entered should be modified as prayed in the petition. That the arrangement made by relators with Ayres to be reimbursed for moneys advanced by them, and for pay for their service in prosecuting the suit from the proceeds of the judgment which should be obtained in the case, operated as an assignment of the judgment to relators to the extent of those claims, and until they have received their pay, the plaintiff could give no valid discharge of the judgment. Kinney v. Tabor, 62 Mich. 517, 29 N. W. 86, 512; Potter v. Hunt, 36 N. W. 58; Wells v. Elsam, 40 Mich. 218; Andrews v. Morse, 31 Amer. Dec. 752, and notes; Weeks, Attys., sec. 369; Hutchinson v. Howard, 15 Vt. 544. That it is true courts as a rule look with favor upon a compromise and settlement made by the parties to a suit with the consent of all persons concerned, to prevent the vexation and expense of further litigation; but the rule only applies where the rights and interests of all the parties concerned, both legal and equitable have all been respected, and in good faith observed. Parties cannot assume that attorneys have no rights, without inquiry. The present does not disclose such a case, and the writ prayed for must be granted."

Roberts & Hallam, for appellee.

So far as the motion to dismiss the appeal of Mollie Roach Ridgway is concerned, the motion is made under Rule 23 of the Revised Rules of the supreme court, and the affidavits attached to the motion show that the appeal has been taken without the authority of Mollie Roach Ridgway, and in fact, against her protest. For this reason, the appeal as to her obviously should be dismissed.

No other persons were petitioners in the court below than Mollie Roach Ridgway. Messrs. Somerville & Somerville and Dabney & Dabney were not parties to

the proceeding in the court below, but the cause was tried solely on the petition of Mollie Roach Ridgway, which will be found commencing at page 28 and ending on page 33 of the record. Therefore, Messrs. Somerville & Somerville and Dabney & Dabney, not being parties to the trial in the court below, could not appeal from the decree there rendered. Besides this, if it could possibly be said that these gentlemen were properly parties in the court below merely because they signed the petition as solicitors for Mollie Roach Ridgway, which is not admissible, they were such only in their firm names, it not being made to appear from the pleadings who composed the firm of Somerville & Somerville or who composed the firm of Dabney & Dabney the motion is therefore also well taken.

For the reasons indicated, we submit that both motions should be sustained and the appeals in this case dismissed.

SMITH, C. J., delivered the opinion of the court.

This is an appeal from a decree dismissing a petition praying that an executor be directed to distribute the decedent's estate in accordance with the terms of his will.

Samuel Jones by his last will and testament devised all of his property to his four children, one of whom is the appellant Mollie Roach Ridgeway, and appointed the appellee, F. J. Jones, as his executor, who duly qualified and proceeded to the discharge of his duties as such. Mollie Roach Ridgeway, having failed to obtain what she considered to be her portion of her father's estate, employed Messrs. Dabney & Dabney and Somerville & Somerville, attorneys at law, to obtain the same for her, and to institute whatever legal proceedings might be necessary therefor, executing to them as compensation for their services an assignment of a one-third interest in the

personal property and one-half interest in the real property to which she might be entitled. Pursuant to their employment these attorneys filed a petition for Mollie in the court below, praying for the payment of the administrator to Mollie of her share of the money alleged to have come into the administrator's hands as a part of the testator's estate.

When this petition came on to be heard it was dismissed by the court below, and Dabney & Dabney and Somerville & Somerville for themselves prayed for and were granted an appeal to this court. These attorneys were not otherwise made parties to the record in the court below. The assignment to them of an interest in her portion of her father's estate by Mollie hereinbefore referred to was filed along with the papers in the case. Afterwards a hond for an appeal to this court was executed with Mollie Roach Ridgeway, Dabney & Dabney and Somerville & Somerville as, principals therein. Mollie Roach Ridgeway's name being signed thereto by "Somerville & Somerville, attorneys."

The cause now comes on to be heard on two motions filed by the appellee. The first motion sets forth that Dabney & Dabney and Somerville & Simerville are without authority to prosecute this appeal on behalf of Mollie Roach Ridgeway, prays that they be directed to disclose their authority therefor, and in event of their failure so to do that the appeal of Mollie Roach Ridgeway be dismissed. The second motion prays for the dismissal of the appeal as to Somerville & Somerville and Dabney & Dabney for the following reasons:

"(1) The said Somerville & Somerville and Dabney & Dabney were not parties litigant in the court below, and are therefore without legal right to prosecute an appeal to this court from the decree rendered in the court below. "(2) The firms of Somerville & Somerville and Dabney & Dabney are each copartnerships who can sue only in

the names of the individual partners, and no suit has been filed by said partners on account of said partnerships in which any decree has been rendered from which、 this appeal is prosecuted."

It appears from the evidence submitted on these motions that after the rendition of the decree appealed from Mollie Roach Ridgeway instructed her attorneys not to appeal therefrom, and that they now have no authority to represent her except such as results from the assignment by her to them of an interest in her portion of the estate. Under the provisions of chapter 134, Laws of 1916 (section 497, Hemingway's Code), the assignee of any interest in a chose in action may begin, prosecute, and continue any suit or action thereon in the name of the assignor, in which right is necessarily embraced that of an appeal to this court. Consequently Dabney & Dabney and Somerville & Somerville, the assignees herein, have the right to prosecute this appeal in the name of Mollie Roach Ridgeway, the assignor, without any other authority from her so to do than the assignment itself. The motion to dismiss the appeal will therefore be overruled.

Dabney & Dabney and Somerville & Somerville cannot, of course, appeal in their own names for two reasons: First, they did not join in the petition in the court below as they might have done; and, second, the appeal, if otherwise allowable, should have been in their individual and not partnership names. Including their names in the appeal bond, however, was mere surplusage.

Overruled.

INGRAM DAY LUMBER CO. v. KOLA LUMBER Co.

[84 South. 693, In Banc. No. 21129.]

WAR. Circumstances in evidence held not to excuse performance of a contract to manufacture and deliver lumber.

Plaintiff sued for the nonperformance of a valid contract in writing whereby the defendant agreed to manufacture and deliver lumber of certain agreed sizes and dimensions within a stipulated time. The defendant pleaded impossibility of performance on the ground that in time of war the United States Shipping Board Emergency Fleet Corporation served written notice upon the defendant to place at the disposal of said corporation all lumber and timber of certain dimensions, including a material portion of the sizes covered by the contract sued on, and to refrain from selling or disposing of such lumber unless authority was first obtained from the said Emergency Fleet Corporation or the priority committee of the War Industries Board. The defendant did not apply for a permit or authority to comply with its contract either from the United States Shipping Board Emergency Fleet Corporation or the priority committee of the War Industries Board.

Held, under the circumstances in evidence, that performance of the contract sued on was not excused.

APPEAL from the circuit court of Covington county. HON. W. H. HUGHES, Judge.

Suit by the Ingram Day Lumber Company against the Kola Lumber Company. Judgment for defendant on a directed verdict, and plaintiff appeals. Reversed, and judgment entered for plaintiff.

M. S. Conner and White & Ford, for appellant.

We will now consider the law pleaded by appellee as an excuse for non-performance. See Act June 15, 1917, section 3115, 1/16 D. U. S., Complied Statutes, temporary supplement, 1917, chapter 29. From this act it will be noticed that Congress does not itself attempt to impair