Gamble, J.,
delivered the opinion of the court.
The judgment in this case professes to be upon a case agreed, and the record contains an agreement signed by counsel, as well as letters and a deposition, which all appear to have been considered by the court.
Although the judgment has the agreed case for its foundation, the parties^ asked the court for a great number of instructions, of which some were given and some refused.
It is our understanding, that a judgment upon an agreed case is a judgment upon the facts which the parties have assented to and signed, and [558]*558which agreement stands in lieu of a special verdict. The agreement is not, in such' case, used as evidence before the triers of fact, but is designed to form a part of the record, and upon it the court pronounces the conclusion of law, as would be done if the same facts were found by a jury, in the form of a special verdict. The parties may agree to certain facts involved in the case, which they do not wish to controvert, while they still dispute other matters of fact on either side. In such case the agreement when signed, is used before the tribunal which tries the question of fact, as evidence, concluding the parties so far as they have agreed, but in that case, the judgment will be upon the finding of the facts and not upon an agreed case. This is mentioned at present for the reason that while counsel, with a proper and laudable desire to avoid useless and expensive controversy about facts which they do not consider material to the interests of their respective clients, make agreements in relation to such facts, they may be apprised of the damages to their clients if they neglect to have the record exhibit the case in its proper legal aspect, so as to present the questions for review before this court.
In the present case, as the judgment by its own terms rests upon an agreed case, we look through the transcript to find it, and when found, we take the judgment to be the conclusion of law pronounced by the court upon the facts agreed by the parties. The instructions which were passed upon by the court below, are only useful here as a kind of index to the questions of law which the parties understood, properly arose upon the facts agreed. We deal with the conclusion contained in the judgment.
The following is a sufficient synopsis of the facts in the case, to show the questions of law involved:
Cornelia Hempstead, the widow, and Cornelia V'. Hempstead, the minor daughter and heir of Thomas Hempstead, deceased, claimed to own or to have an interest in various portions of real estate of the deceased, which were held by other persons adversely. On the 6th of June, 1846, a contract was made between them and Mr. Munford, the plaintiff, who was an attorney and counselor at law and solicitor in chancery, which, was signed and sealed by them, but not by him, by which they engaged his services as their sole counsel, to establish their right to an interest in a certain forty arpent lot, partly within the city of St. Louis, which had been purchased by Thomas and Charles S. Hemp-stead from Margaret Hebert ditLecompte, on the 8th of January, 1818. They authorized him to institute such proceedings in law or equity as he might judge proper to assert their rights, and to compromise their [559]*559claims as he might judge advantageous for them, covenanting to give to Mr. Munford one-third part of whatever might be realized to either of them by compromise, or if property was recovered, to convey to him one-third part of what might be recovered.
On the 8th of June, 1845, there was another contract made by which it is recited that the estates of Thomas Hempstead and Edward Hemp-stead were in great confusion, and that Cornelia, the widow, and Cornelia V., the daughter of Thomas Hempstead, have rights and interests in said estates, the .enjoyment of which they were deprived of by the pretended claims of others, and therefore they engaged the professional services of Mr. Munford and Mr. Albert Todd, and agreed that they should be the sole and only counsel for the purpose of establishing the 3-ights of the ladies in both of said estates. The attorneys were authorized to institute such suits as might be necessary to establish the rights of their clients, and the clients engaged that the attorneys should receive one-third of all property, money and effects to which the rights of the client should be established, as a compensation for their services.
