Schuessler v. Still

ANDERSON, J. It was incumbent upon the plaintiff to aver a breach of the bond in plain and unambiguous terms. The present complaint avers, only bv way [241] of inference, that the writ was vexatiously or wrongfully sued out, and was subject to the defendants’ demurrer. In an action on the bond, wherein counsel fees are claimed as special damages, it is not sufficient to aver merely the employment of an attorney, but he must have rendered service in defending the suit. — Trammell v. Ramage, 97 Ala. 666, 11 South. 916; Baldwin v. Walker, 94 Ala. 514, 10 South. 391. And the plaintiff must have incurred a liability for same. These facts are not specifically averred, and can only be read into the complaint by way of inference, and the demurrers proceeding upon this theory should have been sustained. Apart from the foregoing defects, and treating the case as it was tried upon the present complaint, there was reversible error, independent of the ruling upon the pleading. The writ of seizure was sued out under section 3194 of the Code of 1907, ancillary to a bill in chancery to enforce a .lien, and when the plaintiff showed a dismissal of the bill which carried the writ of seizure with it, he made out a prima facie case that said writ was wrongfully sued, and Avas entitled, at least, to nominal damages, and was, therefore, entitled to the general charge, notwithstanding he proved no actual damages. The trial court did not err in giving the general charge for the plaintiff, and in refusing the one requested by the defendants. The only damages attempted to be shown or established were the counsel fees of $150. There was no proof whatever that J. W. Strother, the attorney employed, defended the chancery suit, Avhich Avas essential to the plaintiff’s right to recover the fees from these defendants. — Baldwin v. Walker, supra, subsequently cited and approved in the case of Trammell v. Ramage, supra. The plaintiff testified “that he employed J. W. [242] Strother as his attorney to defend said chancery case above mentioned, and had agreed to pay him a fee of $150 for defending said suit.” There was no proof that Strother defended the suit, or that the plaintiff had paid or was liable to him for the fee. He said he agreed to pay him for defending the suit; so, if he did not defend the suit, he was not liable to him. No actual damages having been shown, the trial court erred in refusing charge 2, requested by the defendants, and the judgment of the circuit court is reversed, and the cause is remanded. Reversed and remanded. Dowdell, C. J., and Sayre, and Evans, JJ., concur.