the clients to take Blair's place after Blair's death, or if they agreed to the substitution of Clifton in the place of Blair in his lifetime, the question would be absolutely free of doubt, because then it would not be a question of the rights arising upon the dissolution of a partnership, but would be a plain, simple suit upon a contract made and entered into between parties still living. The grave and important question involved in this litigation is presented by the remaining contention of appellants. The case here presented is that of a contract made between clients and a firm of attorneys, general practitioners, who agree to perform certain legal services for certain compensation, partly absolute, and in part contingent on ultimate success. Upon the death of one of the firm before a final termination of the litigation, the survivor completes the services, and conducts the litigation to its final and successful conclusion. What is the legal principle applicable to the case stated? The determination of this question necessitates the consideration of the relative rights and duties existing between attorney and client, and, as incidental to the main question, the duties and obligations imposed upon the survivor of a firm of attorneys. The general rule in reference to contracts for special, personal services is accurately and clearly stated in the case of Cox v. Martin, 75 Miss., on page 238, 21 South. 612, 36 L. R. A. 800, 65 Am. St. Rep. 604, where it is said: "It is clear that wherever the continued existence of the particular person contracted with-the contract being executory -is essential to the completion of the contract, by reason of his peculiar skill or taste, death terminates the contract; as, for example, contracts of authors to write books, of attorneys to render professional services, of physicians to cure particular diseases, of teachers to instruct pupils, and of masters to teach apprentices a trade or calling." We adhere to this statement of the law in all cases to which it is applicable, but the case at bar is essentially different in its material facts from the case of Cox v. Martin. This is not a contract with any special attorney to render professional services. The continued existence of no particular person is essential to the completion of the contract. The successful consummation of the contract, or the rendition of the services contracted for | here, does not depend upon the peculiar skill or taste of any named individual. This is a joint contract with a firm of attorneys who are both general practitioners. We iterate: Where a contract is made with an attorney, and it is specially contracted or understood that he alone is to do the work or to render the services, or that his skill exclusively is depended upon, then the death of the attorney terminates the contract, whether he be alone or a member of a firm. And so where a client enters into a contract with a firm of attorneys for certain legal services to be rendered, for a fee stated, or upon an implied promise to pay the value of the services rendered, and contracts, as here, for the services of both members, and one of that firm dies before the contract is finally completed; the client then has the option of abrogating the contract entirely by discharging the survivor, settling for services previously rendered, and employing other counsel to conclude his pending litigation. This we understand to be the full extent of the decision of this court in Dowd v. Troup, 57 Miss. 206. It is there held that the client permitting the surviving partner to proceed with the services for which the firm had been previously fully paid could not be called on to pay any additional compensation to the individual member who had in fact performed the services. That case does not pass on the question, nor is it presented for necessary decision here, as to what compensation, if any, the attorneys would be entitled to recover for services rendered previous to the dissolution, should the client exercise his right of choice, and terminate the employment, where the fee under the contract was entirely contingent upon success. We intimate no opinion on this point. But see, as illustrative, Wright v. McCampbell, 75 Tex. 644, 13 S. W. 293; Landa v. Shook, 87 Tex. 609, 30 S. W. 536; Badger v. Celler, 41 App. Div. 599, 58 N. Y. Supp. 653; Smith v. Hill, 13 Ark. 174; Little v. Caldwell, 101 Cal. 553, 36 Pac. 107, 40 Am. St. Rep. 89. The contract which forms the basis of the case at bar shows that the employment of Blair & Anderson was a joint employment of both members of the firm to render certain specified services, and to manage and conduct certain matters then in litigation. This contract entitled the clients to the services of the firm, but was not a contract for the individual services of any named member of the firm. Either partner may attend to business intrusted to a firm of attorneys, for the act of each is the act of all, and such a general contract does not give the client the right to demand that any particular member of the firm shall render the services or conduct the litigation. Eggleston v. Boardman, 37 Mich. 14; Page v. Welcapt, 15 Gray, 536. So that when one member of a firm of general practitioners employed under such a contract dies, it becomes the duty of the surviving partner to hold himself in readiness to perform the services required of the firm under the contract, and to compete the unfinished business for the benefit of the client. This doctrine is impliedly recognized in the case of Dowd v. Troup, supra, where the surviving partner was