On Appellant’s Motion for Rehearing.
■ Appellant’s motion for rehearing is founded in the main upon the proposition that this court erred in holding that, “The judgment of the Court of Civil Appeals in Warne v. Jackson et al., 230 S. W. 242, in which appellant acquiesced, terminated appellant’s contract of employment to further prosecute his client’s application to probate said instrument of, date February 4, 1911, as a dismissal of said appeal by said court was inevitable, as well as the attending effect of its judgment,” because the right to 'have the judgment of the county court revised and corrected by certiorari proceedings was available to said Warne as executor named in said instrument, and to appellee named therein as principal beneficiary after the Court of Civil Appeals had dismissed said cause, two years not having elapsed from the date of the judgment of the county court refusing to probate as the last will of John L. Jackson, deceased, the instrument offered for that purpose by said Warne. This position is based on the following articles of the Revised Civil Statutes of 1925, viz.: Article 932, which in part reads, “Any person interested in the estate of a decedent or ward may have the proceedings of the county court therein revised and corrected at any time within two years after such proceedings were had, and not afterward.” Article 933: “An application for writ of certiorari to the county court shall be made to the district court, or a judge thereof. It shall state the name and residence of each party adversely interested, and.shall distinctly set forth the error in the proceedings sought to be revised.” And article 934: “The writ of certiorari shall in all eases be granted upon the application of a party therefor upon the applicant entering into bond in such sum as shall be required by the judge, sufficient to secure the costs of the proceeding.”
For the following reasons we were of the opinion that said statutory provisions did not apply to the facts of this ease, and for the sake of brevity did not present same in the original opinion; (1) That the holding in Warne v. Jackson, supra, viz.: “Appellant places himself in the anomalous position of seeking to dismiss ¡his own appeal because he failed to give an appeal bond from the county to the district court. Why this is done and what is to be accomplished by it in favor of appellant is not apparent. The record shows that no appeal bond was given from the county court to the district court, and appellant is insisting that the district court had no jurisdiction of the cause, and it will necessarily follow that if the district court had no jurisdiction of the cause the judgment of the county court, denying probate of the will, has not been disturbed, and is still in full force and effect, and the dismissal of this cause would be exactly what appellees are seeking to obtain” — was the law applicable to the situation the parties to that cause were by that opinion held to be in through the dismissal of said cause, in that, said judgment of the Court of Civil Appeals became final; and a final decree denying probate of the instrument offered as the last will of John L. Jackson, deceased, being all the appellees in the cause of Warne v. Jackson et al. were seeking to obtain, was binding upon the parties thereto as the law by which their rights were determined. (2) *896That in order for appellant to have established his right to recover against appellee, it was incumbent upon him to allege and prove facts sufficient to show: (a) That appellee would have been entitled, as against the judgment of the county court refusing to probate said instrument, to the writ of cer-tiorari to have reviewed said judgment — • facts from which it would have appeared that suoh proceedings were void or that some substantial wrong and injustice to the estate of John L. Jackson had been done, (b) That but for the compromise settlement made, terminating the proceedings for the probate of said instrument, same would have been finally probated as the last will and testament of said Jackson. This holding is in accord with the following rule of law announced by Chief Justice James in the case of Comstock v. Eomax et al. (Tex. Civ. App.) 135 S. W. 185, 186, viz.: “The writ of cer-tiorari to annul proceedings of the county court in probate matters is not a writ of right in the sense that the proceeding will be revised for errors as on appeal. Relief is only granted in such cases when it is made to appear that the proceeding is void, or that some substantial wrong and injustice to the estate has been done.”
After a careful inspection of the statement of facts, we find that appellant failed in both of such requirements. Duke v. Harper, 8 Mo. App. 296. However, if we should be in error in affirming the judgment on the grounds stated in our original opinion, nevertheless appellánt’s motion for rehearing will have to be refused on grounds not heretofore discussed.
When appellant informe'd appellee, his client, that the Jackson litigation should be compromised, he thereby consented to such course being pursued, and to an arrangement that would defeat his right to the contingent fee, as the effect thereof was but to say to his client that his cause should not be prosecuted to final judicial determination, which was against pursuing the only course under which appellant could have determined his right to one-half of the contingent fee, as the prosecution of the litigation to final judgment probating the instrument offered as the last will and testament of said Jackson was the only condition that would mature appellant’s right to claim one-half of that fee.
As we view the legal effect of the contract sued upon, the obligations of the attorneys, as well as their rights, were joint. The fee contracted to be paid was a joint undertaking for the benefit of appellant and his associates, and the attorneys were jointly interested and jointly responsible in the matter of performing the services for which they had been employed and were to receive compensation; hence, the compromise of the Jackson litigation and the adjustment of the attorneys’ compensation, by Judge Ethridge, were acts performed by him as the agent of and for the benefit of his associates, and therefore binding upon appellant, and this whether the attorneys so employed be regarded as special partners, or as co or joint adventurers, for in either instance their interests and obligations were joint. This holding is in consonance with the rule of law stated in 1 Williston-on Contracts, § 316, as follows: “Several persons who are prom-isees under a contract may be treated as a unit and thereby together become entitled to the performance of the promise. In case of joint promises it would be conceivable not simply to require their joinder in the action, but also to require their joinder in the seizure of any property of the defendant taken in satisfaction of the claim; or in the receipt of any performance from the promisor given without litigation. But though each joint promisee is not regarded as individually entitled to the full performance of the promise in the same way that the joint promisor is subjected to the entire liability, for it, a somewhat similar effect is produced by implying an agency on the part of each prom-isee to receive or collect performance on behalf of all those entitled to it.” And by section 343, Id., it is stated: “since each of several joint obligees i® interested in the entire claim he has power'to discharge the entire claim either by release or by accord and satisfaction ; and so a payment of the whole debt to one obligee discharges it; and a tender to one is legally a tender to all.” See also section 325, Id. The rule as to prom-isees is stated in section 569, p. 577, O. J., as follows: “Promisees cannot be both joint and several; that is, persons must be entitled under a contract jointly only or severally only. It is not possible by any words of joinder or severance to give the covenan-tees the election to sue separately or together, that is, both jointly and severally. It follows from this that a contract cannot, as to the promisees, be treated as joint or several at their option.”
