Baker v. Craig

• Decision Date: 09 March 1929
• Docket Number: 28,556
• Citation: 275 P. 216,127 Kan. 811
• Parties: HARPER BAKER, Appellant, v. J. W. CRAIG et al., Partners doing business as the WIZARD OIL COMPANY, Appellees
• Court: Kansas Supreme Court

275 P. 216

127 Kan. 811

HARPER BAKER, Appellant, v. J. W. CRAIG et al., Partners doing business as the WIZARD OIL COMPANY, Appellees

No. 28,556

Supreme Court of Kansas

March 9, 1929

Decided January, 1929.

Appeal from Sedgwick district court, division No. 4; ISAAC N WILLIAMS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. INJUNCTIONS--Bond--Damages Covered. An injunction bond given under our statute is intended to cover all the damages the party restrained may sustain by reason of the order being wrongfully procured, except such as are the result of malice and want of probable cause.

2. MALICIOUS PROSECUTION--Limitation of Actions--Tolling Statute. The one-year statute of limitations for instituting an action for damages for malicious prosecution is not tolled by the pendency of an action between the same parties involving property right with respect to the same property, other than those in which restraining orders have been issued.

F. S. Jackson, James E. Smith, both of Topeka, and Thomas C. Forbes, of Eureka, for the appellant.

Robert C. Foulston, Lester L. Morris, P. D. Gardiner, O. W. Helsel, James A. Conly and George W. Gardner, all of Wichita, for the appellees.

OPINION

HUTCHISON, J.:

The appeal in this case is by the plaintiff from the ruling of the trial court in sustaining a demurrer to his petition, consisting of three counts. The first count is upon an oral contract and to recover damages resulting from the breach thereof by depriving the plaintiff of the use of certain well-drilling tools and the depreciation on the value of them and the loss of tools stolen and destroyed. The second count is based upon a tort, describing the same situation as plead in the first count in language necessary and appropriate to make the same general statement of facts a tort. The third count is for malicious prosecution, involving and concerning the same subject matter. Each cause of action concludes with an allegation of the same amount of damages. A careful distinction is made in the three separate counts to clearly present the same general matter, with the evident thought of having three different avenues to one recovery by determination of jury, or possibly by timely election.

The petition sets out the substance of the oral contract and the pleadings and decisions in three former suits between the same parties. Baker, the plaintiff herein, was an experienced oil-well driller, but without equipment or funds. The four defendants were associated together as partners composing the Wizard Oil Company, controlling a large acreage of oil and gas leases on which they desired to drill several wells. The oral contract was briefly to the effect that the oil company would purchase a complete string of tools to be used to drill wells on its leases; that Baker, after drilling the first well, was to get $ 3 per foot, to be applied on account of the purchase price of the tools, and when the purchase price was thus fully paid the tools were to become his. This arrangement was made November 25, 1919. Shortly thereafter a similar oral contract was made for a second string of tools, the total original cost of both strings being $ 25,500. Under this arrangement work progressed until seven wells were finished, and a disagreement arose as to the settlement. The oil company ordered Baker off the leased property and denied him the use of the tools. On May 29, 1921, the oil company procured an order enjoining him from using the tools or interfering with the possession of them by the oil company. The injunction bond was in the sum of $ 2,500, which was later increased to $ 5,000. On June 7, 1921, the plaintiff commenced a mechanic's lien action to recover what he claimed to be due him from the oil company in addition to the purchase price of both strings of tools, viz., the sum of $ 18,000. In the injunction suit Baker answered denying generally the allegations of the petition, and by way of cross petition alleged that he was the owner of both strings of tools, and was being greatly damaged by being deprived of the use and possession of them. In the mechanic's lien suit the oil company denied generally the allegations of the petition, and by way of cross petition gave the details of the oral agreement, and alleged that Baker was to be charged with certain amounts expended on the wells and was to be credited with the difference between such expense and his earnings on the purchase price of the tools; that the expense on the wells exceeded his earnings by $ 26,000.

On March 11, 1926, the oil company filed a motion in the injunction suit asking that the petition and answer and cross petition in it be dismissed because the same matters and issues were involved in it as were in the mechanic's lien case. The court never acted on this motion, but in the absence of both parties on November 20, 1926, dismissed the injunction action without prejudice for want of prosecution. On June 13, 1927, the court approved the report of the referee in the mechanic's lien case, finding Baker to be the owner of both strings of tools, and rendering judgment in his favor for the possession of them and giving him a judgment against the oil company on his account for $ 2,800.

In August, 1927, Baker commenced an action on the injunction bond and recovered a judgment against the oil company and the sureties on the bond in the sum of $ 5,000 on November 25, 1927. No appeal was taken from this judgment nor the one in the mechanic's lien case, but both were promptly paid. This action was commenced December 19, 1927.

Our attention is called not only to the similarity but to the use of almost identical language in the action on the injunction bond and the first and second counts of the petition in this case with reference to the items of recovery, viz., damages for depreciation in value of the tools, loss of tools having been stolen and removed, and for the deprivation of the use of the tools. Plaintiff bases his loss and right to damages in the first count where a breach of contract is alleged, in the second where a tort or conversion is alleged, and in the third where malicious prosecution is alleged, not only on the procuring of the injunction by the oil company, depriving the plaintiff of the possession and use of the tools, but also upon the answer and cross petition of the oil company in the mechanic's lien suit. It is not usual that one is censurable or made subject to damages by reason of making a defense in an action brought against him, even if unsuccessful in such defense, but whether the oil company is thus made liable in these transactions is not so important when we note that the injunction suit...