1. Plaintiff's petition stated a cause of action.

2. Where plaintiffs and defendant compromise the cause of action after commencement of the suit without consent of plaintiffs' attorney and the attorney thereafter prosecutes the suit in his clients' names for the recovery of his attorney's fees, the attorney must establish the plaintiffs' right to recover on the state of facts existing before the compromise. He cannot invoke the compromise agreement for the purpose of proving the plaintiffs' right to recover.

R. O. Cannon, Jacob B. Fannin and Dr. Charles F. Goosby brought this suit upon a promissory note against Leon L. Bennett. In his answer defendant denied all the paragraphs of plaintiffs' petition. Thereafter defendant filed an amendment alleging an agreement of accord and satisfaction entered into on December 9, 1964, after commencement of the suit and another amendment alleging failure of consideration. Upon motion of Merrell Collier, plaintiffs' attorney, alleging that the agreement of December 9, 1964, was made without Collier's consent, the court granted Collier leave to continue prosecution of the case in plaintiffs' names "for use of Merrell Collier as plaintiffs' attorney and for satisfaction of his attorney's lien and payment of his fees that may he due in the above case." Defendant thereupon withdrew his amendment alleging accord and satisfaction. Through the nominal plaintiffs, Collier then moved for summary judgment in his favor. On this appeal defendant enumerates error upon the judgments of the trial court overruling defendant's renewed general demurrer to plaintiffs' petition and granting summary judgment for plaintiffs. No question is presented on this appeal as to the correctness of the trial court's rulings allowing defendant's amendments over plaintiffs' objections and granting attorney Collier's motion to continue prosecution of the case.

2. On motion for summary judgment plaintiffs' attorney demonstrated by supporting affidavits that after commencement of the suit plaintiffs and defendant, by mutual agreement without the consent of the attorney, modified the terms of the note as to the amount and date of payment of installments upon the balance due, and defendant paid plaintiffs substantial sums in reduction of the balance. The attorney contends that in entering into the settlement agreement with plaintiffs, defendant obtained an extension of the time of payment of the note and thereby waived the defense of failure of consideration, of which he had knowledge at the time of the agreement. See, e.g., Reeves Tractor &c. Co. v. Barrow, 30 Ga. App. 420 (6) (118 SE 456).

"After suit has been filed upon a cause of action, the suit and cause of action must be treated as one, and there can be no substantial separation; and although the cause of action may be settled before the suit has been filed, after the filing of the suit no person, whether party litigant or third person, can settle the suit or the cause of action so as to defeat the lien of the attorney for his fees; and the attorney, notwithstanding any settlement of the cause of action, has the right to prosecute the suit, in the name of his client, for the recovery of his fees," Pharr v. McDonald, 180 Ga. 777, 782 (180 SE 844); Georgia R. &c. Co. v. Crosby, 12 Ga. App. 750 (78 SE 612); Code 9-613 (2). Before the attorney can establish his right to contingent fees, he must first establish his client's right to recover against the defendant. For this purpose, he cannot resort to the compromise agreement to aid him in proving the client's right, for the compromise agreement is opposed to the client's right. In continuing prosecution of the case, Collier in effect denied the validity of the compromise, at least as to his interest in the case. He cannot now be heard to take the inconsistent position that the compromise was effective as a waiver of his adversary's defenses. Collier must establish the plaintiffs' right to recover on the state of facts existing before the cause of action was compromised. See Rodgers v. Furse, 83 Ga. 115, 123 (9 SE 669).

The trial court erred in granting summary judgment for plaintiffs.