Jesse French Piano & Organ Co. v. Porter

DOWDELL, J. This is a suit on an injunction, bond after dissolution of the injunction, to i: eco ver damages resulting from the suing out of the writ. The damages recoverable for breach of an injunction bond must be such as are the natural and proximate result of the issuance of the writ. That attorney’s fees incurred in procuring the dissolution of the injunction are such damages, is not now to be questioned. The measure of such damage is the fair and reasonable value of the services rendered in procuring the dissolution of the injunction, arid this without reference to' the ratio the value of such services might bear to the value of services rendered throughout the entire case in which the injunction is obtained, but not to' exceed what the plaintiff has contracted to pay in case the compensation has been agreed on and fixed between the plaintiff and his attorney. The price, however, fixed by contract between the. plaintiff and attorney, is not the measure of defendant’s liability, since the plaintiff and attorney cannot by their contract place a, liability on the defendant beyond1 and in excess of what would be fair and reasonable co-mpane sation for the services actually rendered. In the injunction suit an appeal was taken by the defendants from the decree of the chancellor dissolving the injunction, and it is now contended by 'appellants here, that there can be no recovery in a suit on the injunction bond for attorney’s fees incurred by the plaintiffs on such appeal. The purpose of the appeal was to review and reverse the decree dissolving the injunction, and the reversal of the decree would necessarily reinstate the in307 junction. Attorney’s fees incurred in resisting the effort to have the decree of dissolution set aside, are as much the natural and proximate result of the issuance of the writ, as are the fees incurred in procuring the dissolution in the first instance. There is no merit in the' argument of counsel, that attorney’s fees for resisting an application for an injunction might as reasonably be claimed as damages in the suit, as fees incurred after the decree of dissolution, on the appeal from such decree. Fees incurred in resisting an application for the injunction, cannot possibly be damages resulting from the issuance of the writ. The bond sued on contracts to pay damages caused by the issuance of the writ, amid such as are the natural proximate consequence of its issuance, and not antecedent damages. It is insisted, that what was said in Bolling v. Tate, 65 Ala. 417, in this conduction, is dictum, and should) be departed from. We approve of the reasoning employed in that case, and now sanction; as the law what is insisted by counsel was dictum. — Bolling v. Tate, 65 Ala. 417; Jackson v. Millspaugh, 100 Ala. 285; Cooper v. Hames, 93 Ala. 285. A preliminary injunction, commonly spoken of as a temporary injunction, is granted pending a hearing on the merits, and only upon the complainant’s entering into bond with surety conditioned and payable as required by law. The statute prescribes, the condition, and that condition is, “to pay all damages and costs which any person'may sustain by the suing out of such injunction, if the same is dissolved.” — Code, § 788. The writ is obtained upon an ex parte hearing, and the bond is required as a protection against the abuse of this extraordinary process, amid to* prevent oppression by its use. It is different from a permanent injunction in that it is preliminary to a hearing on the merits and bv no means dependent on such hearing. A permanent injunction may be had on final hearing on the merits without the requirement of a bond; a preliminary injunction cannot. The bond is the contract of the* party executing it, the statute prescribes its terms and conditions, and the right; of action arises immediately upon the breach of its condition. The promise is to* pay all [308] damages and costs, if the injunction is dissolved. The failure to pay all damages and costs, sustained by the suing out of the writ, after the same has been dissolved, is a breach of the bond, and there is nothing m the statute nor in the bond which postpones, the right of action until after a final hearing on the merits. There are cases to> be found which hold that there can; be no assessment of damages for suing, out the writ until a final hearing of the cause in which the writ issued. We apprehend that these cases, however, are based upon a statute different from ours-, or upon a bond differing in condition from the one here sued on. In 2 High on Injunctions (3d ed.), § 1649, it is said: “The general rule is, that upon the dissolution of an injunction and failure on the part of the, obligors to comply with the conditions of the bond, a right of action at once accrues. Nor is it necessary that the obligee should first sue out an execution upon the decree dissolving the injunction, before instituting proceedings at law for a recovery upon the bond, but he may proceed immediately upon the dissolution. But if the bond is conditioned for the payment of such damages as may be sustained if the court shall finally decide that plaintiffs were mot entitled to the injunction, no right of action accrues until the final determination of the suit, and the statute of limitations does not begin to run upon the bond until that time.” This author states that it has been held, however, that mo- right of action at law can be maintained on the bond until the final determination of the cause in which the injunction issued, citing Gray v. Vein, 33 Md. and Penny v. Holberg, 53 Miss.; but the general rule is, otherwise as above stated. The evidence in the case supported the averments of the complaint, and that, tom, as shown by the bill of exceptions without conflict. The fact that one of the witnesses whoi testified in behalf of the plaintiffs as to the value of the legal services rendered in procuring the dissolution of the injunction, based his opinion in part on what had been told him by one of_ the attorneys of the plaintiffs in the injunction suit as to» the amount of service performed, raised up no. conflict in the evidence. [309] This evidence was admitted without objection from the defendant, and the1 fact that it was in along with other evidence that showed the value of the services rendered, in no wise affected the probative force of such other evidence, or furnished any reason for not giving the affirmative charge requested by the plaintiffs. Charge 3 requested by the defendant assumes that the opinions of witnesses were based on what whas told them by Messrs. Holloway and other persons, when the hill of exceptions shows that the opinion of only one witness, as to the value of the service rendered, was based in part on what Mr. Holloway told the witness, and only Mr. Holloway and not other persons. The charge in'this respect was abstract, and for that rea'son, if no other, ivas properly refused. Charge 4 requires the jury to return a verdict for the defendant, if Hiere be an element of uncertainty in the evidence which they cannot solve, notwithstanding the jury might otherwise be satisfied from the evidence of the plaintiff’s, right to recover. The charge is also faulty in that it requires the plaintiffs “to show to the jury by competent evidence the reasonable amount of the charges,” etc., when there was incompetent evidence in the case, without objection from the defendant, which tended to show such reasonable amount of the charges, etc. What wre have already said in the foregoing opinion upon the questions involved, disposes of the remaining charges requested by the defendant, and wdiich were refused by the court. We, find no error in the record, and the judgment is affirmed.