Tabor v. Clark

Chief Justice Helm delivered the opinion of the court. The cause in which the injunction bond now sued on was given was not primarily injunctive in its nature. It was brought to secure the cancellation of the trust-deed given by Hénry and Loveland upon the premises in question, and to procure a reinstatement of the original contract between Clark and the Denver Circle Peal Estate Company, as assignee. This contract appears by the complaint to have [436] been of great value to the company. The cancellation thereof by the two directors named is alleged to have been wholly without consideration and fraudulent, and Clark is connected by averment with the fraud. "Were we to discard from consideration the injunctive feature of the proceeding, a full and complete cause of action would nevertheless appear in the pleading. The injunction was ancillary to the principal relief claimed. Its purpose was to render the ultimate decree in the main case, if given for plaintiff, effective. It simply inhibited Clark, pendente Ute, from negotiating the notes, which would necessarily carry with them the security, and from selling the property in pursuance of the trust-deed to innocent third parties. It is needless to say that either of these steps would have proved seriously detrimental to plaintiff, had he recovered in the end. Under these circumstances the charge of the court must be held erroneous. The injunction bond was given to protect appellee from injury by virtue of the issuance of the injunction. The attorney’s fee should have been accordingly limited. ÍTeither the principal nor the surety .in that bond could by virtue of its provisions be held for the value of legal services rendered in the preparation and trial of the main case: 2 Suth. Dam. 68, and cases cited’; High, Inj. §§ 913, 914. It was claimed in oral argument that the real and sole object of the suit in which the injunction issued was to obtain a postponement of the sale under the trust-deed, and thus enable Henry and Loveland to avoid such sale by procuring the requisite sum of money, and taking up the notes. Tabor, so it was asserted, acted in the interest of those parties, and did not prosecute the suit in good faith for the purpose of securing the principal relief ostensibly claimed by the complaint. It is sufficient for us to say that if these assertions were satisfactorily proven at that trial we are not apprised of the fact by the record now before us. Of [437] course the record must govern the present decision, and we cannot, upon aught that appears therein, sustain the claim of counsel in this regard. We are aware of the fact that it may be difficult to apportion the value of legal services, under such circumstances as are here presented. Counsel,-perhaps, cannot say exactly how much time and labor were consumed in resisting the ancillary injunctive part of the case; but it is no more difficult to separate the claims for service’ in connection with the principal case, and with the injunction, and to fairly approximate the sum due for the latter, than it is to estimate the amount to be recovered in many other oases upon which courts are called to adjudicate. Besides, the existence of this embarrassment does not furnish a legal reason why the parties to the injunction bond should he held for damages not in any way contemplated or provided for by their' contract. For the reasons given the judgment will be reversed and the cause remanded. Reversed. Mr. Justice Elliott, having presided at the trial below, did not participate in. this decision.