287 F. 848 | 2d Cir. | 1923
(after stating the facts as above). The only question raised by this appeal relates to the finding of damage in the sum of $1,999.80 representing the decline in the market value of the plaintiff’s stock, from the date of the injunction to the date of the original decree dissolving the injunction. The purpose of the injunction bond was to protect the defendant Chandler from the order enjoining him from disposing of the stock. That order* dated July 8, 1920, enjoined him “from assigning, transferring, indorsing, pledging, hypothecating, or otherwise negotiating, disposing of,' or parting with the possession of and title to” the 3,333 shares, and the certificates therefor of the capital stock of the plaintiff corporation standing in his name on the books of the plaintiff corporation.
The stock involved had a definite ascertainable market value and was the subject of daily, trades in the open market. It is obvious, therefore, that the effect of the injunction was to deprive the owner of the shares of the opportunity to taire advantage of the market situation and realize a profit or spare a loss from the sale of the stock. The fact that the court in granting the injunction fixed the amount of the bond in a sum about equivalent to the then market value of the stock indicates that the purpose of the court was the protection of the owner of the shares against a possible loss which might arise from a decline in the selling value of the stock; it being a matter of common knowledge that oil stocks are unstable and have a highly speculative value. And it is evident that, where the owner of stock is deprived by a court order of a ready and available market for his security, he is damaged by the difference between the value of the stock at the time when he was enjoined and the’value at the time when the injunction was dissolved.
The special master found that on the day when the injunction order was served the stock had a market of 90 cents a share, and on July 5, 1921, when the injunction was dissolved, it had a market value of 3Ó
The general principles for measuring damages ordinarily apply in actions for wrongfully suing out injunctions; and the damages allowed are those which are the actual, natural, and proximate result of the wrong committed. The depreciation resulting from a delay in the sale of personal property is “occasioned by the injunction.” 1 Spelling on Injunctions (2d Ed.) § 944. In Slack v. Stephens, 19 Colo. App. 538, 76 Pac. 741, an injunction was obtained restraining the sale of shares of stock. During the time the injunction continued in force the stock depreciated in value. The injunction having been dissolved, the court held that the wrongful act of securing and having served the writ of injunction, thereby preventing the plaintiff from selling his stock and realizing its value, when it had a value, was the proximate cause of the damage, and allowed the enjoined party to recover damages represented by the depreciation in value to the extent of the injunction bond given. The court said:
“The authorities are that the wrongful- act of defendants in securing and having served the writ of injunction, thereby wrongfully preventing plaintiff from selling the stock and realizing its value, when it had a value, is the proximate cause of the damage sustained through the failure to sell. * * * The wrongful act of appellants caused plaintiff to lose the value of his stock. The value of his stock exceeded the penalty of the bond. He was entitled in an action on the bond to recover such damage to the extent of the penalty of the bond. * * * ”
In Mansell v. British Linen Company Bank, [1892] L. R. 3 Ch. Div. 159, the plaintiff claiming certain shares as his property obtained an interlocutory injunction restraining the shareholder, until judgment or until further order, from selling or offering for sale, or otherwise dealing in, the shares without the plaintiff’s consent. The injunction was issued on the plaintiff’s undertaking to abide by any order the court might make as to damages, in case the court should thereafter be of opinion that the defendant sustained any by reason of its order. The plaintiff’s claim having been held bad, and the injunction having terminated, the court was asked to fix the amount of the damages arising from the injunction order. It was fixed at the difference between the sum the shares would have brought, if they had been sold when the injunction was granted, and the price which would have been obtained, if they had been disposed of when the summons asking for a sale of the shares was issued.
The jus disponendi is an incident of the ownership of property. The defendant Chandler had a legal right to dispose of his stock at any time. The plaintiffs wrongfully interfered with that right by depriving him of his power to sell during the period of the injunction which they wrongfully obtained. This was a direct invasion of his legal right, and the violation of a legal right imports damage. In Brett v. Cooney, 75 Conn. 338, 341, 53 Atl. 729, 731, the court said:
“Tbe violation of a legal right imports damage. Watson v. New Milford Water Co., 71 Conn. 442, 451. The law implies it, even though, in fact, the defendant’s breach of duty proved a benefit to the plaintiff. Excelsior Needle Co. v. Smith, 61 Conn. 56, 65.”