Mr. Todd never performed any services under this contract, hut in October succeeding its date, assigned all his interest under it to Mr. Munford. This latter gentleman, in November following, commenced a suit in chancery to recover apart of the property which is described in the agreement of the 6th of June. While this suit was pending one of the parties, defendant, compromised with the complainants through Munford the solicitor, and paid him $2,100 for the relinquishment by the complainants of all their claim to the property which he held. The complainants executed the deed conveying their right; Munford received the money, and retaining one-third for himself, paid the two-thirds to the complainant, Mrs. Cornelia Hempstead. Afterwards, the complainants, without the knowledge of the counsel, Munford, compromised with the other defendants, receiving $8,000 as the consideration for their relinquishment. The object of the present suit by Munford is, to recover the one-third of the money so received by his clients upon this compromise. The petition is entirely upon the first contract, dated on the 6th of June. It appears that while the suit brought by Munford for his clients was pending, they recognized him as their attorney, acting for them in the suit and expressed satisfaction with his attention to their interests. The agreement of the parties states no other facts in relation to the second contract, than that Todd did nothing under it and assigned his interest to Munford. It was after this assignment was made that the suit was brought ir< which the compromise was made, and it is apparent that the oUooís ¡-eeognized Mr. Munford as their conn cl in that suit [560]*560Still, it is not agreed that the clients had any knowledge of the abanr donment of the case by Mr. Todd, or of his assignment to Mr. Mun-ford. That Munford should be spoken of by his clients, as their counsel, and his fidelity and diligence be praised, does not involve the knowledge on their part, that he was acting alone in their case, although it establishes the fact, that his professional services were highly satisfactory to his clients. The fact is agreed, that Cornelia Y. Hempstead, the daughter, who was a minor when the different contracts were made and who subsequently inter-married with the defendant, Wilson, claimed no interest, in the property for which the suit w'as brought and which was included in the compromise, except as daughter and heir of Thos. Hempstead.
The court below gave judgment in favor of Munford for one-third of the money recovered on the compromise, with interest.
Two questions are now presented for consideration. 1st__Whether the contract of the 6th of June remained in force and bindirig upon the parties, after that of the 3th was made between the same clients and Messrs. Munford and Todd. 2nd — Whether the contract is illegal, because it provides a compensation to the lawyer by giving him one-third of the property in dispute for which suit was tobe brought.
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Gamble, J.,
delivered the opinion of the court.
The judgment in this case professes to be upon a case agreed, and the record contains an agreement signed by counsel, as well as letters and a deposition, which all appear to have been considered by the court.
Although the judgment has the agreed case for its foundation, the parties^ asked the court for a great number of instructions, of which some were given and some refused.
It is our understanding, that a judgment upon an agreed case is a judgment upon the facts which the parties have assented to and signed, and [558]*558which agreement stands in lieu of a special verdict. The agreement is not, in such' case, used as evidence before the triers of fact, but is designed to form a part of the record, and upon it the court pronounces the conclusion of law, as would be done if the same facts were found by a jury, in the form of a special verdict. The parties may agree to certain facts involved in the case, which they do not wish to controvert, while they still dispute other matters of fact on either side. In such case the agreement when signed, is used before the tribunal which tries the question of fact, as evidence, concluding the parties so far as they have agreed, but in that case, the judgment will be upon the finding of the facts and not upon an agreed case. This is mentioned at present for the reason that while counsel, with a proper and laudable desire to avoid useless and expensive controversy about facts which they do not consider material to the interests of their respective clients, make agreements in relation to such facts, they may be apprised of the damages to their clients if they neglect to have the record exhibit the case in its proper legal aspect, so as to present the questions for review before this court.
In the present case, as the judgment by its own terms rests upon an agreed case, we look through the transcript to find it, and when found, we take the judgment to be the conclusion of law pronounced by the court upon the facts agreed by the parties. The instructions which were passed upon by the court below, are only useful here as a kind of index to the questions of law which the parties understood, properly arose upon the facts agreed. We deal with the conclusion contained in the judgment.
The following is a sufficient synopsis of the facts in the case, to show the questions of law involved:
Cornelia Hempstead, the widow, and Cornelia V'. Hempstead, the minor daughter and heir of Thomas Hempstead, deceased, claimed to own or to have an interest in various portions of real estate of the deceased, which were held by other persons adversely. On the 6th of June, 1846, a contract was made between them and Mr. Munford, the plaintiff, who was an attorney and counselor at law and solicitor in chancery, which, was signed and sealed by them, but not by him, by which they engaged his services as their sole counsel, to establish their right to an interest in a certain forty arpent lot, partly within the city of St. Louis, which had been purchased by Thomas and Charles S. Hemp-stead from Margaret Hebert ditLecompte, on the 8th of January, 1818. They authorized him to institute such proceedings in law or equity as he might judge proper to assert their rights, and to compromise their [559]*559claims as he might judge advantageous for them, covenanting to give to Mr. Munford one-third part of whatever might be realized to either of them by compromise, or if property was recovered, to convey to him one-third part of what might be recovered.