We hold therefore that appellant’s rights, after the compromise had been made under the above facts and circumstances, if any thereafter remained due him, were, limited to his right to receive reasonable compensation ; his claim then being unliquidated. Southworth v. Rosendahl, 133 Minn. 447, 158 N. W. 717, 3 A. L. R. 468; R. C. L. Sup. vol. 1, p. 689; Andrewes v. Haas, 214 N. Y. 255, 108 N. E. 423, 3 A. L. R. 458; Ellwood & Lowrie v. Wilson, 21 Iowa, 523; Enos et al. v. Keating, 39 Wyo. 217, 271 P. 11, 12, 275 P. 131.
As to the defense of accord and satisfaction, we think a brief résumé of the material facts sufficient to show that on that defense alone the trial court’s instructions would have to be sustained, viz.: Appellant’s *897claim was unliquidated; appellee in good faith disputed liability to appellant for the full amount of the contingent fee contracted to be paid; that said cheek was cashed by appellant, he receiving thereon the sum of $4,975. We hold therefore that appellant, in cashing said check and receiving thereon the sum of $4,975, did so upon the conditions said check was tendered to him, namely, “In full of all demands of-any character whatsoever against the estate or will of John L. Jackson, deceased, National Spiritualists Association of the United States of America, George B. Warne, president of said Association, and Ethridge-McCormick & Bromberg, or any of them,” written in the face of said check. If appellant was unwilling to accept the check as tendered in full settlement of all his claims against the parties .named in said “conditions,” growing out~of the $25,000 contingent fee, and settlement made of the litigation involving the probate of the Jackson will, it was his duty to have returned said check without cashing it; the acceptance' of said cheek operated as a full satisfaction of appellant’s claim against appellee, based upon said contingent fee of $25,0001
The acceptance by appellant, even under protest, of less than what was dud in full of his claim, same being in good faith disputed, operated as a bar to a recovery of the balance sued for. Appellant’s mental attitude at the time he accepted the check, not having been agreed to by appellee, was therefore immaterial. This is supported by the following rule stated in 1 O. J. 564: “The erasure or alteration of the condition expressed in a check by the creditor without notice to and assent by the debtor will not prevent its acceptance from constituting an accord and satisfaction, since if the creditor were allowed to accept it for a different purpose than that allowed, it would be to allow him to make a contract with defendants without their knowledge and consent.” 1 Texas Jurisprudence, §§ 29 to 30, inclusive, and §§ 34 to 38, inclusive and cases therein cited; Buford v. Inge Const. Co. (Tex. Civ. App.) 279 S. W. 513; Franklin Ins. Co. v. Villeneuve, 25 Tex. Civ. App. 356, 60 S. W. 1014; Daugherty v. Herndon, 27 Tex. Civ. App. 175, 65 S. W. 891; Bergman Produce Co. v. Brown (Tex. Civ. App.) 156 S. W. 1102.
We will now discuss another important phase of the case presented by the disagreement of appellant’s counsel, in reference to the time when and the terms upon which a compromise of the litigation should be made, as to the rights of appellee under the situation produced by such disagreement.
Appellant and the law firm of Ethridge, McCormick & Bromberg were generally employed for the purpose of representing the interest of appellee in the matter of secur-mg the probate of the instrument offered as the last will and testament of John L. Jackson, deceased. The contract of employment of said attorneys did not convey any interest in the subject-matter of the litigation in which they were to represent appellee, their interest being only the right to receive a fee in the sum of $30,000, of which $5,000 was an absolute sum to be pa,id, and $25,000 payable on condition that the instrument offered as the last will of said Jackson should be finally admitted to probate by a court of competent jurisdiction. In representing appellee, said attorneys determined that the subject-matter of the litigation was one for compromise, they disagreeing only as to the time when negotiations to compromise should be instituted, and as to the amount that should be paid their client. In the negotiations to compromise the litigation, said Ethridge and appellant were the active agencies representing appellee, and they were unable to reconcile their disagreement.
What rights did appellee have .to remove or solve the situation produced by the disagreement of its counsel. Further procedure in the matter of terminating the litigation by compromise measure was shackled by the disagreement of said attorneys. The litigation was-for the benefit, of appellee and not for its counsel, except as to the compensation counsel were to receive under the contract of employment for services rendered and to be rendered their client. Certainly it cannot be said that the rights of appellee were so subservient to those of its attorneys that it did not have the right to terminate such disagreement, notwithstanding the adjustment thereof by the attorneys was indefinite as to when it Would be accomplished, if at all, and it was uncertain as to how long the then existing opportunity to settle the litigation on terms that had been submitted to and tentatively accepted by the interest adverse to appellee would be available. We think that appellee had the paramount right, under the situation thus presented, to dissolve the disagreement existing between its attorneys, and in' doing so did- not incur liability to pay attorney fees under the contract of employment, but only to pay the additional attorney fee of $10,000 that ap-pellee contracted to pay and did pay on account of the compromise settlement effectuated by F. M. Ethridge (deceased), one of its attorneys, whose opinion appellee elected to accept, and thereby terminated the disagreement existing between its attorneys.
No reason being disclosed by appellant’s motion as to why the judgment entered should be disturbed, said motion is in all things overruled.
Overruled.