82 A. 531 | N.H. | 1912
The plaintiffs secured an injunction which prevented the defendants from selling certain pine plank to any one. other than the plaintiffs. Not being permitted to sell to any other, the defendants sold the plank to the plaintiffs for $18 per thousand, with the agreement, however, that such sale should not prejudice their rights in this proceeding. If the plaintiffs paid the defendants as much as they could have obtained from others, although. the injunction was improvidently issued the defendants' damages. would be merely nominal. But it is found that but for the injunction the defendants could have sold the plank to others for $2 per thousand more than the plaintiffs paid; and as upon the evidence it could have been found that they would have made such sale. except for the injunction, the finding that they have been damaged by the issuance of the injunction $2 per thousand upon 544,310 feet, the amount cut on the lot, all of which the plaintiffs received, presents no error of law.
In the present proceeding, the contract alleged by the plaintiffs *317
as the foundation of the proceedings which have been decided against them is immaterial. The measure of damages is not the difference between what the defendants did receive and what they would have received of the plaintiffs under the contract, but the difference between what they did obtain and what they could have received but for the injunction. It has been decided in this case that the defendants could not be compelled to sell the plank to the plaintiffs. New England Box Co. v. Prentiss,
The decision upon demurrer (
The defendants were enjoined from selling "any of the plank, lumber, or timber described in said petition to any person." In the petition the plaintiffs asked for an injunction restraining the defendants from selling the pine plank "or any of the lumber or timber on said Richardson lot to any person." Naturally, the defendants understood that the injunction, by reference to the petition which mentioned all the lumber and timber on the Richardson lot as the matter to which the injunction should relate, restrained the defendants from selling any of the lumber or timber on the lot. Such is the plain import of the language. Doubtless with their knowledge of the situation, counsel may have advised the defendants that the injunction was broader than the plaintiffs could properly ask for, as probably they advised them that upon the facts the injunction could not be maintained at all. But the belief of the defendants or their counsel that the plaintiffs were not entitled to the injunction in whole or in part did not authorize them to violate it in any particular. They may not have understood why the plaintiffs thought it necessary to prohibit the removal of any lumber from the lot; but whatever speculations they may have had on this point, they were justified in yielding implicit obedience to the order of the court, and are entitled to recover the loss thereby sustained.
The exceptions to evidence do not require consideration. The damages assessed should be increased by the sum of $237.
Exceptions overruled.
All concurred. *319