Opinion by
Mr. Justice Moschzisker,
Edward McCall, a citizen of the United States, residing at Lima, Peru, was a member of the international [383]*383banking firm of Alsop & Co., a Chilean concern; he died at his South American home in 1874. Alsop & Co. went into liquidation, and, in 1876, John Wheelwright, its liquidator, looking towards the collection of a debt due by Bolivia to the Alsop firm, made a contract with that country; but war ensued between Chile and Bolivia, and acts of the former prevented payment by the latter. In 1885, Wheelwright contracted with George S. Bout-well, Esq., to represent “him” and “said firm” in the prosecution of the claim of Alsop & Co. against Chile and Bolivia; he agreed to pay, as counsel fees, a stipulated percentage upon the amount “recovered for me or said firm,” and an effort to have part of these fees charged against the American heirs of Edward McCall gave rise to the present litigation.
Nathaniel A. Prentiss, Esq., became associated with Boutwell, they together representing Alsop & Co., or its liquidator; Wheelwright died and Henry S. Prevost succeeded him in office. Thereafter, in 1893, the United States of America and Chile created a joint commission for the consideration of claims of the citizens of each country against the other country, but the life of this body expired before it took action on the Alsop claim; in 1900, the commission was revived, and Messrs. Bout-well and Prentiss again presented that demand, but it was rejected because Alsop & Co. was “a Chilean juridical person,” and, possessing such nationality, its rights as a claimant against Chile were not comprehended by the terms of the submission, which in this respect embraced only corporations, companies, or individuals, citizens of the United States.
Prevost died in 1904, and no succeeding liquidator was appointed. Subsequently a treaty of peace was entered into between Chile and Bolivia, whereby the former appropriated a considerable sum of money to pay several specified demands against the latter, including that of Alsop & Co.
In the meantime, the Alsop claim was being pressed [384]*384¡upon the attention of the American State Department, not only by Messrs. Boutwell and Prentiss, but by other —independent—counsel representing the estate of Anne McCall, who had succeeded to the interest of Edward McCall, deceased; and, eventually, the whole matter was submitted to King Edward VII of England, for arbitration, a protocol to that end having been concluded December, 1909, by the United States and Chile.
On the death of King Edward his place was taken by George V. This time, however, although one of the partners still lived, the demand was not presented, as before, on behalf of the Alsop firm, or of its surviving member, but was made for the several individual partners, nominatim, including Edward McCall, their “heirs, assigns, representatives and devisees.” In other words, instead of putting the claim in for a Chilean entity, it was entered on behalf of certain designated American citizens.
King George made an award, in 1911, favoring the American claimants, and shortly thereafter Chile paid the amount involved to the United States government, which created a national fund for distribution by the Department of State.
There had been eleven terms, or periods, during the course of the career of Alsop & Co., each term representing a renewal of the partnership and, often, a change in the personnel of the firm. On August 16, 1912, Secretary Knox formulated an order awarding the fund on hand to the estates of the partners of Term No. 9 — among others, the estate of Edward McCall, deceased; but, immediately after this, the attorneys for George McCall, executor of Anne McCall, convinced the secretary (by proofs showing the devolution of title from Edward McCall to his sister Anne, and that the former’s estate had long since been administered and distributed) that the McCall award should be paid to the executor of Anne McCall. George McCall filed a bond, as executor, and the secretary of state issued a certificate in his favor; where[385]*385upon so much of the fund as had originally been ordered to be paid the estate of Edward McCall was given to the executor of Anne McCall.
The secretary of state, in making his award, held that, under the Act of Congress of February 27, 1896 (29 Statutes at Large 32), he could recognize only the primary claimants to the fund and lacked jurisdiction to consider derivative claims, such as the one for counsel fees here involved, presented by Nathaniel A. Prentiss, Esq., on behalf of‘himself and George S. Boutwell, then deceased; but the secretary expressly said that this was “without prejudice to such proceedings, if any, as those making the claim may see fit to bring in the appropriate tribunals for the enforcement of the rights of which they, may consider themselves possessed.”
George McCall filed an account as executor of Anne McCall, deceased, charging himself with the money received from the United States government, and claiming certain credits, with which we are not now concerned. Shortly thereafter Nathaniel A. Prentiss died, and N. A. McCarthy, as ancillary administrator of both Boutwell and Prentiss, brought forward the claim of his decedents for counsel fees, which he alleged to be due them by the McCall estates, for services rendered under the original contract with the liquidator of Alsop & Co.