On the 8th of June, 1845, there was another contract made by which it is recited that the estates of Thomas Hempstead and Edward Hemp-stead were in great confusion, and that Cornelia, the widow, and Cornelia V., the daughter of Thomas Hempstead, have rights and interests in said estates, the .enjoyment of which they were deprived of by the pretended claims of others, and therefore they engaged the professional services of Mr. Munford and Mr. Albert Todd, and agreed that they should be the sole and only counsel for the purpose of establishing the 3-ights of the ladies in both of said estates. The attorneys were authorized to institute such suits as might be necessary to establish the rights of their clients, and the clients engaged that the attorneys should receive one-third of all property, money and effects to which the rights of the client should be established, as a compensation for their services.
Mr. Todd never performed any services under this contract, hut in October succeeding its date, assigned all his interest under it to Mr. Munford. This latter gentleman, in November following, commenced a suit in chancery to recover apart of the property which is described in the agreement of the 6th of June. While this suit was pending one of the parties, defendant, compromised with the complainants through Munford the solicitor, and paid him $2,100 for the relinquishment by the complainants of all their claim to the property which he held. The complainants executed the deed conveying their right; Munford received the money, and retaining one-third for himself, paid the two-thirds to the complainant, Mrs. Cornelia Hempstead. Afterwards, the complainants, without the knowledge of the counsel, Munford, compromised with the other defendants, receiving $8,000 as the consideration for their relinquishment. The object of the present suit by Munford is, to recover the one-third of the money so received by his clients upon this compromise. The petition is entirely upon the first contract, dated on the 6th of June. It appears that while the suit brought by Munford for his clients was pending, they recognized him as their attorney, acting for them in the suit and expressed satisfaction with his attention to their interests. The agreement of the parties states no other facts in relation to the second contract, than that Todd did nothing under it and assigned his interest to Munford. It was after this assignment was made that the suit was brought ir< which the compromise was made, and it is apparent that the oUooís ¡-eeognized Mr. Munford as their conn cl in that suit [560]*560Still, it is not agreed that the clients had any knowledge of the abanr donment of the case by Mr. Todd, or of his assignment to Mr. Mun-ford. That Munford should be spoken of by his clients, as their counsel, and his fidelity and diligence be praised, does not involve the knowledge on their part, that he was acting alone in their case, although it establishes the fact, that his professional services were highly satisfactory to his clients. The fact is agreed, that Cornelia Y. Hempstead, the daughter, who was a minor when the different contracts were made and who subsequently inter-married with the defendant, Wilson, claimed no interest, in the property for which the suit w'as brought and which was included in the compromise, except as daughter and heir of Thos. Hempstead.
The court below gave judgment in favor of Munford for one-third of the money recovered on the compromise, with interest.
Two questions are now presented for consideration. 1st__Whether the contract of the 6th of June remained in force and bindirig upon the parties, after that of the 3th was made between the same clients and Messrs. Munford and Todd. 2nd — Whether the contract is illegal, because it provides a compensation to the lawyer by giving him one-third of the property in dispute for which suit was tobe brought. If the decision is to be adverse to the plaintiff on the first question, it will not be necessary to consider the second, as the parties have agreed upon tire record, that if the plaintiff is not entitled to recover upon the contract sued upon, he shall have leave to amend and proceed upon a quantum meruit for the services rendered-
In order to determine the first question, whether the contract of the 8th of June is a contract substituted for that of the 6th, it is necessary to ascertain whether the “rights to be ascertained and established” by Munford and Todd, under the second contract, comprehend “the rights and interests to be established” by Mr. Munford under the first contract; for if they do, then it must either be held that the second is a substituted contract or that Munford is entitled to hold under both. That tjie second is more comprehensive than the first contract, or that in some of its stipulations it varies from the first, affords no presumption against its being designed as a substitute for the first; for if it were identical with the first, in all its provisions and in its scope, there would appear to be no meaning in its execution.
