to go to Frankfort, it was agreed between them that appellee Hallam should also be employed. Appellant went to Frankfort, accompanied by his bondsn en, prepared in advance to give any bond which might be required of him. Upon their arrival in Frankfort Gen. P. Watt Hardin was associated with appellee as 'appellant's counsel. In company with his counsel appellant appeared before the justice at the time fixed for the examination; whereupon it was indicated by the magistrate that it was his custom in cases pending before him when the grand jury was in session to at once hold the party charged over for their action; and as the grand jury of Franklin county was then in session, he proposed to follow his usual rule. This was opposed by counsel for appellant, who insisted on a trial of their client, the evidence showing that a speech of about five minutes was made upon the question, at the conclusion of which the justice held appellant over in a bond of $10,000 for his appearance before the grand jury.

Afterwards the grand jury indicted appellant upon a charge of bribery. To meet this charge appellant again returned to Frankfort, at which place he received information from a friend of certain matters showing irregu larity in the formation of the grand jury which returned the indictment against him. This information he conveyed to his attorneys, who thereupon moved the court to quash the indictment. As soon as this motion was made Commonwealth's attorney, Robert B. Franklin, moved the court to dismiss the indictment against appellant, and again refer the matter to the grand jury, which was done. No further indictment was ever had against appellant, and the proceedings against him, so far as the Franklin Circuit Court was concerned, ended.

Pending these proceedings in the courts the general assembly passed a joint resolution for the appointment of a committee to examine into the transaction which had taken place between appellant and Senator Harrell. No committee, however, was ever appointed under this resolution, and no further action was ever had in the premises. As a counterstroke against Harrell there was caused to be issued from the police court of the city of Louisville a warrant against Senator Harrell, charging him with obtaining money from appellant under false pretenses. Appellee then went to Louisville, and there, in conjunction with J. T. O'Neal, argued before the court the motion of Harrell to dismiss the warrant against him. This motion was overruled by the court, and Harrell was held over to the grand jury of Jefferson county, which afterwards, upon an examination of the facts, refused to indict him. A motion was then made before the judge of the Jefferson Circuit Court, Criminal Branch, to resubmit the question to another grand jury, which, after elaborate argument, was overruled. This ended the proceedings against Harrell.

The appelant then desired to recover from the trust company the $4,500 deposited by him, and which was locked in one of its boxes; the trust company declined to turn the money over without a judgment of a court to protect it in so doing; whereupon appellant, through his counsel, filed a formal suit against the trust company, which filed an answer; and after certain formal proceedings had been taken a judgment was rendered in favor of appellant, and the money paid over to him.

Afterwards J. T. O'Neal, appellee and Gen. P. Watt Hardin agreed

among themselves on a fee of $1,000 each for their services. The fee of Gen. Hardin, for reasons not necessary to be set forth, was, by his consent, reduced to $750, which was paid him. O'Neal received a check for $1,000, in full for his services. Afterwards appellant enclosed in a letter to appellee his check for $863.71. The letter is as follows:

"Mr. Theo F. Hallam,

"Covington, Ky.:

"Friend Theo-I enclose you a check for $862.71, which is for fees stipu lated, $1,000, less the following cash items, amounting to $137.29:

“I assure you, old pard, that it gives me pleasure to send you this check, and I trust we may outlive the Goebel business, and that you may be able to earn more fees, and they could not be too large to suit me.

"I want you to feel that there is no time, night or day, that I will not be pleased to be called upon by you, and that it will always be a great pleasure for me to serve you in any capacity.

"I would very much like to see you before starting on our trip to Europe, incidentally to learn a little English; for, as you remarked, when you were last here, we have Irish, Dutch and French in our party, and only need one who can speak a little English.

"Kindly return receipt for $1,000, and always believe me to be your friend. (Signed) J. H. WHALLEN."

After appellant returned from the trip to Europe, which is alluded to in the letter, appellee demanded of him the sum of $9,200, as an additional fee for his services rendered appellant in the criminal proceedings herein recited. Payment of this demand being refused, this action was instituted in the Jefferson Circuit Court to recover it by law. The petition is in four paragraphs. The first sets up a claim for $1,000 for appellee's services in the matter of the warrant against appellant before 'Squire G. B. Thompson; the second, a claim for $5,000 for services rendered in the matter of the indictment pending in the Franklin Circuit Court; the third, a claim for $3,000 for services in watching appellant's interest in the matter pending in the general assembly, under the resolution passed to investigate him; the fourth, a claim for $200, being appellant's expense account incidental to the services rendered by him.