The court below decided to hear and adjudge the claim at the audit of the executor’s account, in the Anne McCall estate, and no question of jurisdiction is now raised in that regard, although the Commercial Trust Co., as ancillary administrator d. b. n. c. t. a. of the estate of Edward McCall, appears as an appellant; but appellant McCarthy, representing the estates of Messrs. Boutwell and Prentiss, contends that the court erred in refusing to allow the counsel fees asked for his decedents.
It appears that Prevost, when he succeeded Wheelwright as liquidator of Alsop & Co., confirmed the agreement retaining Boutwell and Prentiss as attorneys, but, [386]*386after the decease of Prevost, in 1904, these attorneys were not retained by anyone representing either the estates of Edward or Anne McCall. In this connection, the auditing judge (Gest) properly says: “When the protocol of submission was made between Chile and the United States, by which the determination of the amounts equitably due to the individual partners of Alsop & Co. was referred to King Edward VII, the case assumed a radically different position, and the estates of Boutwell and Prentiss, in order to maintain their claim against the estate of Edward McCall, should show some contractual obligation on the part of the latter or its representatives. In the diplomatic intervention made by the United States against Chile, in consequence of which the protocol was executed, the distinction between the firm as a legal entity and the partners composing it appears clearly in every phase of the proceedings. Neither Wheelwright nor Prevost assumed in the slightest degree to contract in behalf of, or to bind, the individuals who were or had been members of the firm. This is far from being an academic or technical distinction; the liquidator of the firm of Alsop & Co.
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Opinion by
Mr. Justice Moschzisker,
Edward McCall, a citizen of the United States, residing at Lima, Peru, was a member of the international [383]*383banking firm of Alsop & Co., a Chilean concern; he died at his South American home in 1874. Alsop & Co. went into liquidation, and, in 1876, John Wheelwright, its liquidator, looking towards the collection of a debt due by Bolivia to the Alsop firm, made a contract with that country; but war ensued between Chile and Bolivia, and acts of the former prevented payment by the latter. In 1885, Wheelwright contracted with George S. Bout-well, Esq., to represent “him” and “said firm” in the prosecution of the claim of Alsop & Co. against Chile and Bolivia; he agreed to pay, as counsel fees, a stipulated percentage upon the amount “recovered for me or said firm,” and an effort to have part of these fees charged against the American heirs of Edward McCall gave rise to the present litigation.
Nathaniel A. Prentiss, Esq., became associated with Boutwell, they together representing Alsop & Co., or its liquidator; Wheelwright died and Henry S. Prevost succeeded him in office. Thereafter, in 1893, the United States of America and Chile created a joint commission for the consideration of claims of the citizens of each country against the other country, but the life of this body expired before it took action on the Alsop claim; in 1900, the commission was revived, and Messrs. Bout-well and Prentiss again presented that demand, but it was rejected because Alsop & Co. was “a Chilean juridical person,” and, possessing such nationality, its rights as a claimant against Chile were not comprehended by the terms of the submission, which in this respect embraced only corporations, companies, or individuals, citizens of the United States.
Prevost died in 1904, and no succeeding liquidator was appointed. Subsequently a treaty of peace was entered into between Chile and Bolivia, whereby the former appropriated a considerable sum of money to pay several specified demands against the latter, including that of Alsop & Co.
In the meantime, the Alsop claim was being pressed [384]*384¡upon the attention of the American State Department, not only by Messrs. Boutwell and Prentiss, but by other —independent—counsel representing the estate of Anne McCall, who had succeeded to the interest of Edward McCall, deceased; and, eventually, the whole matter was submitted to King Edward VII of England, for arbitration, a protocol to that end having been concluded December, 1909, by the United States and Chile.
On the death of King Edward his place was taken by George V. This time, however, although one of the partners still lived, the demand was not presented, as before, on behalf of the Alsop firm, or of its surviving member, but was made for the several individual partners, nominatim, including Edward McCall, their “heirs, assigns, representatives and devisees.” In other words, instead of putting the claim in for a Chilean entity, it was entered on behalf of certain designated American citizens.
