Louisville Gas Co. v. Hargis

• Citation: 33 S.W. 946
• Parties: LOUISVILLE GAS CO. v. HARGIS et al.
• Decision Date: 31 January 1896
• Court: Court of Appeals of Kentucky

33 S.W. 946

LOUISVILLE GAS CO. v. HARGIS et al.

Court of Appeals of Kentucky.

January 31, 1896

Appeal from chancery court, Jefferson county.

"Not to be officially reported."

Action by Thomas F. Hargis and another against the Louisville Gas Company. There was a judgment for plaintiffs, and defendant appeals. Reversed.

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

P. B. &amp Upton W. Muir, Simrall, Bodley & Doolan, Thos. F. Hargis, and Thomas H. Hines, for appellees.

LEWIS J.

Hargis & Eastin brought this action to recover of Louisville Gas Company amount of the conditional fee mentioned in the following contract: "The Louisville Gas Company agrees to pay Thomas F. Hargis and George B. Eastin, as assistant counsel, the sum of five hundred dollars, certain, and without condition, as attorneys 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 and George B Eastin may be at personally. Said Louisville Gas Company further agrees to pay said Thomas F. Hargis and 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 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 31, 1888. January 10, 1885. Louisville Gas Company. Hargis & Eastin. Witness: George W. Moris." The action was, however, by the lower court dismissed absolutely; but, upon appeal to this court, the judgment was, April 13, 1893, reversed, and case remanded,-the chancellor being directed to fix value and allow for services of plaintiffs in procuring or causing the case to be advanced and tried in the supreme court, as well as for advice and services in respect to the action for an injunction. See 22 S.W. 87. Now, this is an appeal by defendant from a judgment of the chancellor in favor of plaintiffs for $13,000, value of their services, fixed after hearing evidence in regard thereto, with interest from May 13, 1889, until paid.

It is conceded that the Citizens' Gaslight Company was not excluded from making and vending gas in the city of Louisville and to its citizens from the 1st day of October 1885, and, consequently, plaintiffs are not entitled to recover the full amount of conditional fee stipulated in the contract. But the written contract shows the parties had in view two modes by which to so exclude the Citizens' Gaslight Company,-one by determination of the appeal pending in the supreme court; the other, by a proceeding which, as otherwise appears, was to be an application for an order of supersedeas,-and it is put beyond dispute that, as a result of the effort, advised by plaintiffs only, and in conjunction with others made, to obtain an order of supersedeas, the case was advanced and set for hearing on November 1, 1885, and actually determined in favor of the Louisville Gas Company a few more than 60 days after October 1, 1885, and more than three years before the expiration of its charter, on December 31, 1888, renewal of which, with continuation of exclusive right to make and vend gas in Louisville, was of vital importance, though scarcely possible unless the Citizens' Gaslight Company could, in the meantime, be judicially destroyed. But, after the order to advance the case was entered, though it was the result of efforts made by plaintiffs in good faith, and for benefit of their client, other further proceedings to exclude the Citizens' Gaslight Company by October 1, 1885,...