Appellant's answer denied his indebtedness to appellee in any sum whatever, and placed in issue the reasonableness of the charges against him, and also pleaded payment in full for all services which had been rendered. A trial of the case resulted in a verdict against appellant for the sum of $1,000, of which he is now complaining Appellee's contention is that the $1,000 he received was for his services in Louisville only; appellant's, that the pay ment was in full for all services whatever.

The conclusion we have reached as to the reasonableness of appellee's charge against appellant, and the merits of the plea of payment, renders it unnecessary for us to discuss the many technical questions raised by appel

lant, further than to say that, other than as herein indicated, we perceive no substantial error in the record. Appellee states, at great length, in his evidence that he stayed in Frankfort the whole month of January, watching the interest of appellant, at his instance and request; and he describes in detail his many labors by day and night in the library, examining many books, in order to prepare himself to fully represent his client's interest. But the fact remains that, at most, appellant was charged with a misdemeanor, the punishment of which is fine and imprisonment, and we are unable to perceive why it was necessary for appellee to examine many books, or to remain in Frankfort, to watch the proceedings of the grand jury, or those of the general assembly. Of necessity he could do nothing, as attor ney, before the grand jury indicted his client. As well said by the Commonwealth's attorney in his evidence, appellee could not practice law before the grand jury, and, as that body did not return a second indictment against appellant, we are at a loss to find a foundation for any charge on this score, except the service of preparing and entering the motion to quash the indictWe are equally at a loss to perceive any foundation for the charge for the service alleged to have been rendered in watching the legislature; for, other than the passing of a resolution for the appointment-of a committee to investigate the conduct of appellant, nothing was ever done in the matter. It does not appear that anything was done to prevent action on the part of the legislature.

ment.

The action to recover the sum of $1,500 was merely formal, and was required as a matter of caution by the trust company for its protection. Harrell made no claim to this money; on the contrary, his position was that it constituted a proffered bribe, which he had refused; the trust company did not claim it; its holding was that of bailee. Indeed, from the very necessity of the case, no one but appellant could have asserted any claim to it. The formal action by which the money was regained from the trust company, and the proceedings in Frankfort before mentioned, and the argument made in the proceedings against Harrell, constituted the whole service rendered by appellant's counsel in the matter against him. For this, it is admitted, he had paid his counsel, in the aggregate, $2,750; Gen. Hardin for his services accepted the sum of $750; J. T. O'Neal received $1,000, stating in his deposition that, although he had performed the larger share of the work, he felt that he had been most "liberally paid, and was happy;" and appellee has been paid $1,000.

Appellee introduced no evidence except his own as to the value of his services; on the other hand, appellant introduced seven or eight attorneys, all of whom stand high at the bar, one being an ex-chief justice of this court, none of whom placed a higher value upon all of appellee's services than from $1,000 to $1,200, most of them naming a far lower sum.

We do not believe there was any necessity for appellee to remain in Frankfort, either to watch the proceedings of the grand jury or of the legislature, a preponderance of the evidence, as well as the dictates of ordinary judgment, show the inutility of this; besides, there is record evidence in the case showing his admission that he stayed in Frankfort during the month of January on a different matter.

After a careful examination of this record we are constrained to the opin

ion that the verdict against appellant is palpably against the weight of the evidence, and that the amount received by appellee was ample remuneration for his whole service. For this reason the judgment is reversed for proceedings consistent herewith.

Whole court sitting.

HENDERSON BREWING CO. v. FOLDEN.

(Filed November 13, 1903-Not to be reported.)

1. Variance-Action for damages-Where the allegation of the petition in an action for damages for personal injuries alleged that the injuries were caused by the "negligent construction of said machine, or appliance, and by the negligent arrangement made by defendant for operating same," and the proof tended to show that the machine or appliance had become defective from long use, there was not a material variance between pleading and proof.

2. Practice on appeal-No attempt having been made in the lower court to have the alleged variance corrected and no intimation being made that the defendant was misled thereby, this court will not consider it as a ground for reversal.

