C. H. Albers Commission Co. v. Spencer

• Citation: 236 Mo. 608,139 S.W. 321
• Parties: C. H. ALBERS COMMISSION CO. et al. v. SPENCER et al.
• Decision Date: 01 July 1911
• Court: United States State Supreme Court of Missouri

139 S.W. 321

236 Mo. 608

C. H. ALBERS COMMISSION CO. et al. v. SPENCER et al.

Supreme Court of Missouri, Division No. 1.

July 1, 1911.

Motion to Modify Overruled July 12, 1911.

1. APPEAL AND ERROR (§ 488) — DECREE FOR INJUNCTION — DISSOLVING INJUNCTION — SUSPENSION BY APPEAL.

Neither a decree for an injunction nor one dissolving an injunction is suspended by appeal.

2. APPEAL AND ERROR (§ 488) — TEMPORARY INJUNCTION — APPEAL — BOND — EFFECT.

A bond for an appeal, operating as a mere supersedeas on costs, etc., does not revive an injunction dissolved by the trial court, unless the trial court orders the continuance of the injunction pending appeal on terms fixed.

3. INJUNCTION (§§ 148, 239) — TEMPORARY INJUNCTION — BONDS.

An injunction, whether the main purpose of a bill or merely ancillary thereto, may not be issued unless an injunction bond is given, and the sureties are liable for the damages occasioned by the wrongful issuance of an injunction subsequently dissolved by the trial court.

4. BONDS (§ 62) — STATUTORY BONDS — LIABILITIES.

The liability of a surety on a statutory bond cannot be enlarged by implication beyond its terms and its statutory office.

5. INJUNCTION (§ 186) — WRONGFUL ISSUANCE OF INJUNCTION — DAMAGES.

The measure of damages for wrongfully suing out a temporary injunction subsequently dissolved by the trial court, is the compensation for the losses sustained by defendant which are the actual, natural, and proximate result suffered while the injunction is operative.

6. INJUNCTION (§ 252) — DAMAGES — ATTORNEY'S FEES.

Attorney's fees for services incurred by defendant in procuring the dissolution of a temporary injunction wrongfully sued out are a part of the damages, but, where the injunction was dissolved below, the services of attorneys to resist its re-establishment on appeal, there being no supersedeas, cannot be recovered on the bond.

7. APPEAL AND ERROR (§ 1151) — DISPOSITION OF CASE ON APPEAL — CORRECTION OF ERRONEOUS JUDGMENT.

Where the damages allowed on an injunction bond for the wrongful issuance of a temporary injunction, subsequently dissolved, include damages not recoverable, and the amount of such damages cannot be separated from the damages properly allowed, the assessment of damages must be reversed for correction by the trial court, but where the erroneous damages can be separated, the court, on appeal, may award judgment for the proper damages only.

8. INJUNCTION (§ 186) — INJUNCTION BONDS — LIABILITY.

The damages suffered by the issuance of a temporary injunction, subsequently dissolved, restraining the payment of money on deposit in a bank, include interest from the date of the injunction to the date of dissolution by the trial court, but not interest from the latter date to the date of affirmance on appeal.

9. INJUNCTION (§ 252) — INJUNCTION BOND — DAMAGES — ESTOPPEL.

A member of an exchange sold to another member thereof wheat for future delivery, subject to the rules of the exchange, and deposited in a bank a sum to secure performance of his contract of sale. He sued in equity to cancel the contract and to recover the deposit and obtained a temporary injunction restraining the payment of the deposit. The trial court dissolved the injunction, but in view of the rules of the exchange the deposit was not paid over. Held, that interest on the deposit subsequent to the dissolution of the injunction was not recoverable as damages on the injunction bond.

10. APPEAL AND ERROR (§ 1203) — AFFIRMANCE — TEMPORARY INJUNCTION — ASSESSMENT OF DAMAGES.

Under Rev. St. 1909, § 2038, authorizing appeals from orders dissolving injunctions, the trial court, on the Supreme Court affirming an order dissolving a temporary injunction, may assess the damages caused by the wrongful issuance of the injunction without awaiting a disposition of the case on the merits.

11. INJUNCTION (§ 187) — WRONGFUL ISSUANCE OF INJUNCTION — DAMAGES.

Where the motion to assess damages for suing out an injunction was filed immediately on the dissolution of the injunction by the trial court, and a supplemental motion was filed which did not demand damages as the actual, natural, and proximate result of the injunction, the supplemental motion was without effect, and the original motion was the motion justifying the assessment of damages.

12. INJUNCTION (§ 241) — BONDS — LIABILITY.

Where a temporary injunction is issued against several persons whose interests are several, the liability of the sureties on the bond is several, and on the dissolution of the injunction any defendant may proceed by motion separately for the assessment of damages.