The first contract commences with the recital, “that Cornelia, widow, and Cornelia V-, daughter of Thomas Hempstead, claim an interest in a certain tract -of land” and tcthat certain persons are depriving them of the possession and enjoyment of the property, by pretended claims;” [561]*561therefore, they engage the professional services of Munford, to establish their rights and interests in the property. In this property it is agreed that the interest of the present Mis. Wilson, was only as heir of her father Thomas Hempstead.
The second contract begins with the recital, “that the estates of Thomas Hempstead and Edward Hempstead are in great confusion and difficulty, and that Cornelia, the widow, and Cornelia V., the daughter of Thomas Hempstead, have rights and interests in said estates, of the enjoyment of which they are deprived by the pretended claims of others; therefore, for the purpose of ascertaining and establishing their rights and interests in both of said estates they thereby engage the professional services of Messrs. Munford and Todd.”
The compensation to be received under each contract, in the event of a recovery of property, is one-third of all that may be recovered. In the first contract'with Mr. Munford, there is the additional stipulation, that he shall have one-third of what may be realized by compromise.
The question to be determined is, whether, immediately after the execution of these two contracts, they were both subsisting agreements. If they were, then, undoubtedly, Mr. Todd had a right to take part in the litigation for the specific property mentioned in the first contract, for that was claimed to be a part of the estate of Thomas’Hempstead, and he and Mr. Munford would, in the event of success, have taken under the two contracts, the lion’s share of two-thirds of the spoils, while the widow and heir would have received the other third. The subsequent abandonment by Mr. Todd of the contract of the 8th of June and his assignment of his interest to Munford, has no influence in determining the present question; nor is the recognition of Mr. Munfofd by the defendants, as their attorney, entitled to any weight in its determination. If the last contract superceded the first, the first was not revived, because of Mr. Todd’s abandonment bf the second, or because, when Mr. Munford proceeded to institute suits, he was recognized as the attorney of the clients.
It is apparent that the specific property described in the first contract came within the scope of the second. It was claimed as property in which the mother and daughter were interested, as the widow and heir of Thomas Hempstead. It was property withheld from, their possession and enjoyment by others claiming adversely. The object in employing an attorney was, to establish their rights and interests in the property. The second states the same condition, of the property belonging to the estates of Thomas and Edward Hempstead — the same obstruction to the enjoyment by the widow and daughter of their rights, and the same [562]*562object in employing attorneys. If the first had never been made, there could be no question that the second would include the property mentioned in the first. There is nothing in the second that excepts that property from its operation. It seems impossible, when we examine the recitals of both and fix the measure of compensation t© the same for the same services to be rendered, to imagine that the parties understood the first to be in force when the second was executed.
As both these contracts are under seal, and of the same dignity, the question does not arise, which has embarassed. courts, whether a contract under seal can be varied, waived or discharged by parol. We look at the two instruments and find that all the parties to the first are parties to the second — that the second comprehends the first in the duties to be performed, and is like it in the compensation to be given. That the chief difference is, in the scope of the second being much greater than that of the first, embracing all the litigation that might arise in relation to two estates, while the first was confined to litigation about the title of one piece of property of one of the estates. The second engages the services of the same attorney that was employed in the first contract and also of another attorney.
These two instruments form a part of the case agreed, and upon them it is evident that the first was absorbed in the second and was not a subsisting agreement after the second was executed. The plaintiff claims only under the first and is not entitled to recover under it because of the subsequent agreement.
As the second contract is not before the court for adjudication, it is not necessary to pass upon its merits, but it may be questionable, whether, according to its terms, any specific portion of the money obtained by compromise, can be recovered: Evans vs. Bell, 6 Dana 479.
The question which is presented and discussed in the written agreements filed by the counsel, whether the contracts are void because of champerty, has occupied our attention and the authorities have been examined, but to trace the law on that subject, from its very early history in England, would occupy more time and space than can be properly used in a ease in which its decision is not necessary.
As the parties have agreed, that if the plaintiff is not entitled to recover upon the contract, he shall have leave to amend and recover upon a quantum meruit, the judgment will be reversed and the cause remanded for further proceedings.