ON MOTION FOR RE-HEAEINO.
MR. JUSTICE MILBURNdelivered the opinion of the Court.
The respondent’s counsel prays for a. re-hearing and for ground of the prayer says that this Court in its opinion held *224that, regardless of the question of morals involved, the allegations of the replication, stricken out by the lower court, should be by it heard and determined. Counsel states that this ques^ tion was not raised in the briefs or argument upon final hearing, that the only question raised and argued was whether or not the alleged contract for compensation was against public policy, and that “the effect of the contract upon the right of the defendant to recover upon a quantum meruit * * * was not .discussed, and this matter has never been presented in a formal way to this Court.” Respondent’s counsel in his brief, speaking of the alleged error of the district court in striking out the certain parts of the replication, uses this language: “Strangely enough, and as if in the best of faith, the plaintiff in his replication admits that the fee was allowed by the court upon the foreclosure of the mortgages, but although the plaintiff has had the advantage of the allowance, he comes forth h> assert that the fee so allowed was in excess of the reasonable value of the services.” Counsel seems to be in error as to whether or not the question of quantum meruit was raised or considered in the briefs.
We did not overlook the difference between a contract i» do an immoral act and a contract to do a legal act, the agreement as to the consideration being void and leaving the creditor to recover on a quantum meruit.
The admission of the plaintiff in his replication as to the allowance by the court and the reasonable value of the services rendered was not made by the plaintiff, but was the result of the court’s action on motion to strike out the language of the replication. It is hardly permissible for a party to' move the court to strike out part of a sentence or paragraph and then charge the pleader with meaning to say what the part remaining in the pleading declares, whereas the remainder of the sentence or paragraph depends for its real meaning and intendment upon the part stricken out.
The effect of the striking out of the parts of the replication as to the $1,500 matter was to make the plaintiff confess the-*225cause of action in the sum of $1,500 on a quantum meruit. Practically the same remarks apply to the action of the court in striking out the parts of the replication referring to the other counterclaim for $500.
The effect of the pleading, as to the matters, before striking out was, it is true, to admit the services as having been rendered, but also to set up circumstances from which the .court and jury might determine that the agreement as to the compensation was immoral and that $750 and $250, respectively, had been actually paid therefor, or that the services were worth only $750 and $250, respectively, which sums had been severally paid.
The parts stricken out included, in effect, the declaration that $1,000 had been paid to the defendant in full for the said services, and that this was part of the $2,000 which defendant admitted had been paid on the note. This, certainly, plaintiff had the right to allege whether the counterclaim was on a quantum meruit or express contract. It was not intended that anything in the opinion should be construed to mean that, if the services were legally rendered, they should not be recompensed in a reasonable sum if the agreement to. pay a fixed compensation was void, but if the alleged contract to- pay a fixed sum was immoral and had been executed as claimed, the plaintiff had a right to so allege and prove.
The statement contained in the said opinion that the plaintiff had the right to tell the facts to the court and jury in any way that the matter of the said contract for professional services might be considered, is withdrawn, as meaning more than the Court intended to say.
The motion for re-hearing is denied.
Motion denied.