36 Vt. 439 | Vt. | 1863
Whatever decisions were made in this cause directly between the orators and the defendants when the case was before this court at a former term, must be regarded as the law of the case so far as their relative rights are concerned. It was there decided that the amount of damages which the orators were bound to pay to the defendants was limited by the amount of the injunction bond, notwithstanding the court at the same time assessed the damages that the defendants had sustained by reason of the injunction at a much greater sum. The penalty of the injunction bond is $30,000. the amount of damages assessed to Knapp and Briggs is $63,097.86, and the amount of damages assessed to the Troy and Boston R. R. Company, is $17,383.52. This all appears from the report of the case, 33 Vt. 486, where the history of the case is so fully set forth as to supercede the necessity of any further statement of it.' The pnandate then sent to the court of chancery accords with the
“The decree of the chancellor reversed — damages of Knapp and Briggs to he assessed at $>63,097.86. Damages of the Troy and Boston R. R. Company, to he assessed at $17,383.52, both with interest from the date of the masters report. Receiver’s account to be settled and the amount in his hands, if any, to he applied in payment of damages — decree against the orators for the remainder of the damages not exceeding $30,000. the penalty of the injunction bond.” The matter of the receiver’s account is now of no importance, as it appears that that account has been taken and nothing is found in his hands. The mandate further provides that, “all questions relative to the apportionment of the amount of the decree upon the respective claims of the defendants, and of the amount allowed the trustees as between the bond holders, &c., to be considered in the final decree.”
The only question made on this appeal as between the orators and the defendants is as to interest on the .$30,000. It appears from the decree that the defendants claimed interest from the dissolution of the injunction. The court of chancery on the 31st of July, 1861, after the foregoing decision of the supreme court, decreed that the bill be dismissed with costs, and “ that the defendants recover of the orators the sum of $30,000. with interest from the date of the deeree.
On this hearing the- defendants claim interest on the $30,000, from the date of the decision or mandate of the supreme court fixing the amount of the liability of the orators. It is true that that decision fixed the amount which the court of chancery was directed to decree the orators to pay, but it was not a final decree, it remained for the court of chancery to carry out the mandate by entering a decree in pursuance of it, and the orators were not in fault in not paying until such final decree was made by the court of chancery, and therefore not liable for interest prior to the making of such decree. The mandate not having ordered any interest to be computed in the meantime on the $30,000., the decree of the court of chancery was in this respect in accordance with the mandate and must be affirmed. But
The remaining questions are solely between the two defendants, Knapp and Briggs of the one part, and the Troy and Boston R. R. Co. of the other part, relating to the apportionment, that is, as to what portion of the $30,000. each shall recover. This question is expressly left open by the former mandate, and is not concluded by the former decisions in the cause.
The court of chancery assessed the damages as directed by the mandate, and apportioned the $30,000, between the defendants Knapp and Briggs of the one part, and the Troy a,nd Boston R. R. Co. of the other part, pro rata, according to the amount of damages assessed to the defendants respectively, {rom this
It is true that if the lessor ousts the lessee during his term, he thereby discharges the lessee from rent, and where there are two or more joint lessors, and one ousts the lessee even against the will of the other lessors, the same result follows. The act of one lessor is for this purpose the act of all. This is because the contract is entire and the rent not divisible, and therefore in such case the lessee is not bound to pay for what the lessor has not suffered him to enjoy. The court very properly decided in in this case that the lessees were not liable for the rent while they were thus deprived of all use of the road.
The proposition that the act of one tenant in common is the act of all is true where properly applied, but not true for every
The trustees had a right on the granting of the injunction to have an order for the payment of damages and a bond to secure those damages ; and the Troy and Boston E. E. Company had the same right as to their damages. The court might have made separate orders in favor of each and ordered a separate bond to each, or they might, as they did, order one bond to all the defendants conditioned for the payment of such damages as they might sustain.
