosecute Warne it was to have shall ditioned that said order, necessary appeal decision, perform an bond he execute to effect provisions of article dis- accordance with decree having done, 3699, supra. no thereon, This not in case shall make trict court cause to the district court. was consummated him.” Article be decided shall supra; Wame v. that, Articles Jack- provides 3699and “When an is taken son, supra. administrator, no bond shall executor or required, appeal .personally unless bearing of the record Under the state him, give case he must concerns judgment, “appeal,” Warne’s 3702,being fol- And bond.” article final after and remained court became shall novo cases be tried de lows: “Such the the same days expiration from the of fifteen governed and shall district although rendered, the district court as procedure rules of civil other if said cause as sumed to and determine hear in said court.” cases court had been application instru duly perfected, was with as the district court will ap offered as the last testament of jursdiction, proper ment out want appli John peal bond, hear determine Warne, Hearing judgment named as executor instrument. cation for date testament of the said the entered of said instrument on this in a resulted September last will- and Jackson; effect as the last said instrument ment said court testa Appeals, of Civil of the Court *6 judgment of said Jackson. From put this 13, 1921, being April to in active attempted appeal rendered, to the district judgment operation, date the as of Warlie county, Tex., of Tarrant ex judgment without the county court, the the of the as of provided bond, by of for ecution article Appeals was the one that Court Civil supra; being assumed, presume, by should have been rendered court. the district meaning that article was executor within the 3700,supra, required therefore not appeal judgment county No from the the by appeal provided bond to execute the for perfected having been court 3699. The fact that said Warne article having final, immediately up- whether become pro was named in instrument for the offered days expiration the of fifteen on date from the of said as the executor instrument and bate day rendered, April, the from 13th or of said the estate make come such executor said being did not 1921, judgment by the date of the rendered executor, him such as he could be Appeals, the effect was of Civil the the. meaning within the said instrument same the one-half supra, on article of the additional fee of probate as admitted to will of the last by appellee in contracted to the event Jackson, taking the oath as such ex * * * finally “said in succeeded ecutor, required article Texas R. O. having probated in said will a court of com- Jackson, supra. Warne, S. Warne v. If jurisdiction petent decree,” a final at for county judgment from the of the position, no time was in after the court instrument county final, decree the court became will and testament of John L. Jack last have secured of said instrument deceased, son, perfected appeal had to the September 4, of date as the last will proper ap the execution of a district court peal bond, pra, of said Jackson. and testament provided article su record, is, This is borne out judgment so from would appeal prosecuted was without the execution superseded, vacated, in fact have been vir necessary appeal bond. On the case provisions 3702, supra, of article tue of the being appealed, urged in docketed the district court as thus appeals provides which under said arti appellant and his co-counsel court, novo shall be tried de the district cle appeal a motion to dismiss to be had the trial district court appeal proper This of a bond. motion place .want if no trial had taken as which the the court from sustained, and if it appeal should have been it would have ty overruled, had prosecuted, as a trial judgment of left the proceeding the coun- review the not de novo is had However, county court, said judgment court final. motion was but to hear and a determine heard, proceed cause without reference such the cause ings. adversely client, appellant’s Kelly Settegast, and from this 68 2 Tex. W. v. S. Moody judgment Levy 870; an W. L. v. & Co. Appeals. 205; Susholtz, Court Civil S. W. Goldstein v. 46 judgment,” right appellant urged Again motion to dismiss its a because the 'have the ground judgment court, county court Warne’s that the district tion, revised jurisdic- proceedings have corrected able certiorari court did not avail- ex- bond had not because to said Warne as executor named instrument, cause from as to remove ecuted so county named there- court, principal beneficiary district court after the Court Appeals no had Civil Court of cause, therefore jurisdiction. Civil had dismissed said years having elapsed two from the date county proceedings is court refus- had résumé This brief ing Jackson, deceased, time, as the last of John at no to demonstrate sufficient instrument offered for the date purpose by position Warne. This of the Court date following based Appeals, possibility articles Re- a was there being “duly probated vised Civil a Statutes viz.: Article instrument of as “Any reads, jurisdiction by decree,” person competent a final inter- ested estate of decedent of said Jackson. or ward and testament proceedings have the Appeals, of Civil of the Court therein revised corrected at ac- in which in Warne years proceedings within two such were irrevocably appellant’s quiesced, terminated had, and not afterward.” Article “An 933: further application for writ of certiorari to the coun- instru- his client’s ty court shall be made to the district September 4, 1911, dis- ment of missal judge or a It shall thereof. name state the party adversely and residence each inter- attending evitable, of its. effect well as distinctly ested, set and.shall er- forth the making judgment. As to of said com- sought proceedings ror in the And article revised.” promise settlement, the terms' “The 