In general, it is no doubt true that the loss for which a recovery may be had in an action against a wrongdoer must be the result of the wrong inflicted. The party complaining must show, not only that he has suffered the loss, but also that it would not have been incurred, but for the wrongful act of his adversary; and the amount of the loss is as much to be proved by the plaintiff as the fact of the loss. All this is common learning. It is also true that, in assessing damages, the rule is the same in courts of law and in courts of equity. Stewart v. Joyce, 205 Mass. 371, 91 N. E. 555. In Giraud v. Moore, 86 Tex. 675, 26 S. W. 945, the Supreme Court of Texas held that, where stock is wrongfully garnished, its owner .cannot recover its difference in value between the time of garnishment and the time of trial, unless it is shown the garnishment caused the depreciation, or that the owner could or would have sold it during the time.
The bill of complaint alleged on information and belief that the defendants “are about to sell and dispose of the said shares of stock held by them.” This bill the plaintiff, through its president, had sworn to, and the allegation was not denied by defendants in their answer. Both the special master and the District Judge thought that this sworn statement in the complaint was sufficient, in the absence of any evidence to the contrary, that Chandler wished to sell the shares. The appellant asserts, however, that this was error. The courts have held, that where a bill alleges upon information and belief, a mere denial of the allegation puts in issue only the plaintiff’s information and belief, and not the truth or falsity of the facts alleged. Messer v. Storer, 79 Me. 512, 11 Atl. 275; Ex parte Reid, 50 Ala. 439; Quinn v. Leake, 1 Tenn. Ch. 67; Walton v. Westwood, 73 Ill. 125; Longes v. Kennedy, 2 Bibb (Ky.) 607, 3 Encyc. of Pl. & Pr. 363. If the bill alleges upon information and belief, and the answer makes no denial of the allegation, the defendant is entitled to the benefit of the plaintiff’s admission. While a plaintiff cannot read any part of his bill as evidence to support his own case, he may read any portion of the answer as evidence in its support; and in the same way, while a defendant'cannot read any part of the answer to support his position, yet the positive allegations of the bill, as far as they aid the defendant, are admissions in his favor of the facts alleged, and therefore need not be proved by him by other evidence. Whitehouse’s Eq. Pr. vol. 1, § 337; Street’s Fed. Eq. Pr. §§ 1582, 1583; Metcalfe v. Metcalfe (1737) 1 Atk. 63.
And under equity rule 30 (201 Fed. v, 118 C. C. A. v) it is provided: “Averments other than of value or amount of damage, if not denied, shall be deemed confessed,” except as against an infant, lunatic, or other person non compos. We think the averment in the bill as to
But the plaintiff in the instant case contends that no evidence was introduced by the defendant Chandler to prove that he ever made any attempt or effort to sell the 3,333 shares of stock held by him. The plaintiff, however, had made it impossible for the defendant to attempt to sell the stock by the injunction it obtained, which restrained him under the pains and the penalties of law from in any way disposing of the stock. If he had attempted to sell it in violation of the injunction, he would have committed a contempt of court. As soon as the defendant was at liberty to act, the injunction being dissolved, the evidence shows that the defendant sought to effect a transfer of the stock and that the plaintiff refused to make it. We think that this was sufficient. It proved the defendant’s desire to dispose of his stock, and that he was prevented from doing so by the plaintiff’s wrongful refusal to do what the defendant had a right to have done. This was an aggravation of the original wrong, which the plaintiff inflicted upon the defendant in suing out the injunction, and we think, upon the facts of this case, it not unfair to hold that the intention to sell, manifested as soon as the injunction was dissolved, relates back to the time the injunction was originally granted, and may properly be assumed as existent through the whole period that the injunction was in force and during which the plaintiff was not at liberty in any manner to negotiate the stock. Especially is this true in view of the fact that the defendant’s right to damages accrued at the time the injunction was wrongfully sued out, which involved the violation of his legal rights and imported damage.
Judgment affirmed.