denied extra compensation for services rendered after the death of his partner, and this conclusion can only be supported on the ground that the duty of completing the contract devolved on him as surviving partner. And it is there expressly stated that the surviving partner, in rendering such services, "was but discharging his own obligation as a member of the partnership." Inasmuch as a general employment of a firm of attorneys is a joint employment of the members, and it is the duty of each to discharge the joint obligation, one member of the firm cannot, upon dissolution of the partnership, whether by death or otherwise, refuse to carry to completion all executory contracts which were in force at the date of such dissolution. Walker v. Goodrich, 16 Ill. 341; Polsley v. Anderson, 7 W. Va. 202, 23 Am. Rep. 613; Johnson v. Bright, 15 Ill. 464; Smith v. Hill, supra. With the possible limitation that they might be entitled to some additional compensation from the estate of his deceased partner for services rendered in winding up unfinished business, we see no reason why the general rule applicable to commercial partnerships should not apply to surviving partners of firms of attorneys. Having jointly undertaken the business intrusted to the partnership, each partner was under obligation to conduct it to the end. They owed this to the client and to each other. The very basis of every partnership is that here is "an implied obligation on every partner to exercise due diligence and skill, and to devote his services and labors for the promotion of the common benefit of the concern." Star v. Cass, Adm'r, 23 Ind. 458: Story, Part. §§ 182, 331; Denver v. Roane, Ex'r, 99 U. S. 355, 25 L. Ed. 476; Osment v. McElrath, 68 Cal. 466, 9 Pac. 731, 58 Am. Rep. 17. As to the executory contracts only partially fulfilled the death of one partner does not absolve the other from the duty of rendering the services contracted for, and the active functions of the partnership are continued in existence until full performance by the surviving partner. This principle is applicable to partnerships between attorneys as to executory contracts when the individual, personal service of the deceased partner was not specially contracted for. Sterne v. Goep, Adm'r, 20 Hun, 396; Bates, Part. § 711; Denver v. Roane, supra. And in upholding the doctrine that this duty devolves on the surviving partner, and is one of the risks and obligations assumed by him in the formation of the partnership, the Supreme Court of California, in Little v. Caldwell, supra, says: "This rule is particularly applicable in the settlement of the partnership accounts of attorneys at law, when the firm has been dissolved by the death of one member, leaving contracts not fully performed, often constituting a large part of the assets of the partnership, and which it is the duty of the survivor, as far as possible, to complete and preserve for the benefit of the firm. While it is certainly true, when a professional partnership between attorneys at law is dissolved by the death of one, the survivor is entitled to his own future earnings, and is not required to make an allowance in the settlement of the partnership accounts for what may be termed the good will of the partnership, or for the profits of such future business as may have been given to him by former clients of the ärm, still, in regard to unfinished business intrusted to the firm, and which the client permits the surviving partner to complete, such contract of employment, although not capable of assignment, is still to be viewed by a court of equity as an asset of the partnership; and it is none the less an equitable asset when, as in this case, the compensation for such services is entirely contingent upon the final success of the litigation in which the services are to be rendered." In a class of cases beginning with McGill v. McGill, 2 Metc. (Ky.) 258, it is stated as the general rule that the death of one of the firm of attorneys terminates the contract, but that the firm is entitled to compensation for services rendered during the continuance of the engagement, and the reason for the conclusion is thus stated: "A contract with a lawyer, the performance of which requires the exercise of professional skill, is personal in its character. The service of the person employed is indispensable in the performance of the contract. Lawyers are employed in professional business because the client has confidence in their integrity and in their qualifications." We have no fault to find with the language here employed, in all cases where applicable. A contract with a professional man for his individual services, as pointed out in Cox v. Martin, supra, is always personal, in the sense that it is terminable by death, and that performance of it cannot be demanded of his personal representatives, and it is also true that such a contract is terminated by death when the service of the person employed is "indispensable in the performance of the contract." But as herein already pointed out, the service of no special person is "indispensable in the performance of the contract" in contracts, such as the one under review, with a firm of general practitioners, contracted with as a firm, and not as individuals. The McGill Case ignores absolutely the duty and obligation of the surviving partner to the client and to the estate of his deceased partner-to our mind, a very important and material consideration, and which must often vary the general rule so broadly stated in that case. If, after dissolution of the partnership by death or otherwise, the