King George made an award, in 1911, favoring the American claimants, and shortly thereafter Chile paid the amount involved to the United States government, which created a national fund for distribution by the Department of State.
There had been eleven terms, or periods, during the course of the career of Alsop & Co., each term representing a renewal of the partnership and, often, a change in the personnel of the firm. On August 16, 1912, Secretary Knox formulated an order awarding the fund on hand to the estates of the partners of Term No. 9 — among others, the estate of Edward McCall, deceased; but, immediately after this, the attorneys for George McCall, executor of Anne McCall, convinced the secretary (by proofs showing the devolution of title from Edward McCall to his sister Anne, and that the former’s estate had long since been administered and distributed) that the McCall award should be paid to the executor of Anne McCall. George McCall filed a bond, as executor, and the secretary of state issued a certificate in his favor; where[385]*385upon so much of the fund as had originally been ordered to be paid the estate of Edward McCall was given to the executor of Anne McCall.
The secretary of state, in making his award, held that, under the Act of Congress of February 27, 1896 (29 Statutes at Large 32), he could recognize only the primary claimants to the fund and lacked jurisdiction to consider derivative claims, such as the one for counsel fees here involved, presented by Nathaniel A. Prentiss, Esq., on behalf of‘himself and George S. Boutwell, then deceased; but the secretary expressly said that this was “without prejudice to such proceedings, if any, as those making the claim may see fit to bring in the appropriate tribunals for the enforcement of the rights of which they, may consider themselves possessed.”
George McCall filed an account as executor of Anne McCall, deceased, charging himself with the money received from the United States government, and claiming certain credits, with which we are not now concerned. Shortly thereafter Nathaniel A. Prentiss died, and N. A. McCarthy, as ancillary administrator of both Boutwell and Prentiss, brought forward the claim of his decedents for counsel fees, which he alleged to be due them by the McCall estates, for services rendered under the original contract with the liquidator of Alsop & Co.
The court below decided to hear and adjudge the claim at the audit of the executor’s account, in the Anne McCall estate, and no question of jurisdiction is now raised in that regard, although the Commercial Trust Co., as ancillary administrator d. b. n. c. t. a. of the estate of Edward McCall, appears as an appellant; but appellant McCarthy, representing the estates of Messrs. Boutwell and Prentiss, contends that the court erred in refusing to allow the counsel fees asked for his decedents.
It appears that Prevost, when he succeeded Wheelwright as liquidator of Alsop & Co., confirmed the agreement retaining Boutwell and Prentiss as attorneys, but, [386]*386after the decease of Prevost, in 1904, these attorneys were not retained by anyone representing either the estates of Edward or Anne McCall. In this connection, the auditing judge (Gest) properly says: “When the protocol of submission was made between Chile and the United States, by which the determination of the amounts equitably due to the individual partners of Alsop & Co. was referred to King Edward VII, the case assumed a radically different position, and the estates of Boutwell and Prentiss, in order to maintain their claim against the estate of Edward McCall, should show some contractual obligation on the part of the latter or its representatives. In the diplomatic intervention made by the United States against Chile, in consequence of which the protocol was executed, the distinction between the firm as a legal entity and the partners composing it appears clearly in every phase of the proceedings. Neither Wheelwright nor Prevost assumed in the slightest degree to contract in behalf of, or to bind, the individuals who were or had been members of the firm. This is far from being an academic or technical distinction; the liquidator of the firm of Alsop & Co. was acting in behalf of an entity entirely distinct in every legal aspect from the individuals who were partners, and any asset which might have been recovered by such liquidator probably would have been subject to claims, liens or other rights, radically distinct from those growing out of the interests of the individuals......The claim of Boutwell and Prentiss......is put clearly upon a contractual basis, and their estates must recover on that basis or not at all.” The orphans’ court then decided that, since the McCalls had. employed independent, counsel to represent them, and Boutwell and Prentiss, although representing several other interests, had shown no contract of retainer with either of the McCall estates, their claim for counsel fees could not be allowed against the latter; and this is the matter of complaint which we have to' adjudge.
