Lillie v. Lillie

55 Vt. 470 | Vt. | 1883

The opinion of the court was delivered by

Taft, J.

This is an action of debt to recover damages upon an injunction bond. The bond was given in an equity suit in favor of the defendants against the plaintiffs to restrain them from cutting wood and timber upon the premises described in the bill. The plaintiff, Elisha Lillie, held a life estate in the land, and the other plaintiffs and the defendants held the reversionary interest therein. The plaintiffs were restrained from cutting down any timber, trees or wood, standing or growing upon the premises, or in any way disposing of the same (except what might be cut in a husbandlike manner for firewood, and timber for fencing and ordinary repairs upon the premises), and from cutting down for sale any saplings or green trees or other growing timber and wood, and from committing any waste or spoil whatever. /

I. The defendants contend that Elisha Lillie was restrained from nothing but the commission of waste; but we think the injunction prohibited the cutting of wood and timber for any purpose save those named in the exception above noted. He could not cut any wood or timber not included in the exception, although such cutting would not be in violation of any of the rules of good husbandry or cause any damage to the reversionary estate. He is, therefore, entitled to such damages as he may have suffered in not cutting such wood as he had a right to cut, but was restrained from cutting by the -injunction.

II. The defendants insist that the referee mistook the rule of damages applicable to the case; that he estimated them at what the wood was reasonably worth on the stump ; that the wood was standing at the dissolution of the injunction, and could then have been cut. It is not apparent from the report what rule the referee did adopt. He reports some of the facts found by him and some of the evidence. No question is presented by the report in regard to the matter ; no objection appears to have been made to the evidence, and no exception was taken to the report. The referee reports that: “ The plaintiffs were damaged by being deprived from cutting what wood they might have cut from said land and what they would have cut had said injunction not been placed upon them.” To justify us in reversing the case on this point, the rule adopted by the referee should have been shown by the exceptions, and that it was not the true rule.

III. The defendants claim that no recovery can be had in the names of the plaintiffs, upon the ground that they are not jointly entitled to the damages. The bond in question is a sealed instrument ; and the general common-law rule is, that actions thereon must be brought in the name of the obligees, even in those cases where the conditions are expressed to be for the benefit of third persons. Actions of debt upon specialties are strictly legal actions brought to enforce legal rights. The legal estate in a specialty is in the party with whom it is made, and whoever is in interest under it may maintain an action for his benefit in the name of the party to it under whom such interest is claimed. In Bird et al. v. Washburn et al., 10 Pick. 223, it was held that debt upon a bond executed to the plaintiffs to secure them in becoming bail for a prisoner, might be maintained by them as joint plaintiffs for the benefit of the one who had been obliged to pay. We construe the bond in question as joint, and think the action properly brought in the names of the obligees. -

IV. The chancellor modified the injunction in 1874, and the plaintiffs thereafter were not restrained from cutting wood and timber unless such cutting would constitute waste ; but they for bore cutting and selling for fear they might violate it. Whatever their belief may have been, they are entitled to no damages for not doing what the injunction permitted them to do.

Y. The plaintiffs claim to recover the taxable costs, disbursements and counsel fees in the suit in which the injunction was granted. The bond requires the obligors to pay all damages occasioned by the granting of the injunction, and all such costs as may be awarded against them. We do not think this refers to the costs in the main suit, but to those accruing in consequence of the injunction as a direct result of it; such as the cost of the dissolution, if one was moved for and granted. This is the reasonable construction to be given the terms of the bond. All damages which accrue as the direct result of the injunction are recoverable. We do not say but that counsel fees, costs and disbursements may be included in such damages, but they must be such as result from granting the injunction ; it is not necessary, however, to decide this question as none of the costs, disbursements, and counsel fees which the plaintiffs claim to recover, were incurred in consequence of granting the injunction, but were the legitimate expenses of defending the suit upon its merits, and cannot be regarded in any sense as damages occasioned by the injunction. That such items cannot be recovered has been decided in this State. Sturgis et al. v. Knapp et al., 83 Vt. 486.

The exceptions of both parties are overruled, and judgment is affirmed.