3. Motion for new trial-Where the motion for new trial does not contain the ground that the verdict was contrary to the evidence this court can not consider the question as to the evidence.

W. J. Peter and O'Neal & O'Neal for appellant.

James M. Yeaman and Yeaman & Yeaman for appellee.

Appeal from Henderson Circuit Court.

Opinion of the court by Judge Barker.

The appellant is a corporation engaged in brewing beer in Henderson, Ky, and also operates, in connection with its brewery, an ice plant. The appellee was employed, as he himself describes, as a general roustabout, his business being, generally, to wheel out ashes and cinders, and other like work. On the occasion involved in this litigation he had been ordered by the appellant's superintendent to operate the crane, which lifted the frozen cans containing the ice from the receptacle in which the water was congealed, and by means of this machine to carry the cans to a point called the dump, where the ice was taken from the cans. Each of these cans, when filled with water, weighed about 300 pounds. The means by which the cans were attached to the windlass, or crane, was a hook fastened in holes driven on each side of the can for that purpose.

Appellee had assisted in this work before on several occasions, but had never operated the windlass, or crane, alone prior to the night on which he was hurt. When he came to lift the can, by the falling of which he was hurt, he adjusted the hook, and by means of the windlass lifted the can partly out of the receptacle in which it had been frozen; before it was entirely out the hook slipped, and the can fell back to its place. Appellee readjusted the hook, and then successfully lifted the can from its place, and was propelling it on the road to the dump when the hook again slipped, and the can fell upon his foot, seriously and permanently injuring him.

To recover damages for the injury sustained this action was instituted by

appellee, and upon trial before jury he recovered the sum of $1,000, of which appellant is now complaining. It is seriously urged that there is a fatal va riance between the allegation of the petition and the proof; this variance consists in this: The allegation in the petition sets forth the negligence of the appellant as follows: "The said injury was caused by the negligence of the defendant, and by its negligent construction of said machine, or appliance, and by the negligent arrangement made by defendant for operating same.” The evidence tended to establish the fact that the hooks had been worn smooth by use, and thereby made unsafe for the purpose of lifting the cans. Appellant insists that there is a variance between the allegation that the construction or arrangement of the machine or appliance was defective and the evidence that it had become defective by long use, it being insisted that the language of the petition means the original construction or arrangement of the machine was defective. It seems to us that this is an overstrained construction of the language used in the petition. We think it fairly means that the construction or arrangement of the machine or appliance for lifting the ice cans was defective at the time appellee was ordered to operate it; but even if this were not true, the variance is not a failure to establish the cause of action in its general scope and meaning, which is contemplated by section 131 of the Code, and held to be a failure of proof, and fatal; and if it be a variance at all, it is such a one as comes within the purview of sections 129 and 130 of the Code, and which are held to be immaterial, and which the court is authorized to amend according to the justice of the case.

The very question urged here arose in the case of Woodcock v. Farrel, I Met., 437. The sections of the old Code which were discussed in the case cited are identical with sections 129, 130 and 131 of the Civil Code of Practice. The court, after discussing the different kinds of variances, said: "It is by no means clear, as already intimated, that there is any real variance between the fact alleged in the answer and the proof; but conceding that such variance does exist, will it be pretended that it was such as was calcu lated to mislead the plaintiff in maintaining their action, or in anywise affect or prejudice their substantial rights? Can it be doubted that if the variance now complained of had been suggested at any time during the trial the court below would have corrected the immaterial error by so amending the pleading as to make it conform to the state of facts made out by the evidence? It is the obvious policy and spirit of the Code referred to, and of numerous other similar provisions, that erorrs of this class should not constitute a ground of reversal here unless an unavailing effort had been made for their correction in the court below. The wisdom of this policy none will question."

There was no suggestion in the court below that appellant had been misled by the variance between the allegation of the petition and the evidence; nor was there any attempt on its part to have the wrong now complained of remedied. If appellant had made it appear to the court that it had been misled by the variance Letween the allegation of the petition and the evidence, the court would no doubt have ordered the pleading amended so as to conform to the evidence, and if it was necessary to the proper presentation of appellant's defense, have continued the cause for that purpose. In the absence of any complaint below we conclude that appellant was not misled to his prejudice by the variance complained of, if variance it be.