delivered the opinion of this court.
This suit was brought by the appellants, to recover from the appellee three-fourths of the commissions, awarded to him as trustee for the sale of the real estate of John Folck deceased. The declaration contains only the common money counts, and an insimul computassent; and the defendant pleaded the general issue.
To support the action the plaintiff offered in evidence the following agreement, which was admitted to have been executed by the defendant:
“Cumberland, June 14th, 1841.
“Messrs. Daniel aud John Folck, have this day requested me to file a bill in Allegany county court as a court of equity, for *89the sale of the real estate of their father, and I have agreed to do the same, and to obtain a decree for the sale of the same-; 'with the understanding that I shall be appointed trustee to make said sale, with the further understanding and agreement, that after the sale is made, I will retain in my hands only one-fourth of the usual commissions allowed in such cases, and will pay over to the said John and Daniel Folck, the remaining three-fourths of the commissions awarded to me by Allegany county court, fox making said sale. Í further agree to attend to the business of the personal estate of John Folck, (deceased,) for the said Daniel and John Folclr, as the administrators of said estate, without any additional charge, besides the one-fourth of the commissions arising from the sale of the real estate aforesaid. James Smith.”
The proof in the cause and the admissions of the parties, show that the plaintiffs were the sons, and two oF the heirs at law, of John Folck deceased, and were also the administrators rtf his personal estate. The defendant was at the time a member of the bar of Allegany county court, and it -was and liad been for some time the practice of said court in passing a decree for the sale of real estate, to appoint the solicitor who filed the bill a trustee to make such sale; unless objection was made to the appointment of such solicitor, or some other person was recommended by those in interest, ft further appears, that the defendant filed the bill, conducted all the proceedings in the chancery cause, procured the decree for the sale of the land, and was by the decree appointed trustee to sell the same; that he sold the property under the decree, and was allowed for his commissions the sum of $634.,20. It appears also that he acted as attorney and solicitor for the plaintiffs, as administrators; and that he was not to receive, and did not receive, any compensation from the plaintiffs, or from any other person,, for any of his services, other than is provided in the said agreement of the Mill June 1841.
Upon this state of facts, the plaintiffs and defendant eac|t •offered a prayer to the circuit court, the latter was granted and he former refused; and ihe verdict and judgment being ig *90favor of the defendant, this appeal was prosecuted by the plaintiffs.
The defendants’ prayer, which was granted by the circuit court, asserted the proposition, “that there was no sufficient consideration, shown by the evidence in the case, to support the agreement,” and in this ruling we entirely concur:
The claim of the appellants is to recover three-fourths of the amount awarded to the defendant, for his commissions as trustee under the decree in chancery; and the only consideration in support of the contract, which was relied on by the appellants in the argument, is the employment of the defendant by the plaintiffs, as their attorney and solicitor; and it has been argued that this is a sufficient consideration, upon the principle recognized in a class of decisions of which Coggs vs. Bernard is the leading case. That principle is succinctly stated by Smith, in his notes to Coggs vs. Bernard, to be, that “the confidence induced by undertaking any service for another, is a sufficient legal consideration to create a duty in the performance of it.” (1 Smith’s Beading Cases, 96, note.)
. The answer to this argument is, that here the suit is not brought to recover for any neglect or malfeasance by the defendant, in the discharge of his duty as solicitor; but to recover from him a sum of money, which, it is alleged, he agreed to pay the plaintiffs, in consideration for the plaintiffs having engaged him, without fee or compensation, to undertake a service for them. It is sufficient to state the proposition, to demonstrate that such a contract is nudum pactum. But, in the construction which we put upon this contract, it is clear that the real and only consideration stated therein, for the agreement of the defendant to pay the plaintiffs' three-fourths of the commissions, was “'the understanding,” that he should be appointed trustee for the sale of the land. It is unnecessary for this court to consider the objection to enforcing such a contract on the ground of public policy, which was urged by the appellee; because, we are of opinion, that the other objection, based oa the want of consideration, is fatal to the claim of the appellants. They had no vested right, to be trustees, nor any power of appointing a trustee, such appointment being *91made by the court. And as the appointment of Smith was no damage to them, or forbearance or suspension of any right which they had, there is no consideration whatever for the support of the contract, and it cannot be enforced.
(Decided February 24th, 1859.)Judgment affirmed,