delivered the opinion of the Court:
The only question before us is one of fact: Did appellee have notice, either personal or by agent, of appellants’ claim, before he purchased Diggins’s interest in his uncle’s estate ? If he did not, there is no theory upon which appellants can recover. The evidence of appellant Rothschild was offered on the part of appellants to show that, prior to the date of the sale by Diggins to appellee, Diggins was negotiating for a loan on said property through the agency of Walter, and Rothschild was present with Walter and Diggins when these negotiations were being conducted, and that he then notified Walter of appellants’ contract with Diggins and their alleged lien upon the property. Appellant Bendheim testified that, the next day after appellee placed his deed for the property from Diggins of record, he telephoned appellee and asked him if he knew that they (appellants) had a contract with Thomas Diggins and a lien on the property he had purchased for services rendered and money advanced to Dig-gins, and that appellee replied that he knew nothing about it, and that he (Bendheim) would have to see Mr. Walter, his (appellee’s) agent, about it. This conversation appellee denied. He also denied that Walter was his agent at the times mentioned. For some unaccountable reason, neither Diggins, nor Walter, was produced as a witness by either side. It was sought by the above evidence to establish the agency of Walter, and to show that knowledge of the existence of the appellants’ claim had been brought home to appellee through the conversation with Walter. This brings us to the crucial point, the agency of Walter. There was evidence by appellants to the effect that *492Walter visited their office shortly after the alleged conversation between Bendheim and appellee over the telephone, when he assured them that appellee would protect their claim. But this conversation, like the one when the loan to Diggins was under consideration, was not in the presence of appellee, and could not bind him unless the agency of Walter can be established. Again we are impressed with the importance of the evidence Walter could have given had he been produced as a witness. The direct evidence on the point as to Walter’s agency is narrowed down to Bendheim and appellee. There is a direct conflict. The burden rested npon appellants. The court below held that they had failed to discharge that burden. With this conclusion, we agree.
It is contended by counsel for appellants that notice of their claim was imputed to appellee by the terms of the deed from Thomas Diggins to appellee conveying the property in question. The deed contained the following clause:. “All four said pieces and parcels of land and premises being also subject to such decree as may be rendered in equity causes Nos. 24,565 and 24,660, together with all and singular the improvements,” etc. Appellee testified at the hearing that he had never seen the deed until it was produced in court; but that is immaterial, as he constructively accepted the deed, and he is chargeable with notice of its contents. If the recital in the deed was sufficient to give notice of the existence of appellants’ claim, appellee would be chargeable with such notice at the time of the execution and acceptance of the deed. We do not think, however, that the mere reference to the existence of a pending suit is sufficient to charge notice of the existence of a contract for contingent attorneys’ fees for the prosecution thereof.
In the absence of notice to appellee prior to the purchase of the land from Diggins, the recording of the contract in the land records of the- District of Columbia could in no way strengthen the present case. Notice of the existence of appellants’ claim must have been brought home to appellee on or before his purchase of the land in question. Having failed to *493establish that such notice was given, the whole case falls. The judgment is affirmed with costs, and it is so ordered.
Affirmed.