Hargis v. Louisville Gas Co.

• Decision Date: 13 April 1893
• Citation: 22 S.W. 85
• Parties: HARGIS et al. v. LOUISVILLE GAS CO.
• Court: Kentucky Court of Appeals

22 S.W. 85

HARGIS et al. v. LOUISVILLE GAS CO.

Court of Appeals of Kentucky.

April 13, 1893

Appeal from Louisville chancery court.

Suit by Hargis & Eastin against the Louisville Gas Company. There was a judgment for defendant, and complainants appeal. Reversed.

Simrall & Bodley, Muir & Hyman, O'Neal, Jackson & Phelps, Thomas H. Hines, and Hargis & Eastin, for appellants.

Humphrey & Davie, Helm & Bruce, and Dodd & Dodd, for appellee.

LEWIS J.

Hargis & Eastin brought this action to recover of the Louisville Gas Company amount of the conditional fee stipulated for in the following contract: "The Louisville Gas Company agrees to pay Thomas F. Hargis & George B. Eastin, as assistant counsel, the sum of five hundred dollars certain, and without condition, as attorney at law in the appeal now pending in the supreme court of the United States between said company and the Citizens' Gaslight Company, and for their services in any other judicial proceedings which may be necessary to said case, the aforesaid sum to embrace and include all expenses the said Thomas F. Hargis & George B Eastin may be at personally. Said Louisville Gas Company further agrees to pay said Thomas F. Hargis & George B Eastin twenty-five thousand dollars, said amount to be paid on the 31st day of December, 1888, on the following condition: That if, by the determination of said appeal, or by any proceedings they may institute or aid in instituting for said company, the said Citizens' Gaslight Company shall be excluded from making and vending gas in the city of Louisville and to its citizens from the 1st day of October 1885, until December 31st, 1888. Jan. 10, 1885. Louisville Gas Company. Hargis & Eastin. Witness: George W Morris." In order to ascertain the proper meaning of that contract, and rights and duties of the parties, it is necessary to look to the character and attitude towards each other of the two rival gas companies, and also the cause of litigation between them then pending by appeal in the supreme court.

In 1869 a charter, being renewal of a previous one, was by act of the general assembly granted to the Louisville Gas Company, containing exclusive privilege of manufacturing and vending gas in that city for a period ending December 31, 1888. But in 1872 a charter was granted to Citizens' Gaslight Company, containing also privilege of manufacturing and selling gas there, though it was not exclusive. In 1879 the last-named company instituted an action in equity alleging that the claim of the former to the exclusive right to manufacture and supply gas in the city of Louisville cast a cloud over the plaintiff's title to its franchise, prevented it selling stock to raise money with which to work under its charter, and judgment was prayed for that defendant had no such exclusive right as asserted, and for an injunction restraining it from asserting such exclusive right. Upon final hearing, judgment was rendered dismissing the action. But, upon appeal to the court of appeals, that judgment was, June 10, 1883, reversed, and the cause remanded, with direction to the lower court to issue a perpetual injunction restraining defendant from claiming or exercising the exclusive right to manufacture and supply gas to the city and citizens of Louisville. Fifty-nine days thereafter a writ of error to the supreme court of the United States was sued out; but no supersedeas was applied for or issued, and consequently the mandate of the court of appeals was sent to the lower court, and judgment was there entered as indicated in the opinion delivered. The case thus stood on the supreme court docket when the contract here sued on was made, and it seems to be conceded it would have probably remained undisposed of for two or three years longer, if not to the end of the period for which the Louisville Gas Company was chartered, but for the order to advance the case for trial that will be hereafter considered. The evidence shows it was at date of the contract in question very important for the Louisville Gas Company to have an early decision by the supreme court, and also in the mean time, using language of the contract, to exclude the Citizens' Gaslight Company from making and vending gas in the city of Louisville and to its citizens, which it was then preparing and at liberty to do; for not only was stock of Louisville Gas Company depreciated on account of suspense and uncertainty about the supreme court decision, but competition with the rival company would probably, and did in fact subsequently, cause price of gas to be lessened. Besides, it was important to have the Citizens' Gas Company destroyed or so crippled by that decision as to be out of the way when needed legislation was to be applied for. In view of these circumstances, there need be no serious question about the true meaning and purpose of the contract, if the language was not itself too plain to be misunderstood.

Though by the terms of the contract, Hargis & Eastin were, for the certain fee of...