[387]*387We are not convinced of error in the conclusion reached by the court below, and see nothing in the original contract of retainer, nor in the subsequent facts, which obligates the McCall estates, or either of them, to pay the Boutwell-Prentiss fees. Our attention is directed to two documents which mention the fees in controversy; but, as stated by the learned auditing judge, the first of these so-called agreements was never consummated, several of the parties in interest having failed to sign, and the second is nothing more nor less than “a submission to arbitration by the secretary of state of numerous disputed claims,” among others that of Bout-well and Prentiss. The secretary having refused to assume such arbitration, “the agreement,” in the words of Judge Gest, “proved futile and cannot in the present litigation be regarded as in any way a ratification or confirmation by George McCall of the employment of Bout-well and Prentiss, or a recognition of their claim...... A tentative agreement of compromise, not consummated, leaves the parties where they were before its execution, and never can be used against either party in the litigation which it was intended to prevent.”
No point as to the amount of the Boutwell and Prentiss fees being involved, it is contended by appellants the writings were not compromise agreements in that regard; but apparently a question always existed, so far as the McCall estates are concerned, as to whether or not either of them owed anything at all on account of these fees. We think, under the circumstances, the documents relied upon were properly held by the court below to be in the nature of compromise agreements, which could not legally be given the effect claimed for them by appellants; they were not necessarily an acknowledgment of either the legality or justice of the claim for attorneys’ fees mentioned therein, but merely a recognition that it was to the mutual advantage of everyone concerned to have all demands upon the fund disposed of, if possible, by the secretary of state, rather than to have [388]*388them litigated elsewhere. The alleged recognition of the Boutwell-Prentiss demand was only to that extent, and must be so confined; but, after all is said, whether or not anything contained in the writings was intended as a recognition of the validity of a particular claim, is really a question of fact, decided against appellants by the court below, which we have no warrant to disturb.
Instances may be found where a special provision in the contract itself causes a liability for attorney fees to continue against him who takes any part of the fund eventually realized; or where the demand from which the fund arises really remains with, and, in the end, is recoverable by the original claimant, or his direct representative, and, for that reason, the liability to pay attorney fees continues; or where the party to whom the ciaim eventually passes so recognizes and accepts the services of the attorney originally retained, as to create a liability on the former’s part for the latter’s fees. Some such authorities have been cited; but all of them are distinguishable on their facts from the case now before us, where it was necessary to abandon the original claimant, Alsop & Co. (the client of the attorneys whose fees are here in controversy), and substitute others in its place, ere recovery of any part of the fund now for distribution could be hoped for, and where, until this was done, success did not accrue.
It is too late to contend, as counsel for appellants attempt to do, that no distinction should be made between the artificial personality of Alsop & Co. and the American partners who composed that firm, or the latter’s American “heirs, assigns, representatives, and devisees”; for the voluminous record of the international proceedings undertaken and carried through by the United States shows that the success of our government’s efforts rests upon this very distinction, and also that the failure to insist upon such a distinction accounts for the lack of success when the claim was pressed by Boutwell and Pi’entiss, in 1901, before the Revised Chilean Claims [389]*389Commission. After obtaining the award which created the fund, by taking a certain stand before the international tribunal, it would be a breach of good faith in any manner or degree to ignore or depart from the basic grounds upon which such recovery was had.
Judge Henderson, speaking for the court below in banc, well summarizes the phases of the case which are now before us, thus: “The previous attempt to recover ......for the account of the Chilean entity, Alsop & Co., failed because Chile refused to recognize the right of the United States to intervene for any but her own citizens......The balance shown by the account is a national fund donated by Congress to the heirs and representatives of Edward McCall; [but the same persons] take the fund, in the same proportions, whether derived through Edward or Anne McCall. The account is filed by the estate of Anne McCall [and, the United States government having paid the fund to that estate, it can] properly be distributed [in the present proceeding]. ......Neither Prentiss nor Boutwell were employed by, or even known to, the McCall executor; hence they have, and make, no claim to recover on a quantum meruit, and they cannot now recover, against the McCalls, on the original contract of retainer, which Boutwell made with the liquidator of Alsop & Co.”
After studying this record, we join the auditing judge in saying that “no case has been contested before us by counsel with greater industry, learning and ability than the present”; we may add that these efficient professional services, and the painstaking work of the learned court below, have considerably facilitated our labors on review.
The assignments of error which go to the several points discussed in this opinion, are overruled; the others are dismissed, as unimportant, and the decree is affirmed at cost of appellants.