934: writ certiorari and its at- of torneys $10,000, received granted upon appli- shall cation of all eases matter did of fact same as party appli- op- prevailing therefor valid not violate entering cant into bond in such portunity prosecute sum as shall further in favor of required judge, probate be sufficient to secure effort to proceeding.” jurisdiction the costs said in- in a court of and testament of as the last will strument said said following For the reasons we although parties to This Jackson. opinion statutory provisions that said good faith be- apply ease, did facts of opportunity ex- still lieved that present brevity the sake of same *7 Therefore, making of said com- the isted. opinion; original (1) holding in in That the any promise respect im- settlement not Jackson, supra, “Appel v. viz.: any rights ap- pair pellant to or invade of the secured places posi lant himself in the anomalous by Hay 15, said of date contract ¡his seeking tion of cause he to dismiss own be upon independent an but rested by give failed an bond from Ethridge Judge F. M. for the use and bene- county Why to the district court. this firm and ad- fit of ditional said as to the his accomplished by is and what is to done be it ap- ap- fee of benefit apparent. favor is not pellee pellant extent of which to the given no record shows that from the bond was ad- received sum as an county to the district fee, which he could have recov- ditional ered, insisting is that the district thereof, part received or jurisdiction cause, had no court will court and it attorney’s fee contract. necessarily follow that if the district opinion are that therefore jurisdiction no had cause judgment is correct and should be trial court’s in county court, denying pro things affirmed. all will, disturbed, bate of is still has Affirmed. effect, in full force and and the dis exactly be missal this cause would what Appellant’s Rehearing. for Motion On seeking appellees are to obtain” —was the n applicable parties law to to the situation rehearing Appellant’s motion for is found- opinion proposition cause were that that held to in main this ed in the court erred in through cause, that, holding judgment be in the dismissal “The that, Appeals of the Court of Civil v. of the Court Jackson final; al., ap- and a final became decree et 230 S. W. denying probate acquiesced, appellant’s pellant instrument offered terminated will of John L. the last being further contract his client’s strument missal appellees in- all the cause of Warne seeking February 4, obtain, of, v. binding upon al. Jackson et were as a dis- thereto as the law was in- (2) attending evitable, their were determined. well effect attorneys’ Judge Ethridge, compensation, by appellant to have establish- for That in order performed by against appellee, agent were acts him as the to recover ed his allege prove associates, him incumbent benefit his (a) binding upon appellant, That therefore facts sufficient to show: would have entitled, the whether the re- so be garded special joint judgment probate partners, or as co or instrument, adventurers, writ of cer- for in instance either their joint. obligations terests and This tiorari facts to have reviewed —(cid:127) appeared holding would have is in which it consonance with the rule proceedings Contracts, or some were void stated that suoh law as in 1 § Williston-on injustice wrong persons prom- estate follows: who substantial “Several are done, (b) That a of John L. Jackson had been isees under a contract be treated as made, thereby together but for the unit and to the of simply become entitled terminating proceedings performance promise. In case instrument, joint promises of finally probated same would have been it would be conceivable joinder require action, as the last will and testa- their in in holding joinder require ment of said This is Jackson. but also to their seizure following any property an- with rule accord of satisfaction of the defendant taken receipt claim; Justice James case nounced Chief or in any performance promisor given Eomax et al. of Comstock v. of without from the litigation. though joint cer- viz.: “The writ of 135 S. W. tiorari each But promisee individually regarded annul en- is not performance a matters is not promise writ to the full titled proceeding joint way promisor in the sense in the same that the is appeal. subjected is on liability, it, Relief revised errors to the entire a only granted produced in such cases when it is made somewhat similar effect im- is void, appear proceeding plying agency prom- that the is or that of each injustice wrong performance some substantial isee or collect on be- estate has been done.” half of those entitled to it.” sec- And Id., is stated: “since each of sev- inspection After of the state careful joint obligees eral i®interested the entire the entire facts, ment ed in both Harper, find fail we discharge power'to he claim has requirements. Duke of such claim either isfaction debt der to release or accord and sat- App. However, if 8 Mo. ; payment and so of the whole affirming in error in obligee discharges it; one a ten- grounds original opin on stated our legally one tender all.” See appellánt’s ion, hearing re nevertheless motion for prom- rule Id. The also section grounds will have refused J., 569, p. 577, O. in section is stated isees as not heretofore discussed. joint cannot be both “Promisees follows: is, persons several; en- must be appellee, his When informe'd jointly only sev- a contract titled under client, Jackson only. possible erally words It is not compromised, to such consented give joinder or severance to covenan- being pursued, arrangement course separately togeth- sue tees the election right to the defeat that would *8 is, jointly severally. er, and It both say his fee, was but the effect thereof cannot, as contract follows from this not be his cause client joint promisees, be treated sev- the determination, judicial to final