1. Defendant bad a contract with Aitkin county to construct a • drainage ditch at 13 cents per cubic yard. Defendant sublet the contract to plaintiff at 9 and. % cents per cubic yard, and for extra yardage over tbe estimate, 9-¿ cents per yard. Tbe engineer directed plaintiff to perform extra work. Computing tbe excavation at 9-i cents per yard' this amounted to $5,589.68. This work was ordered and done without tbe knowledge of tbe county officials or of defendant. It was then discovered that tbe law forbade tbe county to pay for extra work more than 10 per cent of tbe contract price and the amount of extra work done exceeded that percentage. Defendant received from tbe county for extra work $3,152.93.
*443In a former action between these parties, plaintiff was held, limited in his recovery against defendant to the amount defendant had received from the county, but plaintiff recovered from defendant the full amount defendant had received from the county for extra work, leaving a balance unpaid of $2,436.75.
While that action was pending defendant proposed to plaintiff that they together go to the legislature and ask the passage of an act authorizing payment for the full amount of the extra work done and then ask the county to make payment accordingly. Plaintiff refused and proceeded with his action with the result above stated. Defendant went to the legislature at its session in 1917, and at some expense for attorney’s fees procured the passage of the act desired. The county board, on advice that the act was unconstitutional, refused to pay the claim. On appeal the board was reversed and the full amount of the claim for extra work was allowed, namely, $4,307.13. Defendant received this amount and plaintiff then brought this action to recover his proportion of the amount defendant had received. On a former appeal, Seastrand v. D. A. Foley & Co. 144 Minn. 239, 175 N. W. 117, it was held that such an action will lie.
2f. Defendant now contends that, before plaintiff is entitled to any división of the fund received by defendant, it should be permitted to reimburse itself for the expense incurred by it in defending the original action. The trial court denied defendant this contention. In this we think the court was right. Plaintiff prevailed in the first action and recovered his costs and disbursements. While he failed to recover the full amount of the extra work sued for, we can find no satisfactory basis for holding that the expense of the litigation was an equitable charge against plaintiff.
3. Defendant in its answer claimed that the attorney’s fees incurred by defendant securing the passage of the statute and in recovering the money from the county, amounting to $905.62, should be charged to plaintiff’s share of the fund recovered from the county. Probably there is no basis for the claim that the whole of this expense should be charg'ed against plaintiff’s share. In their brief in this court, this contention is modified and the claim made that this *444expense should be paid out of the common fund and the balance divided in the same proportions as it would have been divided had no expenses been incurred. This is the view of the law taken by the trial court. Plaintiff has not appealed and we therefore affirm this conclusion without further discussion.
We find difficulty, however, in approving the mathematical calculation of the trial court. The court held that plaintiff was entitled to 95/130 of the $4,307.13 recovered by defendant under the act of 1917. This was erroneous. Plaintiff was entitled to receive 95/130 of the amount received for extra work. But he had already received about half of the amount due him for the extra excavation. He had received all of the money paid by the county. Defendant had received none. Clearly then plaintiff was not entitled to 95/130 of the balance still unpaid by the county. The proper fraction, as we view the case, was 2436.75/4307.13. From the amount of $4,307.13 recovered by defendant from the county must be deducted, under the ruling of the court, the expense incurred, amounting to $905.62. The balance must be divided by plaintiff and defendant in the same proportion as they would have shared the $4,307.13 if defendant had incurred no expense; that is, plaintiff should have 2436.75/4307.13 of the amount and defendant 1870.38/4307.13 of the amount.
The rule of law applied by the trial court is affirmed and the case is remanded for computation in accordance with this opinion.
So modified.