In order to the correct decision of this question we must look to the purpose for which this bond was ordered and given and for whose benefit. The purpose was as much to secure the damages that the innocent bondholders might sustain, as to secure the Troy and Boston E. E. Company, and such is its import. This consideration must' control its appropriation or apportionment, rather than any supposed superior equity set up by the Troy and Boston E. E. Company. Suppose each of two creditors has a several cairn against the same debtor, both legal and valid debts, and the debtor executes a mortgage or other security to the creditors jointly, to secure them, and it turns out insufficient to secure both debts, could one creditor appropriate the whole security to his debt to the exclusion of the other, on the ground that his debt is the more equitable ? Or suppose the orators without power, had wrongfully ousted the Troy and Boston E. E. Company and each of these defendants had in separate suits recovered a judgment for damages for such ouster, and on filing a bill to enjoin the judgments, a bond like this had been ordered and filed, could the Troy and Boston E. E. Company set up this superior equity to prevent a pro rata distribution of
There is a further consideration in favor of a pro rata distribution. Those bondholders who had no agency in procuring the injunction or prosecuting the suit, have not only in fact had no agency in causing the damages, but have done all in their jsower, at least by their trustees if not personally, to defend the suit and protect the lessees in the enjoyment of their rights under the lease ; so that the damages to be recovered are the fruits of the joint efforts and expense of all the defendants. These considerations in our view outweigh any constructive wrong sought to be imputed to these iunocent bondholders by reason of tlieir belonging to a class of creditors some of whom have commenced and prosecuted the suit.
But it is claimed that a pro rata distribution without first allowing the lessees to satisfy their damages out of the fund, is compelling the lessees to contribute towards paying the rent from the payment of which the court have already decided they are released by the act of the orators. But to say that a,pro rata distribution of the bond is compelling the lessees to contribute, is assuming that the bond is the sole property of the lessees, or at least that they have a prior right to it, to the extent of the damages by them sustained, which is the very question in dispute. The bond having been ordered and taken to secure the trustees as well as the other defendant, is the common property of both, and the damages recovered being obtained by means of the joint efforts and at the joint expense of both, a pro rata distribution of the fund, among those who are entitled to damages, according to the amount of damages each has sustained, is the just and equitable rule. The Troy and Boston R. R. Company has no right of priority.
It is claimed further by the counsel of the Troy and Boston R. R. Company, that'if a pro rata distribution of the fund is to be made, the pule of apportionment adopted by the chancellor is
The ajnount the orators are decreed to pay being less than the amount of damages sustained by the defendants, as assessed, and neither being entitled to priority, the distribution should be such as to give to each the same per cent on the damages each has sustained by the injunction, that is, to each one who is entitled to compensation or to participate at all in the fund, or in other words, to recover damages of the orators.
On looking into the previous proceedings in the cause, it appears that the $63,097.86 assessed to the trustees is just the amount of the rent that the trustees were deprived of by the injunction, and which, but for the injunction they .would have received, and that this forms the basis of their damages. To make a distribution, giving each in proportion to his loss, it is necessary to ascertain who has sustained the damages the orators are decreed to pay, and the relative amount each has sustained. The defendants, Knapp and Briggs, personally have sustained no damages,as they stand in the case in a representative capacity, and it is necessary to see whom they represent in this recovery, and in whose behalf they- are to receive their distributive share of the fund. Had there been no forclosure, the interest of the mortgagor, the Western Vermont R. R. Company, would be necessary to be considered ; but this rent which forms the basis of these damages to the trustees having accrued after the foreclosure, the railroad company must be laid out of the case, they having no interest, and having sustained no damage. The trustees in this matter represent only the bondholders. The decree of the chancellor is upon. the theory that they represent the whole bondholders in this recovery, and in this consists the error. The purpose for which the order was made and the bond given, must still be kept in view. It was not to indemnify the orators or the bondholders who prosecuted the suit and procured the injunction, and thereby caused the damages, but to secure the innocent bondholders who did not participate in the prosecution of the suit, and the Troy and Boston R. R. Company.
It is also insisted by the counsel of the trustees that the former decision of the supreme court is conclusive in favor of the decree of the court of chancery, upon the question of distribution, so„ that the court can not look behind the nominal parties. But it appears by that decision that the supreme court only decided as between the orators and defendants, and fixed the sum that the orators should pay the defendants, and expressly left this question of apportionment between the Troy and Boston R. R. Company and the trustees, and also the question of distribution of the share of the trustees between the several bondholders, open for adjudication. This. appears from the case as reported and from the mandate sent to the court of chancery.
The decree of the court of chancery as to the apportionment is erroneous and must be modified according to the views already expressed. In other respects we find no error.
Decree reversed and cause remanded.