11 Wash. 99 | Wash. | 1895
The opinion of the court was delivered by
This is an action brought by the respondent upon an injunction bond executed by the appellants for alleged damages growing out of the injunction issued against the respondent and in favor of the North Star Boot & Shoe Company, a corporation. The respondent in this action had a mortgage for $3,102.85 upon the personal property of one A. F. Rosbách. The said Rosbach had also executed a chattel mortgage to the North Star Boot & Shoe Company of the same property, which was executed subsequent to
The answer admitted the execution of the bond, but alleged that the condition upon which the bondsmen agreed to become liable had not been broken, in this,to wit: That the court had never fully decided that such plaintiff was not entitled to the injunction for which said bond was given. As to all the other allegations, matters and things contained in the complaint, defendants, answering, said they had not sufficient knowledge or information to form a belief, and therefore denied, them. They affirmatively set up the mortgage of the North Star Boot & Shoe Company; alleged the fact that they were proceeding to foreclose their mortgage, and had advertised the sale of the goods on the 3d day of
The answer and complaint are both long, but we think we have substantially stated the allegations therein. A trial was had and a general and special verdict found. Motion for a new trial was overruled, and judgment entered. To all of which appellants excepted, and bring the case here on appeal.
It seems to us the principal question for discussion is, did the court err in overruling the general demurrer to the amended complaint, or were the damages incurred by the plaintiff the direct or approximate result of the injunction obtained by the plaintiff in the injunction suit. There is some conflict of authority on this question, but we think the great weight of authority and the better reasoning support the contention of the respondent. The appellants quote § 1635 of vol. 2 of High on Injunctions, to the effect that sureties are liable for such damages only as result from the injunction itself, and not for damages caused by the unlawful act of the person obtaining the injunction during its pendency. While this is true as a general proposition, we think the damages here did result directly from the injunction itself. Certain it is that the effect was direct enough to take from the possession, control and reach of the respondent the property upon which he had a
While it is true that sureties on injunction bonds, or, for that matter, on any other bonds, will not be held beyond the strict terms of their contract, it seems to us that under the strict terms of their contract they are liable for the damages which arose in this case. The promising part of the bond is as follows:
“Now, therefore, we, the undersigned, residents of the county of Lincoln, state of Washington, in consideration of the premises and the issuance of said injunction, do promise to the effect that in case said injunction shall be issued said plaintiff will pay to the said parties enjoined such damages, not exceeding the sum of $2,000, as such parties may sustain by reason of said injunction, if the court finally decides that the said plaintiff was not entitled thereto.”
So that there is no question of rigid or liberal rule, so far as the rights of the bondsmen are concerned, but it is a pure question of fact as to whether the damages were sustained by the respondent by reason of the injunction.
It seems to us that if we should hold that the damages in this case were too remote, or that the defendant in the injunction proceeding should be relegated to the sheriff on his official bond for redress, injunction bonds would be found entirely inadequate and altogether unnecessary; for certainly, by reason of the respondent being forbidden to pursue the remedy which he plainly had under the law, to foreclose his mortgage and sell the property to satisfy his debt, his lien was destroyed and the property was taken from the jurisdiction, and was lost to him. And it seems in reason it would make
Respondent cites in support of his contention Dougherty v. Dore, 63 Cal. 170, and we think this case is squarely in point. There the plaintiff was a street contractor who had a contract for doing the work which he was temporarily enjoined by the injunction from prosecuting. The testmony showed that by reason of said injunction and service thereof and delay caused thereby, a large amount of material placed in a certain part of the street by plaintiff was left without protection, and was washed away by the action of the water, and that the plaintiff had to, and did, replace it at a heavy cost. It was urged in that case that the injunction was not the cause, either approximate or remote, of the damage; hut it was held by the court below that it was sufficiently approximate, and such decision was affirmed by the supreme court. “The injunction,” says the court, “ did not wash away the work or any part of it, hut it prevented the plaintiff from taking measures to protect it against the the action of the water.” The court, in that case quotes Meysenburg v. Schlieper, 48 Mo. 426, where it was held that one who was enjoined from selling his property until after it was greatly depreciated in value could recover the amount of such depreciation against the party who wrongfully sued out the injunction; and Riddlesbarger v. McDaniel, 38 Mo. 138, where it was held that if the party had been injured in consequence of the injunction, he was entitled to whatever damages he had sustained; that destruction of the premises or their deterioration, and all matters whereby the party had
It is no doubt true that the liability upon an injunction bond is limited to such damages as arise from the suspension or invasion of vested legal rights by the injunction; but it seems to us that in this case there was both an invasion and a suspension of the vested legal rights of the mortgagee to foreclose his mortgage and sell the property mortgaged to satisfy his claim. The rule is thus stated by Sutherland on Damages, vol. 2, p. 1118:.
“ If an owner is thus deprived of his personal property, he is prima facie entitled to recover its value; and this measure of redress has been allowed where the party obtaining the writ, during its pendency, took possession of the property, destroyed its identity and converted it to his own use;” citing Barton v. Fisk, 30 N. Y. 166.
In that case the plaintiff, claiming to be the owner of certain timber lying on the defendant’s land, sued the latter, who also claimed to own the property, to establish his title. He procured a preliminary injunction forbidding the defendants to assert their alleged ownership by suit in court, or in any other way, pending the principal suit. He failed in that suit, the court determining that the property belonged to the defendants, and not to the plaintiff. In the meantime the plaintiff carried off the timber, destroyed its identity, and disposed of and converted the proceeds to his own use; and the court held that the measure of damages which the defendants in the suit were entitled to recover in an action upon the injunction bond was prima facie the value of the property in question. Judge Denio, in rendering the opinion in this case, says:
“ This seems to me a very plain case. . . . The plaintiff’s argument is, that the loss was not occasioned
And so the efficient cause of the loss of the goods in this case was the inability of the mortgagee to pursue his legal right to sell these goods by reason of this injunction, which was based upon the bond sued on here. The opinion above was concurred in by all the judges, and a strong concurring opinion, too long for repetition here, was also rendered by Judge Hogkeboom; and in that case it was also held, under the contention that the plaintiff and his agent would be liable to an action for an unauthorized conversion of the property, that the remedies were cumulative; that the bond was intended to be a complete protection to the enjoined party from all loss which could possibly ensue in consequence thereof, so far as the same was occasioned by the act of the party applying for the injunction, or his agents.
We think it hardly worth while to multiply authorities on this proposition. It seems to us that if the complaint be true, the damages alleged were so plainly and approximately the result of the injunction that the court properly overruled the demurrer.
It is argued in the brief of the appellants that the court sustained a demurrer to the affirmative defense in defendant’s answer; but the record fails to show
We have examined the other errors alleged, in relation to the instructions and admission of testimony and the weight of testimony, and think there was no substantial error committed by the court.
The judgment will therefore be affirmed.
Hoyt, C. J., and Scott, Anders and Gordon, JJ., concur.