estate of the retiring partner be liable for the tortious or negligent act of his late partner in reference to partially fulfilled executory contracts, as decided in the McGill Case, Wilkinson v. Griswold, 12 Smedes & M. 669, and other cases, it would be illogical and inequitable to deny the representatives of the deceased partner an equitable participation in the compensation accruing by reason of the subsequent performance of such contracts by the surviving partner, and which the survivor was in duty bound to perform for the benefit of the firm. From the foregoing, it necessarily follows that the surviving partner could not of his own motion procure release from this duty or service, and refuse to carry out to its ultimate completion, the work which had been intrusted to the firm before the death of his partner. Nor could the client, with the intent of defeating the claim of the estate of the deceased partner, re-employ the survivor of the law firm, and thus, by making a new contract, have the benefit, without making compensation therefor, of the services rendered of the deceased partner, and by such contract only procure services to which he was already entitled. Making a concrete application of these general principles to the case at bar, and waiving consideration of all disputed contentions, we find that, after the death of Blair, Clark, Hood & Co., without offering to settle with the estate of Blair, attempted to enter into a new contract with Anderson, the surviving partner, by which Anderson was retained in their employ, and conducted to a satisfactory conclusion the litigation which had been intrusted to the firm of Blair & Anderson. It is true that the employment of Blair & Anderson was a joint employment, and that, by the death of one of the partners, clients were deprived of his services; but this does not render them the less liable for the compensation agreed on, for the good and sufficient reason that one member of the firm did perform the services which the firm undertook to render, and therefore the contract was fulfilled. It is also true that the employment of Anderson was by another agreement made after the death of Blair, but equity and good conscience forbid the surviving partner to abandon the business of the firm, and contract to the detriment of the financial interest if his deceased partner's estate, even when, as in the present case, such action is dictated by an honest, but erroneous. conception of the law. Nor can the client thus avail himself of the services rendered by the deceased attorney in his lifetime, and then refuse to pay the compensation agreed upon, after, by reason of such services, the litigation has been brought to a successful termination. It may be that the surviving partner might have an equitable claim for a larger share of the compensation received for his services rendered after the death of his partner, but that question we are not called upon now to decide, for the reason that the executors of Blair agreed with Anderson as to what his compensation should be, and that compensation, the record discloses, has already been received by Anderson; and it further appears that, with eminent and commendable fairness and consideration, he expressly disclaims any interest in any fees which may be found due the estate of Blair by appellees. Clark, Hood & Co. did not take advantage of the option of finally terminating the contractual relations which existed between themselves and Blair & Anderson, did not offer to settle for services rendered previously, but contented themselves with allowing the surviving partner to remain in control of and conduct the business to its close; and this was a recognition and a continuance of their original contract, whereby they remain liable to the firm of Blair & Anderson for the full amount of the compensation originally agreed on; and, as Anderson acknowledges the receipt of his interest in that compensation, the remainder, to be ascertained by calculations according to the terms of the contract, is now due the estate of Blair. It is urged by appellees that, viewing the services rendered by Blair & Anderson in the lifetime of Blair as a part performance of a contract, then the estate of Blair is not now entitled to further compensation, because it is claimed that upon quantum meruit the firm had been fully paid for all services rendered prior to the death of Blair. This reasoning is without force in the present case. The doctrine of quantum meruit can find no lodgment here. There was no partial performance of the contract in the instant case, on which a quantum meruit could be based or calculated. The contract was fully complied with by the rendition of the required services by the surviving partner. The firm was not discharged and settled with up to date of dissolution, but, through one member thereof, made full performance of the contract. This contract provided for both an absolute and contingent fee. The absolute fee had been paid, the contingent fee depended upon the successful termination of the suit; all to be due if the suit was won; nothing to be due if the suit was lost. Therefore the rights of Blair were not fixed until the termination of the litigation, and are now to be ascertained by a calculation upon the amount recovered, as the fruits of the services rendered by Blair & Anderson, whether as a firm or individually. It follows, therefore, that the decree of the chancellor denying the relief prayed for by the cross-bill of appellants was error. Appellants, as executors of the estate of J. A. Blair, deceased, are entitled to recover the amount of the contingent fee due under the terms of the contract with Blair & Anderson, after first deducting therefrom the 4% per cent. received by W. D. Anderson since the death of J. A. Blair. All parties necessary to a final determination and adjudication by a court of equity of the matters here involved are before the court. The decree of the chancery court is reversed, and the cause remanded for further proceedings in accordance herewith. Reversed, and remanded. (84 Miss. 1) ALABAMA & V. R. CO. v. LIVINGSTON. (Supreme Court of Mississippi. April 4, 1904.) CARRIERS-TRESPASSERS-EJECTION FROM TRAIN -MODE OF EJECTION-ABUSIVE LANGUAGE -DAMAGES-EXCESSIVE DAMAGES. 