option.” their eral at only against pursuing appellant course under the appellant’s rights, hold right We therefore his have determined could compromise after the had been made under contingent fee, prosecu the one-half the circumstances, if judgment pro above facts and the litigation to final tion bating the him, were, limited thereafter remained due the last will instrument offered right compensa only receive reasonable his was the of said Jackson and testament condition being unliquidated. ; his then right claim appellant’s mature that would 447, Rosendahl, 133 Minn. 158 Southworth v. that fee. one-half to claim 468; Sup. vol. L. R. R. C. L. W. 3 A. N. legal effect of the con we view As 689; Haas, p. 214 v. Y. Andrewes N. obligations upon, at sued tract 458; & E. A. L. R. Ellwood N. 3 108 joint. rights, torneys, their were as well Iowa, 523; Wilson, 21 Enos al. v. et Lowrie joint paid was a contracted fee The undertaking Keating, Wyo. P. 275 271 v. and the benefit P. attorneys joint associates, were his accord responsible the defense of and satis jointly in the ly As interested faction, think a brief résumé of the mate performing the services for which matter they compensation; to show that on de facts sufficient rial fense were to receive had compromise trial court’s instructions hence, alone the of the of the sustained, Appellant’s adjustment be viz.: litigation would have to Jackson mg good appellee unliquidated; claim was instrument offered liability disputed the the of John Jack- faith testament L. son, contingent employment fee contracted deceased. The full amount of the contract attorneys paid; convey any of said was cashed not cheek did inter- receiving appellant, subject-matter litigation the sum est which interest thereon in the appellant, $4,975. they represent appellee, hold therefore that were to their receiving cashing being only thereon said check a fee so conditions the sum of did $5,000 the sum of of which anwas namely, him, “In said check was tendered pa,id, $25,000payable absolute sum be of-any whatso- full of all demands character on condition that the instrument offered ever Jackson, the estate or will of John the last will of said Jackson should final- deceased, Spiritualists As- ly National probate by compe- admitted to a court of America, sociation the United States jurisdiction. representing appellee, tent said In Warne, president Associa- attorneys subject- determined that Bromberg, Ethridge-McCormick tion, & litigation matter of the was one for com- them,” written in the face promise, they disagreeing only as to the time unwilling accept appellant was check. If negotiations settlement of all the check as full tendered in instituted, and as to the amount that should .named claims negotiations their client. In the growing “conditions,” con- out~of the compromise appellant litigation, Ethridge tingent fee, and settlement made of liti- agencies represent- were the active gation involving probate of the Jackson ing appellee, were unable to recon- duty will, was his to have returned said it disagreement. cile their cashing it; acceptance' of check without rights appellee What have operated re as a full satisfaction of cheek .to produced move or solve situation appellant’s against appellee, up- claim based disagreement pro of its counsel. Further on said fee terminating cedure in the matter of the liti acceptance by appellant, The even un gation by compromise measure was shackled protest, der of less what than was dud disagreement attorneys. claim, good full same of his faith litigation benefit, appellee was-for the disputed, operated recovery as a to a bar counsel, except compen for its as to the Appellant’s the balance sued for. mental at sation counsel were to receive accepted check, titude at the time he having for services rendered agreed by appellee, was there Certainly and to be rendered their client. supported by fore immaterial. This is appellee cannot be said that following rule in 1 stated O. J. 564: “The attorneys so were subservient to those of its erasure or alteration of condition ex that such did not have the to terminate pressed ain check the creditor without disagreement, notwithstanding the ad notice to and assent the debtor justment thereof was indef prevent acceptance constituting its accomplished, inite as to when it Would be satisfaction, accord and if since the cred all, if at and it was uncertain as to how accept itor allowed to it for a differ long existing opportunity then to set purpose allowed, than that ent allow it would be to tle the on terms that had been him to make a contract with defend tentatively accepted by submitted to and interest adverse to knowledge ants without their and consent.” would be avail Jurisprudence, 30, inclusive, 1 Texas 29 to §§ par able. We think that amount had the 34 to inclusive §§ and cases therein right, pre under the situation thus cited; Inge Buford v. Const. Co. Civ. sented, disagreement existing to dissolve the 513; 279 S. W. Franklin Ins. Co. v. attorneys, doing and in' between incur so did-not Villeneuve, App. 356, 25 Tex. Civ. 60 W. S. liability pay attorney fees under the Daugherty 1014; App. 175, Herndon, 27 Tex. employment, contract of but 891; Bergman 65 S. W. Produce Co. *9 attorney ap- fee v. Brown 156 S. W. 1102. pay pellee contracted on ac important will now discuss another compromise count of the settlement effectuat phase presented by disagree- of the case Ethridge (deceased), ed F. M. one of its appellant’s counsel, ment of reference attorneys, accept, opinion appellee whose elected to when and the terms disagree terminated the made, existing attorneys. between its ment as to the under the situa- by appellant’s disagreement. No reason disclosed produced why motion as to entered should Appellant and the law firm of disturbed, things be ruled. said motion inis over- Bromberg generally McCormick & em- ployed purpose representing interest of in the matter Overruled. of secur-