dissenting. My disagreement with the majority opinion goes both to the holding that the contract here is contingent upon the granting of a divorce and also because the fee awarded is not affirmed upon the record before us on quantum meruit. We ordinarily affirm a chancellor’s decree when correct even though it is based on an untenable ground, Martin v. Taylor, 188 Ark. 114, 65 S. W. 2d 4 (1934) and Augusta Cooperage Co. v. Bloch, 153 Ark. 133, 239 S. W. 760 (1922).
Quantum Meruit
The record here shows that at the time the contract was entered into, Mrs. McDearmon had hired and fired the law firm of Bankston and Gladney of Baton Rouge, Louisiana, the law firm of Hodges & Hodges of Newport, Arkansas and had hired and fired appellee, Amos K. Gordon four times.
David Hodges of the firm of Hodges & Hodges testified that when he began representing Mrs. McDearmon, the only property settlement offer from her husband was for $350,000.00.
Mr. Gordon testified that it was impossible to keep track of all the time he spent on the ease, but the records he did keep showed a total of 552 hours.
While the total contract price was $45,000.00, the trial court deducted $15,000.00 for Hodges & Hodges, required Gordon to satisfy a $65,000.00 claim of Bankston & Gladney, allegedly compromised for $5,000.00, and to settle the $1,000.00 claim of Claude Erwin. Thus the actual judgment in favor of Gordon amounts to only $24,000.00. This is a modest allowance for the services performed by Mr. Gordon. The record here shows that he obtained a settlement in excess of $481,000.00, a $131,-000.00 increase over the offer outstanding at the time David Hodges was employed. Even Hodges was not employed until after Mr. Gordon had done substantial work and had been hired and fired four times.
Furthermore, we know that a lawyer’s overhead expenses generally run from 35% to 45% of his gross receipts. Therefore when we consider the 552 hours for which Mr. Gordon kept time, we find that on the basis of a 40-hour week he has worked approximately one-third of a year for an income of $13,200.00 to $15,600.00, and if any time he allowed for nonproductive days and vacation time, he will have worked more than that for Mrs. McDearmon. Two such clients as Mrs. McDearmon in one year would be about all any lawyer could handle. My personal opinion is that the amount of the fee here awarded is most modest when considered from a quantum meruit standpoint under the record before us. In fact the record could support an increased award except for the limitation of the pleadings.
Contingent Fee
The majority opinion in characterizing this contract as contingent on a divorce ignores the fact (1) that a wife can enforce a separation of community property under the laws of Louisiana during coverture and without a divorce; (2) that under the compulsory counterclaim law of Arkansas, Ark. Stat. Ann. § 27-1121 (Repl. 1962), Mrs. McDearmon had to assert her separate property rights in the Jackson County divorce action, brought by her husband, at the time the contract was entered into or be forever barred; and (3) that there is a presumption in favor of the legality of a contract rather than the illegality thereof.
The basic Louisiana Authority for the separation of property by the wife is Article 2425 et seq. of the Louisiana Civil Code. In Gastauer v. Gastauer, 131 La. 2 (1912), where it was shown that the husband had abandoned the matrimonial domicile, the court in allowing a separation of property during coverture said:
“The right of a wife to demand a separation of property is not dependent upon the actual possession by her of separate property, or upon the existence of any claim against her husband for the reimbursement of paraphernal funds. It is enough that she show that the habits and circumstances of her husband render such separation necessary in order to enable her to preserve for her family the earning that she may derive from her separate industry and talent; ...”
See also Daggett, The Wife’s Action for a Separation of Property, 5 Tul. L. Rev. 55 (1930), and Morrow, Matrimonial Property Law in Louisiana, 34 Tul. L. Rev. 3, 32 (1959), § 7, Admissibility of Actions Between Husband and Wife During Subsistence of Marriage.
The facts here show that at the time the contract was entered into, the husband’s action for divorce was pending in the Jackson County Chancery Court, and that David Hodges, whom Mrs. McDearmon had recently fired, had entered her appearance therein. Therefore under our compulsory counterclaim law, Ark. Stat. Ann. § 27-1121, Mrs. McDearmon was forced to file and pursue a counterclaim therein for. any property rights she might wish to obtain, including any individual personal property which her husband might have in his possession, such as negotiable notes, or for the purpose of declaring a resulting trust. Consequently any contract for legal services to be rendered for her would have to contemplate some action being pursued in the divorce action or all of her rights would be lost.
Furthermore, in Stroud v. Pulaski County Special School District, 244 Ark. 161, 424 S. W. 2d 141 (1968), we pointed out that the law will not presume that the parties to a contract intended an illegal act. It is pointed out in 17 Am. Jur. 2d Contracts % 238 that there is a presumption in favor of the legality of a contract unless the illegality appears upon its face.
I can find nothing on the face of the contract, set forth in the majority opinion, that shows that payment of the fee was contingent upon the granting of a divorce. Neither is there any testimony showing that payment thereof was contingent on the granting of the divorce. From the contract and the testimony, the only evidence is that Gordon was employed only to obtain a separation of the community property acquired under the laws of Louisiana.
Thus when we give credence to the presumption and that our law compelled the wife and her counsel to pursue any legal remedy for a separation of her property in the divorce action, I think we are doing an injustice to the patient counsel who continued to represent Mrs. McDearmon after being fired so many times by suggesting that he by his contract was preventing a reconciliation cf the parties or was encouraging the granting of a divorce.
Fogleman, J., joins in this dissent.