163 S.E. 54 | W. Va. | 1932
Plaintiff sought, by notice of motion for judgment, to recover on a bond given by defendants in an injunction suit (Carden v. Bush,
Before discussing the errors alleged by plaintiff, we first answer defendants' inquiry as to whether an action on an injunction bond may be summarily reduced to judgment under the provisions of
In Lambert v. Morton,
Facts pertaining to the injunction suit appear in the reported case of Carden v. Bush,
While in this jurisdiction, counsel fees paid out in procuring the dissolution of an injunction are recoverable as damages in an action on an injunction bond, it is also well settled that where such fees are incurred in defeating the action and the dissolution of the injunction is only ancillary to that result, they are not damages sustained by reason of the injunction. 2 Sutherland on Damages, sec. 525. And, it is incumbent upon plaintiff to show that injunction was the sole relief sought or that the attorney's fees were paid out solely for the purpose of procuring the dissolution as distinguished from expenditures for the hearing of the principal issues involved. Tully v. Taylor,
The next inquiry relates to the rental losses. As a general rule, the measure of damages to be assessed against injunction bondsmen is an amount which will compensate the injured party for losses sustained by him which are the actual, natural and proximate result of the wrong committed by the restraining order (32 C. J. 464), and the rental value of the property from the time the injunction was in force may be recovered by the injunction defendant. 32 C. J. 467.
Bush's building was progressing toward completion at the time of the trial, although he admitted on cross-examination that the building he originally planned had never been built; and defendants' counsel say that plaintiff is not entitled to recover "the rental value of the contemplated building which was thereafter finally and permanently abandoned," citingRy Co. v. Pardue, 131 S.W. (Tenn.) 862, in support thereof. How greatly the original plans had been altered does not appear. In the case cited, Pardue had abandoned his original building plan and had constructed a building costing five times as much as the contemplated building and designed for different uses. The court stated: "When the building is subsequently erected, after the restraint caused by the injunction has been removed, the court can then see that contingency has given place to achievement; but, when it is abandoned, the doubt based upon the contingency that necessarily attends all uncompleted projects is proven, justified, and confirmed." The Washington court in Stone v. Imp. Co., 122 P. 370, commented thus on the Pardue case: "We think the court properly refused to allow the loss of rent as an item of damage in that case, for the subsequent conduct of the owner was in effect a declaration of benefit. The case turned on the finding that the plaintiff had abandoned his purpose * * *"; but damages were allowed in the Stone case where it appeared that a building costing less than the one contemplated *636
was actually erected as soon as the injunction was dissolved. The rule given by High on Injunctions, (4th Ed.), Vol. 2, p. 1624, is: "In determining the amount of damages to be allowed upon the dissolution of an injunction restraining one from exercising acts of ownership over his real property, the courts are not governed by arbitrary rules, but proceed upon equitable principles * * *." In the present case, the injunction was in effect for more than three years. As to the bond liability with respect to time, see State v. Friedman,
The judgment of the lower court is reversed and a new trial awarded.
Judgment reversed and new trial awarded. *637