Dole v. Hickey
| Decision Date | 28 July 1893 |
| Parties | DOLE et al. v. HICKEY et al. |
| Court | New Hampshire Supreme Court |
Action by George E. Dole and Colin M. Stewart against Edward Hickey and Hannah M. Hickey for an injunction. On dissolution of injunction, defendant Hickey claimed damages on the injunction bond. Case discharged.
Facts found by a referee. A temporary injunction was issued January 16, 1880. A bond was given by the plaintiffs to the defendants, in compliance with an order made under the thirty-sixth equity rule (56 N. H. 611), conditioned that the plaintiffs would pay all damages occasioned to the defendants by the injunction in case the suit should be determined against the plaintiffs. The injunction was dissolved at the October term, 1889. In March, 1882, the defendant Edward Hickey owned the Stark Mill property, subject to a mortgage to Hiram Emery. Emery had been put in possession in a foreclosure suit, and the year of redemption bad nearly expired. March 20, 1882, Hickey quitclaimed his interest to Gilbert Soule and Charles E. Dole, predecessors in title of the plaintiffs, and they agreed with him that if they redeemed the property from the mortgage he should have the right to pay one-half of their advances, and upon such payment they would release to him one undivided half of the property. It was further agreed that Hickey should operate the lands and mill, and pay his share of the advances from the profits. Soule and Dole paid Emery $9,500, April 28, 1882,—being the sum required to redeem, less $1,000, paid by Hickey,—and took from Emery a warranty deed of the property. They operated the lands and mill themselves during the balance of that season, employing Hickey as their superintendent, at a stated salary. The next two seasons they and their successors in the title sold stump-age from the lands, and leased the mill and appurtenances to Hickey. The last lease expired May 1, 1885. When the temporary injunction was issued they were engaged in cutting logs from the lands and putting them on the mill pond, to be sawn at the mill during the following summer. Hickey, claiming to be acting for his wife (the other defendant), was also cutting logs from outside lands and hauling them onto the pond with the intention of sawing them at the mill. The injunction interrupted him. It was inconvenient for both parties to occupy the mill pond at the same time, and would have been inconvenient for them to use the mill to saw logs belonging to them severally. Immediately after the commencement of this suit, Hickey brought a bill in equity against Soule and Dole for the specific performance of the agreement to convey the property. See Hickey v. Dole, 66 N. H. 336, 29 Atl. 792. Both suits were sent to the same referee and heard together. The referee stated the account between Hickey and Soule and Dole and their successors (the plaintiffs), from which it appeared that, when the temporary injunction was issued, Soule and Dole and their successors had not received from the rents and profits of the property a sufficient sum to cancel...
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