Cimiotti Unhairing Co. v. American Fur Refining Co.

• Decision Date: 10 February 1909
• Docket Number: 48.
• Citation: 168 F. 529
• Parties: CIMIOTTI UNHAIRING CO. et al. v. AMERICAN FUR REFINING CO. et al. AMERICAN FUR REFINING CO. et al. v. CIMIOTTI UNHAIRING CO. et al.
• Court: U.S. Court of Appeals — Third Circuit

168 F. 529

CIMIOTTI UNHAIRING CO. et al. v. AMERICAN FUR REFINING CO. et al.

AMERICAN FUR REFINING CO. et al. v. CIMIOTTI UNHAIRING CO. et al.

No. 48.

United States Court of Appeals, Third Circuit.

February 10, 1909

S. L Moody, for appellants.

Henry Schreiter, for appellees.

Before DALLAS, GRAY, and BUFFINGTON, Circuit Judges.

DALLAS Circuit Judge.

These are cross-appeals from an order in a patent case, which was entered on February 20, 1908, upon the coming in of the report of the master, who had been appointed on February 9 1904--

'to ascertain and report to the court what loss and damages defendants had suffered, if any, by reason of the granting of the preliminary injunction against them on the 28th of August, 1902, and until the entry of the interlocutory decree entered herein on the 21st day of February, 1903.' The preliminary injunction here referred to had been granted--

'upon condition that complainants give a bond with good and sufficient surety or sureties, to be approved by the court in the sum of $15,000, to indemnify the defendant corporation, until the entry of an interlocutory decree upon final hearing herein, against loss or injury due to the improvident or erroneous grant of this order, and provided the court finally dismisses the bill of complaint herein.'

Accordingly the complainants gave a bond of the Lawyers' Surety Company of New York, by which that company undertook--

'in the sum of fifteen thousand dollars, to indemnify the defendant corporation in the above-entitled matter so enjoined, until the entry of an interlocutory decree upon final hearing herein, against loss or injury, not exceeding the said sum of fifteen thousand dollars, due to the improvident or erroneous grant of this order, and provided the court finally dismisses the bill of complaint herein; such loss or injury and damages therefor to be ascertained as the court shall direct.'

This court affirmed the order for a preliminary injunction (118 F. 838, 55 C.C.A. 513); but it reversed the subsequent decree sustaining the bill (123 F. 869, 59 C.C.A. 357), and this reversal the Supreme Court upheld on May 15, 1905, in Cimiotti Unhairing Co. v. American Fur Refining Co., 198 U.S. 399, 25 Sup.Ct. 697, 49 L.Ed. 1100. On June 8, 1907, the master reported:

'That the loss and damages suffered by the defendants by reason of the granting of the preliminary injunction against them on the 28th day of August, 1902, and until the entry of the interlocutory decree entered herein on the 21st day of February, 1903, amounts to $18,406.70.'

But the decree under review, which is copied at length in the margin, ^[1] reduced that amount to $15,000; and now on the one side it is insisted that this sum is less, and on the other that it is more, than it ought to be.

The first three specifications on behalf of the defendant below aver, in effect, that the court erred in limiting the amount of the loss and damages recoverable by it from the complainants to $15,000; and the contention in support of this averment is that, though the amount of the bond, which was executed by the Lawyers' Surety Company only, fixes the extent of its liability, yet--

'as against the complainants the defendant corporation is entitled to recover the entire amount of its loss and damages as found by the master; the office of the bond being, as to them, merely that of a collateral security for their fulfilling of the condition 'to indemnify the defendant corporation,' imposed by the court in the order of August 28, 1902.'

This contention assumes that the order just mentioned imposed a condition which in terms, at least, it certainly did not impose. Its requirement was not that the complainants must 'indemnify the defendant corporation,' but that they must 'give a bond' to indemnify it; and that these different phrases mean different things is manifest. It may be conceded that, if the injunction had issued in pursuance of a decree expressed to be upon condition that the complainants indemnify the defendant, the defendant would have been 'entitled to recover the entire amount of its loss and damages'; but we cannot agree that the requirement of a bond for $15,000 was merely a provision for 'collateral security' for the fulfillment of an obligation-- implicit, if not express-- to indemnify generally and without limitation.

None of the judicial decisions to which we have been referred appears upon examination to sustain the proposition that, where such a bond as in this case is ordered and given, the applicant for a preliminary injunction, if it be erroneously granted and issued, becomes liable for the entire amount of the loss and damage thereby occasioned to the defendant, even where that amount exceeds the penal sum of the bond. For instance, in Meyers v. Block and Meyers v. Isaacs, 120 U.S. 206, 7 Sup.Ct. 525, 30 L.Ed. 642, cited in supposed support of that proposition, the Supreme Court, speaking by Mr. Justice Bradley, said that, though by the law of the state of Louisiana (from whose Supreme Court the cases had come) damages might be recovered for suing out an injunction without just cause, independently of a bond:

'This cannot be done in the United States courts. Without a bond, no damages can be recovered at all. Without a bond for the payment of damages, or other obligation of like effect, a party against whom

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