1. One who boarded a freight train believing that he had a right to ride on it because he had been erroneously informed by the railroad's track superintendent that he could ride on the train was not a passenger under an implied contract. 2. One boarding a freight train on which he had no right to ride, believing that he had a right so to do because the track superintendent of the railroad had told him that he might ride on the train, while a trespasser, was not a willful trespasser. 3. A railroad company is liable for the conduct of the conductor of the freight train in cursing and abusing a trespasser on ejecting him from the train. 4. Where plaintiff boarded a freight train believing that he had a right to travel thereon, and was expelled by the conductor with abuse and cursing after an offer to pay his fare, between stations, on a stormy night, a judgment for $2,000 in favor of plaintiff was excessive, and will be reversed unless $1,000 is remitted. Appeal from Circuit Court, Scott County; Jno. R. Enochs, Judge. Action by Dave Livingston against the Alabama & Vicksburg Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed on condition that plaintiff remit $1,000 of the verdict rendered in his favor; otherwise reversed. The evidence for plaintiff was that plaintiff and a companion were at Forest, a station on defendant's road, and desired to take the passenger train going east late that night to go to Meridian, Miss. About 8 or 9 o'clock that night they were in a barber shop in Forest, and there, in a conversation with a Mr. Bustin, who was track superintendent of defendant's road, said something about the lateness of the time for the arrival of the passenger train, when Bustin told them that they could go on the through freight train. That they in a short time then got on the through freight, and the conductor came around and asked them if there were some cattle to go on the train, to which they replied they did not know. The conductor then went about his business, and in 15 or 20 minutes the train left Forest, and when about half way to the next station the conductor came around, and told them they could not ride on that train, and that he would put them off at the station Lake. When the train reached Lake it did not stop, but went by three or four miles, when the train was stopped, and they were put off. Plaintiff testified that he told the conductor that Bustin told him he could ride on the train, and he would not have gotten on if he had not been told so; that he could not reason with the conductor; told him he would pay for his passage, but every time he said anything about pay the conductor would curse him, and every time he tried to reason with the conductor he would curse and abuse him; that he then offered the conductor $10 if he would take him to the next station, and the conductor replied that: "I will not take your money; I believe you are a damned railroad spy anyhow;" that it was a cold, dark night, and it was raining, and plaintiff and his companion had to walk back to Lake three or four miles. The testimony for defendant was that Bustin did not tell plaintiff and his companion that they could ride on the through freight train; that the conductor never saw them until the train left Forest, and that he told them between Forest and Lake that they could not go on that train, and that he would put them off at Lake; that when they reached Lake it was raining, and the smoke was so heavy the signal could not be given, and the train ran through about a mile, when it stopped, and they were then put off without insult; that Bustin had no authority to give any one permission to ride on the freight train; and that the train was not authorized to carry passengers except when they were with cattle. Defendant's motion for a new trial was overruled, and it appeals. McWillie & Thompson, for appellant. McLaurin & McLaurin and Green & Green, for appellee. WHITFIELD, C. J. We do not think there was any implied contract to carry appellee as a passenger. He must be treated as a trespasser, but not as a willful trespasser. He must be regarded as having boarded the train believing that Bustin had authority to allow him to travel on a freight train. But the evidence makes it equally clear that he was put off under circumstances of insult and outrage, and that, too, by the conductor acting in the line of his duty. The conductor had a right to put him off under proper circumstances and at a proper place and time (Hudson v. Lynn & B. R., 178 Mass., at page 67, 59 N. E. 647; Louisville, etc., R. v. Sullivan, 81 Ky. 634, 50 Am. Rep. 186); but it was his duty, even towards this trespasser, not to willfully and maliciously wrong him by insulting and abusing him when he put him off. Because of the mode in which he was ejected, to wit, because of the cursing and abuse on the part of the conductor, we think the company is liable in punitive damages. My Brethren think, however, that the damages are too large, and that $1,000 only should be allowed. I would prefer to allow the full amount to stand, speaking for myself, under all the circumstances of this case; but my conviction is not strong enough to warrant dissent about a mere matter of damages. If, therefore, the appellee will remit $1,000, the judgment will be affirmed; otherwise the cause will be reversed and remanded. (84 Miss. 550) MEANS et al. v. HALEY. TITLES-QUITCLAIM DEED-PATENT. 