(dissenting). I dissent from the opinion of the majority for the following reasons; The suit was to recover attorney fees upon an expres.s contract. We are not concerned with what tlie jury found, but as to whether the defendant below was entitled to a directed verdict in his favor. The services which were agreed to be performed by the plaintiffs were not performed. It is true their nonperformance was not the fault of plaintiffs, but they agreed to perform the same, subject to the right of the defendant to discontinue the litigation at any time. This right was not subject to any condition that plaintiffs might impose; therefore the remark of defendant that the fee would be paid was unsupported by any consideration and futile to support a verdict for plaintiffs. The result reached by the majority would make the employment of counsel a hazardous proceeding indeed.