One Lyons, was the owner of a policy issued by the Zurich General Accident & Liability Insurance Co. covering legal liabilities for injuries or death while operating'his automobile. In 1921 Lyons was sued for $1000 by one Schmidke for damages sustained. There was a clause in the policy whereby the Insurance Co. was obliged to defend the insured in case of accident. The record showed that Lyons retained Dorr E. Warner, but with the understanding that the Insurance Co. was to pay the attorney’s fees and not Lyons.

Warner performed certain services which were absolutely necessary in defending Lyons in the suit brought by Schmidke. Warner submitted the history of the case and the facts to the Cleveland attorneys of the Insurance Co., but it does not appear that Warner submitted all the facts to the Insurance Co. before a certain conference was had with the Cleveland attorneys for the Insurance Co.

The case instituted in the Cleveland Municipal Court was decided in favor of Warner. Error was prosecuted by the Company and the Court of Appeals held:

1. Warner, as a practicing attorney, had a right to charge for any professional services rendered to the attorney for the Insurance Co. upon request.

2. The record does not show what the charges were for the services, nor does it show what they were reasonably worth.

3. No express or implied agreement to pay for such services, by the Insurance Co. was shown; nor is there anything in the record to show a ratification or waiver by Warner or the Insurance Co. as to services performed before the conference with the attorneys of the Company.

4. The pleadings do not bear out the assumption that the Insurance Co. was liable for the attorney’s fees because it acquiesced in and accepted the benefit of the services.

5. The case was not tried upon this theory and the pleadings and record do not warrant it.

Judgment reversed.