| Mo. Ct. App. | Apr 20, 1880
delivered the opinion of'the court.
Plaintiffs obtained a restraining order enjoining defendant from foreclosing a deed of trust upon property in St. Louis to secure a note owned by defendant Zimmer. The proceedings in the present case are upon a motion filed by
The verdict was as follows: “We, the jury, find for John Zimmer, and assess the damages as follows: Loss sustained by injunction, $275 ; lawyer’s fee, $200; advertising, $32.46; making total damages, $507.46.” Judgment was entered accordingly against the parties to the bond.
■ It is objected by appellants that there is no allegation in the motion that the principal or sureties have not paid the damages, nor that the order of dissolution was final, nor •that Zimmer had paid the costs of sale, nor that the value of the property had depreciated, or the security diminished. It is further objected that the names of the parties to the bond are not set out in the motion, nor the condition of the bond, and that the motion does not state that Zimmer has been compelled to expend anything. There is nothing in these objections.
It is contended by appellants that the verdict was excessive, and not warranted by the evidence.
As to’the attorney’s fee'and printer’s bill, the verdict
The court instructed that the jury, in assessing damages, must “not consider the actual, or any rent that was, or might have been collected from the occupants of said premises during the continuance of the injunction.” If this was error, it is error of which the appellants cannot complain. The other instructions need not be noticed.
The appellants insist that there was no evidence of loss sustained by the injunction. It is true that it is not shown what Zimmer’s time was worth, or what it cost him to come to St. Louis, or that the selling value of the property had fallen. The question of rents might have been immaterial had it appeared that the mortgaged property was worth the debt. But the evidence tends the other way. There is no evidence that anything had ever been paid on the noté. The note with accumulated interest represented, therefore, more than twice the value of the mortgaged property. The party injured by the injunction is entitled to whatever damages he has sustained. It is held ( Aldrich v. Reynolds, 1 Barb. Ch. 613" court="None" date_filed="1846-08-04" href="https://app.midpage.ai/document/aldrich-v-reynolds-5549591?utm_source=webapp" opinion_id="5549591">1 Barb. Ch. 613) that the value of the. growing crops talien off by the mortgageor during the time the'saleis suspended by injunction, forms part of the damages, by reason of an order restraining the sale. This is cited with approval in Kennedy v. Hammond, 16 Mo. 358. If this be so, the receipt of the rents by the mortgageor or his representative, during the peroid that the sale is suspended, is an element of damage when the premises are worth less than the debt. This being so, there was evidence from which the jury might infer in the present case that Zimmer’s actual damage was $275, in addition to the cost of advertising and attorney’s fee. The rents during the time the sale was suspended were, by the evidence, from $350 to $420. If the.
As no error to the prejudice of appellants appears on the record, it is our duty to affirm the judgment.
Judgment affirmed.