December 4, 1943, Seigle Coleman died testate. By will he bequeathed $5,000 to Wilbur Coleman and $500 each to certain nieces and nephews, and the remainder of his estate to certain charitable organizations. The will was later offered and admitted to probate. Thereafter, two of the three surviving nephews, Seigle Finley and William Finley, entered into a contract with respondent Felton by which they agreed to pay Felton one-half of all benefits which might be obtained by virtue of a contest of the will. One nephew, Orval Finley, and three nieces, Ida Davis, Nan Holder and Rose Finley Nichles, refused to sign identical contracts or to have anything to do with the contest or the employment of respondent. Then followed a contest of the will in the probate court. That court held the will to be validly executed, but held the clauses attempting to bequeath and devise part of the property to different institutions were void because the institutions were charitable and the will be had been executed less than thirty days prior to the decease of Seigle Coleman. An appeal was taken to the district court. The court decreed the will was a valid and properly executed; that the clauses attempting to devise the property charitable organizations were void; that the will should be enforced as to the specific bequests other than those to the charitable institutions, and the balance of the property should be distributed to the heirs of Seigle Coleman; that inasmuch as Seigle Coleman had left no father, mother, wife brothers or sisters, the property should be distributed in equal parts to the heirs of the deceased brothers and sisters, who are nephews and nieces of Seigle Coleman, deceased. Upon appeal (In re Coleman's Estate, 66 Idaho 567, 163 P.2d 847, decided November 21, 1945) the district court was affirmed.
Thereafter, to-wit, February 9, 1946, respondent filed in the probate court of Latah county in the Matter of the Estate of Seigle Coleman, deceased, a notice and claim of "lien upon the distributive shares of such persons [appellants and Orval and William Finely] as heirs of the late Seigle Coleman." And on said last mentioned day decree was rendered and entered in said mater whereby it was adjudged and decreed, among other things, that respondent had a lien for attorney fees upon the distributive shares of appellants from which appellants appealed to the district court of *Page 387 Latah county March 9, 1946. While the said appeal was still pending in said district court, and before it had been disposed of, a written stipulation was entered into between respondent and counsel for appellants, that the question involved in such appeal was "whether or not J.H. Felton [respondent] had a lien" on the distributive shares of appellants, "and, if so, the amount thereof, and no other issue." For the purpose of having that question determined without delay it was further stipulated that an independent action be brought by respondent, the parties agreeing upon the exact form and substance of both the complaint and answer in such action, a copy of each being attached to the stipulation.
The complaint and answer were later filed pursuant to such stipulation and the cause tried June 12, 1947. After the trial, but before findings were made, the parties mutually agreed appellants, respectively, might then be paid the benefits arising from the contest of the will without waiting for the outcome of the controversy between respondent and appellants. The trial court then found and held the acceptance of such benefits created an implied contract to pay respondent attorney fees.
It is urged in the case at bar that where one permits another to perform services for him, the law raises an implied promise to pay the reasonable value of the services. But respondent does not bring himself within the rule. Here, appellants, notwithstanding several efforts were made to induce them to employ respondent, refused to do so. It is true respondent performed services in contesting the will, but the services were performed for "S.P. Finley [Seigle]" and William Finley under the terms of a written contract. He was thus obligated to perform all the services he performed. He could not repudiate his solemn contract without committing a breach. Nor was respondent expected by those who thus employed him to perform such or any services gratuitously. The contract which respondent himself drew provided for the payment of the compensation which he thought his services were worth. The benefits which came to appellants were the result of the performance of the terms of the written contract entered into by respondent with Seigle and William Finley, not the result of any contract with appellants, because they refused to employ him. And, further, the services respondent performed in contesting the will were performed with knowledge appellants would not employ him. In fact, appellants were opposed to the contest and would not, and did not, have anything to do with it. No case has been cited and none can be found holding an implied promise or implied contract to pay for services under such facts and circumstances. Nor does Morning Star Mining Co. v. Williams, 171 Ark. 187, 283 S.W. 354, hold that a set of facts such as above stated creates an implied contract of employment. It is true that was a case to recover attorney fees on an implied contract to pay. But in that case it appears *Page 388 Williams, an attorney, accepted employment in good faith to prosecute a suit to remove a cloud upon the title to certain real property, believing that one Chase was authorized to employ him. Chase had previously employed him for the Morning Star Mining Company and the Company had regularly paid the fees. No Such showing was made in the case at bar. Appellants never had employed respondent. Not only that, they refused to employ him and, further, they never conferred with him or encouraged him to contest the will. It is at once apparent the Morning Star case, supra, is not in point.
But it is argued the acceptance of accruing benefits created an implied contract to pay respondent. In resolving that question the above stated facts of this case should be kept in mind. The courts are unanimous in holding an acceptance of benefits does not create an implied contract to pay.
In O'Doherty Yonts et al. v. Bickel et al., 166 Ky. 708,179 S.W. 848, Ann.Cas. 1917A, 419, a case quite similar in its facts to the case at bar, the court held:
"As a general, rule, an attorney cannot recover fees for his services from one who has not employed him or authorized his employment, although the services may have been beneficial to such person."
To the same effect: Rives et al. v. Patty et al., 74 Miss. 381,384, 20 So. 862, 60 Am. St.Rep. 510; Pepper v. Pepper, 98 S.W. 1039, 30 Ky. Law Rep. 460; In re Faling's Estate, 113 Or. 6,228 P. 821 231 P. 148.
The judgment should be reversed and the cause remanded with directions to dismiss the action.
SUTPHEN, District Judge, concurs in this dissenting opinion.
On Rehearing