McCoy v. Torrance County Savings Bank

OPINION. LEIB, D. J.— 1 (After stating the above facts)., Two questions are all that need be considered on this appeal. J ■ 1. Was the failure of appellants to secure the payment of the deficiency judgment by security, to be agreed upon by them and II. B. Jones, such non-compliance with their contract as to release the appellee from its obligation? In their complaint, appellants do not allege that they furnished the bank such security, nor do they allege a legal excuse for not doing so. If the furnishing of such security was a condition precedent to the forbearance of the bank in issuing execution for one year, then, unless such security was furnished, the bank was released from its obligations under the contract. That such security was furnished, or a legal excuse, for their failure to do so, must have been alleged by appellants in their complaint in order to state a cause of action. In ordinary language, that part of the contract which we need to consider was an agreement of appellee to extend the time for payment of the deficiency judgment for one year, on condition that appellants give security for such payment. It is susceptible of no other meaning. The time when such security was to be given was fixed, that is, as soon as the amount of the deficiency judgment was ascertained. Provisions were made for determining the character and sufficiency of such security. Parties were designated to pass upon the same. Contracts should be given a reasonable construction. Wo can see in the contract before us no other reasonable meaning than that appellants promised to secure the, deficiency judgment, on condition that appellee would not have execution issue for one year. Such promise is the only consideration moving to the appellee. Until appellants complied with the conditions of that promise, they were not in position to restrain appellee from proceeding, in legal manner, to enforce its judgment. To hold otherwise would put it in the power of appellants to refuse arbitrarily to agree upon any security and thereby reap the same benefits they would have derived from compliance with their contract in every particular. The law, logically construed, cannot arrive at such an absurdity. As appellants failed to allege performance on their part of a condition precedent by them to be performed, and failed to allege a legal excuse for its non-performance, their complaint did not state a cause of action, lienee, the court below committed no error in dissolving the temporary injunction on motion for judgment on the pleadings. 9 Cyc. 699; Patrick, et al. vs. Colorado Smelting Co., 38 Pac. 236. 2 Did the court err at the hearing on said motion in rendering judgment for damages against appellants? Regardless of whether or not a court of equity, in the absence of legislative authority, upon dissolving an injunction, has power to enforce the payment of damages in the original action, we think the court erred in assessing damages in this case. The transcript before us shows that no evidence on the question of damages was heard by the court. We. cannot conceive how damages could he assessed without taking evidence as io ihe character and extent of the same. In a contested case, there should be an opportunity given for the cross-examination of witnesses, and for the presentation of counter testimony. A hearing as to damages sustained by the issuance of an injunction, on the dissolution of the same, has all the elements of the trial of an issue raised by the pleadings. . Nothing should be allowed as damages which are not the actual, natural and proximate results of ihe wrong committed. Clearly, this •could not be determined without the hearing of evidence in the manner above indicated. “Where damages are assessed by the court upon the dissolution of an injunction, there must be evidence supporting such assessment. ' The record must show the evidence upon which the court assessed the damages, especially where there is no such findings of fact in the decree as will dispense with the necessity •of preserving the evidence. There is no presumption in such cases to aid the omission of the evidence from the record.” 16 A. & E. Enc. Law, 461. We, therefore, amend the decree of the lower court by striking therefrom the judgment against appellants for ■damages; without prejudice, of course, to a proper action •on the bond, and as so amended, the same is hereby affirmed, and, IT IS SO OEDEEEÍ).