13. INJUNCTION (§ 187) — ASSESSMENT OF DAMAGES — MOTION.

A motion to assess damages on the dissolution of a temporary injunction, which states the grounds covering the elements of damages demanded with reasonable precision, is sufficient on which to assess the damages.

Appeal from St. Louis Circuit Court; Jesse A. McDonald, Judge.

Action by the C. H. Albers Commission

Company and others against Mary E. Spencer, executrix, and others. From a judgment assessing damages on the dissolution of injunctions, plaintiffs appeal. Reversed and remanded.

See, also, 205 Mo. 105, 103 S. W. 523, 11 L. R. A. (N. S.) 1003.

Barclay, Fauntleroy & Cullen, for appellants. Judson & Green, for respondents.

LAMM, J.

This is an appeal, by the principal and sureties on injunction bonds, from the assessment of damages on motions on the dissolution of five injunctions. From a judgment assessing such damages at $10,867.11, said principal and sureties appeal.

A short history of the litigation is not amiss, viz.: In December, 1903, the C. H. Albers Commission Company (hereinafter called appellant) brought five suits in equity the first against John T. Milliken, Corwin H. Spencer, the Merchants' Exchange of St. Louis, the National Bank of Commerce, in St. Louis, Thomas Akin, and thirteen others; the second against Sherry and Bacon and the same defendants in the first suit, excepting Thomas Akin; the third against William H. Gardner and the same defendants in the first suit, omitting Thomas Akin; the fourth against John Mullally Commission Co. and the same defendants in the first suit, omitting Thomas Akin; and the fifth against Ballard, Messmore & Co. (naming the members of the same) and the same defendants in the first suit, omitting Thomas Akin. These suits had a common object and pertain to the same subject-matter — a "deal" in No. 2 red winter wheat. At a certain time thereafter Corwin H. Spencer departed this life, and Harlow B. and Mary E. Spencer, nominated as executor and executrix, respectively, in his will and who took upon themselves the burden of administration, were brought in as parties defendant. Those defendants having a substantial money interest in the subject-matter were Spencer and Milliken. Some of the others were their brokers in buying No. 2 red winter wheat for December, 1903, delivery — such purchases evidenced by contracts. The National Bank of Commerce was made a party because it held certain deposits made by plaintiff to cover "margins" in that deal. The Merchants' Exchange and its directors were made parties because the contracts for wheat were made on the floor of that Exchange and were subject to its rules; all the principals and brokers being members.

During September, October, and November, 1903, Spencer and Milliken (speaking of the two in the singular) were a "bull," and the appellant was a "bear" on the red winter wheat market. We may say, in passing (speaking in figure) that the particular bull in question was a dangerous animal, as every bull — except the harmless variety known as the Irish bull — is now and then. He had hay upon his horn, a sign of tossing and goring. (Fœnum habet in cornu, as put by Horace.) During those months the corporate appellant sold to Spencer and Milliken about 300,000 bushels of No. 2 red winter wheat at from 80 to 84 cents for future delivery, with the option to deliver on any day during December, 1903. During that December the market price of No. 2 red winter wheat in the St. Louis market ranged from 90 to 93 cents. Present rumors of war, a short crop and heavy selling, the market price tended up and seemed stiffly buoyant, and the financial estimate the corporate appellant put upon its judgment as a seer in forecasting the market price of red winter wheat for December, as evidenced by its said contracts, was wide of the mark. Accordingly, it stood to lose heavily to Milliken and Spencer. On December 31st, the last day of delivery, the market closed at 92 cents. To secure margins against a rising market, it had deposited from time to time with the National Bank of Commerce about $37,000. That bank issued certificates of deposit for these margins, which, by their terms, were payable on the indorsement of the seller and buyer, or by virtue of an order and indorsement of the board of directors of the Exchange. In this condition of things appellant, as seller, refused to indorse them over to Milliken and Spencer. Not only so, but, to keep said directors from making an order indorsing the certificates under the rules of the Merchants' Exchange, five suits (those heretofore mentioned) were brought, each charging an unlawful combination to control prices, a "corner" by Spencer and Milliken and their confederates to raise the price of No. 2 red winter wheat for December delivery, to control the elevator capacity contributing to the St. Louis market, and by their unlawful conspiracy to forestall the St. Louis market in red winter wheat, and to cause it to reach and remain at a fictitious and grossly excessive price. It was further charged that the enumerated acts of Spencer and Milliken and others were in violation of the law for the prevention and suppression of pools, trusts, and conspiracies to raise or control the price of commodities; that the board of directors of said Exchange were claiming power to...