1. Where land is held under a tax title, and also under a subsequent quitclaim deed from the state, given under authority of Act March 2, 1888 (Laws 1888, p. 40, c. 23), relative to quieting title to land in the Yazoo Delta, the title is good, as against a still later patent from the state, though the tax title was void. Appeal from Chancery Court, Leflore County; C. C. Moody, Chancellor. "To be officially reported." Bill by M. E. Haley against N. C. Means and others. From a decree overruling a demurrer to the bill, defendants appeal. Affirmed. Mrs. M. E. Haley filed her bill in the chancery court of Leflore county, against appellants and all persons having or claiming any interests in the lands described in the bill, to quiet her tax title to said land. Her bill show the chain of title of both complainant and defendants as follows, to wit: A patent from the United States to W. H. Paxton, January 2, 1836. A tax deed from the sheriff of Sunflower county to Ike Robinson in 1861. Sale to the state for taxes in 1867. A sale to the liquidating levee board for taxes due the levee board in May, 1870. A deed from the liquidating levee board to Eugene C. Gordon in October, 1881. A deed from Eugene C. Gordon to Byron H. Evers in November, 1881. A sale to the state for taxes in March, 1883. A deed from the state of Mississippi to James Stewart, receiver, in March, 1885. A deed from James Stewart, receiver, and J. M. McKee, special commissioner, to Thos. Watson, in March, 1886. A deed from Thos. Watson to the Delta & Pine Land Company in May, 1886. A quitclaim deed from Byron H. Evers to the Delta & Pine Land Company in November, 1886. Α deed from the state of Mississippi, July 6, 1888, to the Delta & Pine Land Company, and sale by the tax collector of Leflore county to W. T. Rush in 1896. A quitclaim deed from the heirs of W. T. Rush to complainant, and a tax collector's deed to the complainant by the tax collector of Leflore county in 1900; the land having been sold for the taxes due for the year 1899. The bill further alleges as to complainant's title that on the 6th day of July, 1888, the state of Mississippi, under the provisions of an act approved March 2, 1888 (Laws 1888, p. 40, c. 23), to quiet title in the Yazoo Delta, conveyed all its right, title, and interest in and to said land to the Delta & Pine Land Company, and that the Delta & Pine Land Company quitclaimed to complainant all its right, title, and interest in and to said lands. The bill alleges that defendant Means claims title to part of said land under a patent issued by the state of Mississippi on January 24, 1900, and that defendant Allen claims title to the remain 36 SO.-17 ing portion under a patent issued to him by the state of Mississippi August 1, 1900. The bill charges that both of these patents are void; the state of Mississippi having conveyed all of its rights, title, and interest in and to the Delta & Pine Land Company in July, 1888. The defendant demurred to this bill, assigning the following cause of demurrer: In 1870 the land was not subject to sale for levee taxes, and not subject to assessment for taxes. This demurrer was overruled, and defendants appeal. S. R. Coleman, for appellants. Pollard & Hamner, for appellee. The TRULY, J. This case is controlled by the decision of this court in Paxton v. Valley Land Company, 68 Miss. 739, 10 South. 77, and we decline to disturb the rule of property which has grown out of that case. intent of the Legislature in enacting the several laws germane to this matter was to validate the title and make secure the possession of that large class of property owners in the delta of our state who hold under various sales for taxes made in years past. It certainly should not be the policy of the courts to disturb titles so quieted on account of any difference of opinion merely as to the correctness of past adjudications. In this class of cases, more than probably in any other, it is proper to observe and respect the wholesome doctrine of stare decisis, and follow the "broad and beaten way." Affirmed and remanded, with 60 days to answer after filing of mandate in the court below. (84 Miss. 230) OSTRANDER v. QUIN et al. (Supreme Court of Mississippi. April 11, 1904.) CONTRACT-INFANCY -MISREPRESENTATION OF AGE. 1. Willful misrepresentation of age by a minor, by which money is had of another on a mortgage, and which deceives the lender, is a bar to an avoidance of the mortgage in equity by the borrower, especially where the money is not tendered back. Appeal from Chancery Court, Lowndes County; J. F. McCool, Chancellor. Bill by Mary H. Ostrander against Clemmie Quin and another. From a decree in favor of defendants, complainant appeals. Affirmed. Betts & Sturdivant, Denton & Cox, and Frank Johnston, for appellant. Wm. Baldwin, for appellees. CALHOON, J. This record presents a bill by appellant to enjoin a sale of land by the trustee in a trust deed to secure appellee, without tender of the money had, on the ground that appellant was a minor when she made it. Mrs. Quin's answer sets up ignorance of the age of Mrs. Ostrander, and that |