City of Holly Springs v. Manning & Watson

Campbell, J., delivered the opinion of the court. Our construction of the contract out of which this suit has grown is that, as a suit had been instituted against the plaintiif in error, which, it was assumed, involved the liability of the city on its subscription, and bonds issued in payment of its subscription, to the amount of $75,000, to the capital stock oi the railroad company named in the contract, therefore, in order to test the question of its liability in that respect, the corporate authorities,of said city employed the counsel named in the contract to defend the suit brought in the United States Court at Oxford, “ and all such other legal proceedings as may be instituted within said Northern District of the state of Mississippi to collect said bonds, or any part thereof, or the interest upon the same, and to continue their services in defense of. said- suit or suits in the Supreme Court of the United States, at Washington, should the same become necessary,” and they paid said counsel $1,000 as a cash payment, and agreed to pay them the necessary expenses of a trip to Washington, if it became necessary for them to go there to attend to the litigation; and stipulated further, ‘‘'when the litigation aforesaid shall have been brought to a close, to pay the said [counsel] such further sum for their said services, in defending said suit or suits, and in attending to said litigation, as may be fair, reasonable, and just, under all the circumstances.” The $1,000 paid was only a retainer, and not in full for the suit already brought. The counsel were engaged to attend to that suit to its close, and to all others of the kind named which might be instituted in the Northern District of Mississippi. A resort to the Supreme Court of the United States was contemplated, and the expenses of a trip there were pro [388] vided for, but no further payment was to be made by the city until ‘ ‘ the litigation aforesaid shall have been brought to a close.” Then the counsel were to be paid “ such further sum ■for their said services in defending said suit or suits * * * as may be fair, reasonable, and just, under all the circumstances.” When “said suit” was brought to a close, the counsel employed were to be paid such further sum for their services in defending it as may be fair, reasonable, and just, under all the circumstances. What sum that should be is determinable by the importance of the contest, the labor and responsibility of counsel, and' every circumstance attending the cause which, according to established usage, serves to guide to a conclusion as to what is a proper professional charge in such a state of circumstances. This action was brought prematurely. The suit plaintiffs were employed to defend had been decided in the District Court of the United States at Oxford, and no writ of error had been taken, but the time for suing out a writ of error had not expired. Certainly, with reference to the contract between the city and the counsel, which stipulates for attention to the suit in the Supreme Court of the United States, it cannot be claimed that said suit had ended before the time for pursuing it in the Supreme Court had expired. If said suit has now ended, no obstacle exists to the institution of their suit by the defendants in error to recover for their services such sum as may be fair, reasonable, and just, under all the circumstances. The declaration was demurred to, and the demurrer was overruled, and pleas were filed, and issues joined on some, while demurrers were sustained to others, and the issues of fact were tried by a jury. We have not considered the several questions arising out of the action of the court upon the demurrers, because we suppose that the views already expressed will dispose of this case, and will control in any suit hereafter instituted to enforce the claim asserted in this. The instructions to the jury correctly expound the law, ex [389] cept in so far as they maintain the right of plaintiffs below to sue under the contract before the final termination of the suit brought in the United States District Court at Oxford, by a determination of it in the Supreme Court of the United States, or the lapse of. sufficient time to bar a resort to that court. Judgment reversed and cause remanded.