201 Ky. 267 | Ky. Ct. App. | 1923
Opinion op the Court by
Affirming.
Appellant, Holman, as assignor and successor of the Princeton Electric Light and Power Company, commenced this action in the Caldwell -circuit court to recover $3,000.00 upon the following writing.
“The Princeton Electric Light and Power Company.
“Gentlemen:
“In consideration of the conveyance which you have this day made to the undersigned, Kentucky Light and Power Company, of certain property and franchise formerly belonging to your company, the undersigned, Kentucky Light and Power Company, hereby agrees that if and when at any time on or before, but not after, December first, 1920, your company shall have secured fo.r the*268 undersigned company, or the undersigned company shall have secured for itself, a legal and binding twenty-year franchise for the operation of an electric light plant and electric distributing system in the city of Princeton, Kentucky, equal in terms of your present franchise, or such as the undersigned will accept, the undersigned company will pay to your company the sum of three thousand ($3,000.00) dollars in cash.
“Dated August twenty-second, 1918.
“Kentucky Light and Power Company.
By Ohekeve Poster, Vice President. ’ ’
A general demurrer was sustained to the petition as amended, and upon appellant’s failure to further plead his cause was dismissed and he appeals, insisting that the averments of his petition are sufficient to constitute a cause of action in his favor. The petition and amendments in substance aver that in 1916 the Princeton Electric Light and Power Company, a corporation, sold and transferred its electric plant situated in Princeton, to the Kentucky Light & Power Company for the consideration of $48,000.00, all of which has been paid except that which is due under the foregoing writing; that the company has failed and refused to pay the $3,000.00 represented by the writing; that appellant Holman is the sole owner of the writing and entitled to the benefits thereof; that at the time of the sale of the plant to the appellee company said company employed appellant Holman to manage and operate its plant for it, and it was agreed between plaintiff and the defendant that the plaintiff should assist the defendant in procuring a franchise from said city (Princeton), but that the said ~W. J. Holman’s connection with the defendant was severed long before the expiration of the old franchise and that the defendant wrongfully, fraudulently and purposely failed and refused to apply for or make any effort to procure a franchise prior to the first day of December, 1920, and has since said date persistently and continuously and for the purpose of defrauding the plaintiff out of the said sum of $3,000.00, failed and refused to accept any franchise from said city that would be fair to said city, or that the said council for said city would grant or sell, and that the president of the defendant company stated to members of the city council who called to see him regarding the securing of the franchise for the de
All facts well pleaded in the petition must be taken for true upon the demurrer, but the pleading as a whole must be construed strongest against the pleader.
There is no averment in the petition or amended petition showing that the appellant Holman or his predecessor, Princeton Electric Light and Power Company, obtained a franchise from the city of Princeton or attempted to obtain such a franchise for the use and benefit of the appellee company previous to the first day of December, 1920, or at any time.
A careful examination of the writing which is the basis of this action discloses that it was given solely and alone for services to be rendered by appellant Holman and the Princeton Electric Light and Power Company, one or both, in procuring and aiding in procuring for appellee company a renewal of its franchise to operate an electric light and power plant, or a new franchise of equal terms to the old one, and was not executed in consideration of a conveyance of the electric plant by the Princeton Electric Light and Power Company to the Kentucky Light and Power Company. The conveyance had taken place before the execution of the writing shed on and the $3,000.00 proposed to be paid was conditioned upon the appellant and his predecessor, one or both, aiding and assisting the appellee company in procuring a new franchise or an extension of the old one. In so far as the averments of the petition as amended show appellant did nothing whatever to assist in procuring such a franchise for the appellee company; nor did the Princeton Electric Light and Power Company aid or assist in this work, and appellee company obtained no franchise from the city to operate its electric plant in the city until after the expiration of the period fixed in the writing,
In a contract like the one sued on both parties are equally obligated to bring about the event named, and if neither party discharged that obligation neither can complain of the failure of the other in that respect. Appellant was equally obligated with the appellee company to procure the granting of the franchise. The duty rested upon him as assignor and successor to the Princeton Electric Light and Power Company in the same way and manner that it rested upon the appellee company. He failed to meet or perform his duties, and having failed to do so he is in no position to complain of the failure of another similarly bound with him to perform a like duty.
There is another reason equally as potent as the one above assigned why appellant is not, on the averments of his petition, entitled to recover on the writing. It was an executory contract without consideration except the promise of appellant Holman and his predecessor to obtain for appellee company or to assist in obtaining, some time in the future, a franchise for appellee company. No other consideration is averred; the writing itself shows clearly that appellant and his predecessor, Princeton Electric Light and Power Company, undertook to render aid and assistance in procuring, or to procure, a franchise for the appellee company. Neither appellant Holman nor his company did anything so far as the record shows to bring about the granting of such a franchise and none was granted. Clearly the consideration failed and appellant is not, for this reason, entitled to recover.
The petition as amended did not state a cause of action in favor of appellant Holman, and the trial court properly sustained the general demurrer thereto.
Judgment affirmed.