(dissenting) .
I respectfully dissent to the majority opinion for the reason that, in my view, it denies the defendant the opportunity of proving a valid defense.
This was an action to collect, in full, fees for professional services. In order to recover, plaintiffs, as in any other action on contract, had to prove the existence of the contract, its terms, and at least substantial performance of the contract. One of the defenses that may be available in such an action is that the work done fails to be even substantial performance of the terms of the contract sued upon.
The defendant in this case alleged in her pleading that plaintiffs’ services rendered were not in accord with the terms of the contract, if such be established, and were *580actually a disservice, to the detriment of deceased’s estate.
The trial court and the majority opinion denies the defendant the right to prove a legal defense to this action on a contract.
That this denial of such a basic right adversely affects the defendant is shown by plaintiffs’ evidence.
That evidence shows that plaintiffs, during all of the time of this transaction knew that R. B. Warren, (Sr.) and Victoria Warren, jointly contributed capital and efforts in their business. Such efforts resulted in the acquisition of all of the properties involved herein.
The evidence further shows that in 1950 R. B. Warren, (Sr.) and Victoria Warren entered into a written agreement for a division of these properties, which provided that the “Third and Cincinnati Streets” property was to be Victoria Warren’s separate property. It is immaterial whether the deed to this property was ever legally delivered or. not. Plaintiffs, presumably as part of their services charged for, prepared an agreement identical to the written agreement executed in 1950. These agreements recognized that this “Third and Cincinnati Street” property was. the separate property of Victoria Warren, and therefore not a part of the estate of R. B. Warren (Sr.).
Plaintiff proved to the satisfaction of the trial court the existence of a contract. Such court also determined that the instructions of R. B. Warren (Sr.) to plaintiff were: “To divide my estate 50-50 between Robert B. Warren, Jr. and Victoria Warren.”
What did the estate of R. B. Warren (Sr.) include? Surely there should not be included in that estate the separate property of Victoria Warren, even though bare legal title may have been in the deceased’s name. If, as plaintiffs’ own evidence (documents prepared by them and introduced in this case) shows, the “Third and Cincinnati Streets” property was Victoria Warren’s by reason of her contribution of capital and work, the estate of her husband consisted only of the remaining seven or eight properties involved and the various monies on deposit.
Plaintiffs’ own evidence (documents prepared by them) shows that upon Mr. Warren’s death all of his estate went to Robert B. Warren, Jr.
Plaintiffs’ evidence further shows that plaintiff regularly represented and was retained by Robert B. Warren, Jr., in his business. The instructions of Mr. Warren (Sr.), to plaintiffs were to “divide the estate 50-50”. All of that estate, as a result of plaintiffs’ services, went to Robert B. Warren, Jr. Which client were plaintiffs representing?
In an action on a contract, evidence conforming to the pleadings and the issues raised thereby, and only such evidence, is admissible on behalf of plaintiff or defendant. 17 C.J.S. Contracts § 567, page 1200.
In Miller v. Young, 197 Okl. 503, 172 P. 2d 994, we said:
“It is a general rule of law that a contract must be performed according to the terms of the agreement before a party can have any right of action. Messick v. Johnson, 167 Okl. 463, 30 P. 2d 176.”
As above indicated, I therefore respectfully dissent.
I am authorized to state that Justice BERRY concurs with the views herein expressed.