Rubon v. Stephan

25 Miss. 253 | Miss. | 1852

Mr. Justice Fisher

delivered the opinion of the court.

This was an’ action of debt in the circuit court of Adams county, founded upon an injunction bond, with the following condition: “Now if the said Christian Stephan, in case he should fail to prosecute his said injunction with effect,'shall satisfy and pay any damages that may accrue from the issuing of said injunction, and abide by the decision of the said chancery court, then this obligation shall be void.”

The issues were joined upon a plea of payment, and a plea denying that the injunction had been dissolved.

The plea of payment admitted the cause of action, to wit, the existence of the bond, and a breach of the condition; and the only question was, whether the damages resulting from such breach had been satisfied. It was, perhaps, incumbent on the plaintiffs to prove the amount of damages sustained.

According to the common rule, the breach of the condition being established, the plaintiffs were entitled to recover the penalty of the bond; but in our practice, the rule is, to enter the judgment for the debt, to be discharged by the damages assessed by the jury.

As this issue showed a breach of the condition, the plaintiffs were entitled to recover at least nominal damages. The''evidence would have authorized the jury in finding something for the plaintiffs; and they were, perhaps, prevented from so doing by the instructions of the court.

The true rule as to damages, in this case, is this. The evidence should show what the property would have brought at a fair cash sale in 1842, when it was prevented by the injunction. It should next show a sale of the property, and the sum for which it sold. The difference between the cash value in 1842 and .the amount produced by the sale, with interest on such difference, will give the damages, which should not exceed the penalty of the bond.

The evidence on the other issue showed very clearly a disposition of the cause in the chancery court. The bill was dismissed, and this was in effect a dissolution of the injunction.

We have stated the rule, which, if adhered to in assessing damages, must lead to a correct result on another trial. We do not say that it is the only rule to guide the court and jury. Anothér may be adopted, provided it can produce a correct result.

Judgment reversed, and cause remanded.