Breathitt Coal, Iron & Lumber Co. v. Gregory

• Decision Date: 22 January 1904
• Citation: 78 S.W. 148
• Parties: BREATHITT COAL, IRON & LUMBER CO. v. GREGORY.
• Court: Kentucky Court of Appeals

78 S.W. 148

BREATHITT COAL, IRON & LUMBER CO. v. GREGORY.

Court of Appeals of Kentucky.

January 22, 1904

Appeal from Circuit Court, Kenton County.

"Not to be officially reported."

Action by F. D. Gregory against the Breathitt Coal, Iron & Lumber Company. Judgment for plaintiff, and defendant appeals. Reversed.

S.D Rouse and W. A. Price, for appellant.

B. F Graziani, for appellee.

NUNN J.

This action was brought by appellee against the appellant to recover attorney's fees. He alleged that he was employed by appellant to assist in the prosecution of two suits in the United States Court at Covington, Ky. in each of which actions the appellant was plaintiff, and in one of the suits E. H. McTrain was defendant, and in the other Arthur D Bright. With reference to his services he alleged as follows "He says it was thereupon agreed between the defendant and the plaintiff that in case defendant succeeded in the actions it was to pay this plaintiff for his services the sum of $500, and in case the actions were decided adversely to defendant, then defendant was to pay this plaintiff the sum of $150. The defendant did thereupon pay to plaintiff as a retainer the sum of $100." He further averred that before the termination of these suits in the United States court he was superseded by other attorneys, and was prevented from carrying out his contract in prosecuting these two actions, and asked judgment for $400, the balance due him on his contract. In another paragraph he alleged that the appellant, by its president, employed him to aid in making a sale of the company's property to a syndicate; that it was about to sell and convey by deed, when under his advice the stockholders were induced to sell and transfer their stock, and in this way avoided making a conveyance, which was greatly to the interest of the company, as it owned 129,000 acres of land in Breathitt and Knox counties, and several thousand acres of it were in the actual possession of persons who professed to have some kind of a claim on same, and, if a conveyance by deed had been made, the plea of champerty could have been interposed and maintained. That he gave much of his time and attention to this matter for appellant from about the 1st of May to the 15th of July, and drew the contract of the sale of stock, which realized for the company, $70,000 and that the syndicate, "Unger & Co.," not only paid the $70,000, but also agreed to assume and pay all the liabilities of the company, including all attorney's fees. That for his services as attorney in this matter, considering the successful termination of same, he claimed and asked judgment for $5,000. Appellant answered, admitting the contract as alleged in the first paragraph of the petition, but denied that it was indebted to appellee in the sum of $400, or any sum in excess of $50, but alleged that appellee did not prosecute the two actions named to a successful termination. Appellant denied that appellee was employed to represent it in the matter of disposing of its property, or that he represented it in that matter, and alleged that his only employment was with reference to the two suits named in the first paragraph. The issues were completed, a jury trial was had, and resulted in a verdict and judgment for appellee in the sum of $400 on the first paragraph of the petition and $3,000 on the second paragraph,...