Whitehead v. &dagger
| Decision Date | 09 June 1910 |
| Citation | 68 S.E. 263,111 Va. 193 |
| Court | Virginia Supreme Court |
| Parties | WHITEHEAD v. CAPE HENRY SYNDICATE et al.† |
Plaintiff in an action on an injunction bond is entitled to recover such damages as are the natural and proximate result of the wrongful act of which he complained.
[Ed. Note.—For other cases, see Injunction, Cent. Dig. §§ 586-598; Dec. Dig. § 252.*]
Plaintiff in an action on an injunction bond may recover profits for loss of his business resulting from the injunction, provided the business is an established one, and has been successfully operated for such a length of time that profits are reasonably ascertainable with certainty and definiteness.
[Ed. Note.—For other cases, see Injunction, Cent. Dig. §§ 586-598; Dec. Dig. § 252.*]
S. Injunction (§ 252*)—Action on Bond—
Dost Profits.
Where plaintiff's fishery business had been in operation for only a month, when plaintiff was compelled to discontinue it by reason of a wrongful injunction sued out by defendants, and he had no such trade established as would show with reasonable certainty what his profits, if any, would be, he could not recover for lost prospective profits in an action on the bond, v
[Ed. Note.—For other cases, see Injunction, Cent. Dig. |§ 586-598; Dec. Dig. § 252.*]
4. Appeal and Error (§ 1140*)—Affirmance
for Reduced Amount.
Where, in an action on an injunction bond, the cost of plaintiff's fish net poles and pound net, and the cost of erecting the poles and pumping and setting the nets which were rendered useless by the wrongful suing out of the injunction, was clearly proved to amount to $94.25, a general verdict for a much larger sum, including items which plaintiff was not entitled to recover, would be sustained on a writ of error to the extent of the amount so proved.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4462-4478; Dec. Dig. § 1140.*]
Error to Circuit Court of City of Norfolk.
Action of debt on an injunction bond by C. T. Whitehead against the Cape Henry Syndicate and others. A verdict having been rendered for plaintiff for $1,100 subject to a demurrer to the evidence, the demurrer was subsequently beard by another judge and sustained, from which relator brings error. Reversed and rendered.
Burroughs & Bro., for plaintiff in error.
Wm. W. Old & Son and J. Edward Cole, for defendants in error.
This is an action of debt on an injunction bond in which there have been three trials. The verdicts on the first and second trials were in favor of the plaintiff, who is the plaintiff in error, but were set aside upon the motion of the defendants. Upon the third trial there was a demurrer to the evidence, which was sustained, and judgment rendered for the defendants. To that judgment this writ of error was awarded.
Errors are assigned to the action of the court upon each of the trials, but in the view we take of the case, it is only necessary to consider its rulings on the last trial. The evidence on all material points was substantially the same on each trial, and if the demurrer to the evidence was properly sustained, in whole or in part, upon the last trial, the verdicts upon the first and second trials were properly set aside.
In the year 1904 the plaintiff obtained from the proper authorities a license to fish with a pound net in the waters of the commonwealth about a mile and a quarter east of Lynnhaven river. After the necessary preparations, he commenced fishing in April of that year, and continued his operations until the 26th of May following, about one month, when, upon a bill filed by the defendant, the Cape Henry Syndicate, he was enjoined from carrying on his business until the further order of the court on the ground that he was trespassing upon the rights of that syndicate. The injunction was subsequently perpetuated by the Circuit Court, but upon an appeal to this court was dissolved. In the meantime, however, the fishing season for which the plaintiff had obtained his license had expired.
In the bill of particulars filed with the declaration four items of damage are claimed:
(1) Costs of the suit In which the injunction was granted; (2) cost of poles for pound net; (3) cost of erecting the poles, pumping and setting; and (4) loss of sales of fish from May 26, 1904, to the 31st of January, 1905, by reason of the injunction.
The right of the plaintiff to recover damages for the fourth item, viz., loss of sales of fish whilst the injunction was in force, is the material question upon the merits involved in the case.
To sustain his right to recover that item of damages, the plaintiff was permitted, over the objections of the defendant, to introduce evidence of the net profits made by him in the month preceding the granting of the injunction. The plaintiff also introduced evidence tending to prove that the business of pound fishing was an established business; that he was fully equipped for taking and marketing fish; that the point where his business was located was a good place for taking fish; that there was a market for fish that year; that they sold for fair prices; and that the mouth of May is generally the most indifferent month during the season for fishing.
A plaintiff is entitled to recover all such damages as are the natural and proximate result of the wrongful act of which he complains. This rule is well settled; but the difficulty is in applying it to a particular case. Burruss v. Hines, 94 Va. 416, 26 S. E. 876, and authorities cited. "A plaintiff will not ordinarily, " as was said in the case cited, "be allowed to give evidence of or to recover profits or expected gains, for it is generally conjectural whether there will be any profits or gains." Profits are not excluded from recovery because they are profits, but, when excluded, it is because there are no criteria by which their amount can be ascertained with reasonable certainty or definiteness. When prospective profits or gains can be so proved, and their loss is the natural and proximate result of the wrongful act complained of, they may be recovered. Same case; Brig-ham v. Carlisle, 78 Ala. 243, 56 Am. Rep. 28; ...
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Holliday v. Sphar
... ... p. 797, § 118, as the correct statement of the ... law as regards a new business. In support of it there is ... cited the case of Whitehead v. Cape Henry Syndicate, ... 111 Va. 193, 68 S.E. 263. That case is quite instructive. It ... was a fishing case. Whitehead had obtained a license ... ...
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Holliday v. Spahr
...118, as the correct statement of the law as regards a new business. In support of it there is cited the case of Whitehead v. Cape Henry Syndicate, 111 Va. 193, 68 S.E. 263. That case is quite instructive. It was a fishing case. Whitehead had obtained a license to fish and began his After ap......
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...722. 15, 16 If the business is new and without background, there is no base from which profits may be determined. Whitehead Cape Henry Syndicate, 111 Va. 193, 68 S.E. 263. But we know of no case in Virginia in which it was held that profits from a business long established and continuously ......
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...153 S.E. 722. If the business is new and without background, there is no base from which profits may be determined. Whitehead v. Cape Henry Syndicate, 111 Va. 193, 68 S.E 263. But we know of no case in Virginia in which it was held that profits from a business long established and continuou......