Fullerton Lumber Co. v. Torborg

• Decision Date: 11 January 1957
• Citation: 80 N.W.2d 461,274 Wis. 478
• Parties: FULLERTON LUMBER CO., a foreign corporation, Appellant, v. Albert C. TORBORG, Respondent.
• Court: Wisconsin Supreme Court

Page 461

80 N.W.2d 461

274 Wis. 478

FULLERTON LUMBER CO., a foreign corporation, Appellant, v. Albert C. TORBORG, Respondent.

Supreme Court of Wisconsin.

Jan. 11, 1957.

Dissenting Opinion Jan. 17, 1957.

Moss & Wickhem, Janesville, for appellant.

C. C. Mullarkey, Clintonville, and Edward J. Hart, Waupaca, for respondent.

STEINLE, Justice.

The defendant contends that since the trial court by its judgment complied exactly with the mandate of this court which directed only that the trial court determine the extent of time as to which the restrictive covenant is reasonable and necessary for plaintiff's protection, and the enjoining of the defendant from breach of the covenant, it has fulfilled its duty under the law and that it is powerless to properly entertain consideration of the damage issue raised under the pleadings. In support of this position the defendant relied upon sec. 274.35(1), Stats., and also upon many taxts and case authorities to the effect that when a cause is remanded, a trial court has no jurisdiction except to proceed in accordance with the mandate, and that any proceedings contrary thereto must be treated as null and void.

Sec. 274.35(1), Stats., provides:

'Upon an appeal from a judgment or order or upon a writ of error the supreme court may reverse, affirm or modify the judgment or order, and as to any or all of the parties; and may order a new trial; and if the appeal is from a part of a judgment or order may reverse, affirm or modify as to the part appealed from. In all cases the supreme court shall remit its judgment or decision to the court below and thereupon the court below shall proceed in accordance therewith.'

Foremost among the text and case authorities cited by the defendant in support of his position are: 9 Bancroft's Code Practice and Remedies, Appeal and Error, pp. 9769, 9777, sec. 7429; 3 Am.Jur., Appeal and Error, pp. 730, 731, sec. 1234, pp. 733, 734, sec. 1237; 5 C.J.S., Appeal and Error, § 1966, pp. 1512, 1513; Whitney v. Traynor, 1890, 76 Wis. 628, 45 N.W. 530; Patten Paper Co., Ltd. v. Green Bay & Mississippi Canal Co., 1896, 93 Wis. 283, 66 N.W. 601, 67 N.W. 432; Bostwick v. Mutual Life Ins. Co., 1904, 122 Wis. 323, 99 N.W. 1042; Halsey v. Waukesha Springs Sanitarium, 1906, 128 Wis. 438, 107 N.W. 1; Monahan v. Fairbanks-Morse Mfg. Co., 1912, 150 Wis. 512, 137 N.W. 748; Tomberlin v. Chicago, St. P., M. & O. R. Co., 1933, 211 Wis. 144, 246 N.W. 571, 248 N.W. 121; State ex rel. Littig v. Superior Court, 1939, 231 Wis. 58, 285 N.W. 419; State ex rel. Lisbon Town Fire Ins. Co. v. Crosby, 1942, 240 Wis. 157, 2 N.W.2d 700.

These taxts and cases indicate that when a case is remanded, the trial court must comply with the mandate of the appellate court, even though there is error therein; that the trial court has no power to retry the case or go back to the evidence produced upon the first trial, and therefrom make additional findings so as to uphold and cure a judgment which has been held erroneous and reversed; that the trial court may not intermeddle with the decree further than to settle so much as has been remanded, without recision or modification; that the litigant is concluded by the mandate as to all matters presented or which might consistently with legal rules have been presented to the appellate court upon the appeal.

While the principle pointed out by the defendant is correct, it is not applicable to the facts here. The consideration sought by the plaintiff is not inconsistent with the direction of this court's mandate. The rule relevant to the instant matter is stated is follows: Where a mandate directs the entry of a particular judgment, it is the duty of the trial court to proceed as directed. The trial court may, however, determine any matters left open, and in the absence of specific directions, is generally vested with a legal discretion to take such action, not inconsistent with the order of the upper court, as seems wise and proper under the circumstances. 9 Bancroft's Code Practice and Remedies, Appeal and Error, p. 9770, sec. 7429. On remand the lower court has jurisdiction to take such action as law and justice may require under the circumstances as long as it is not inconsistent with the mandate and judgment of the appellate court. 5 C.J.S., Appeal and Error, § 1965, p. 1510. In cases in which the appellate court reverses the decree and remands the cause to the lower court for further proceedings, that court can carry into effect the mandate of the appellate court only so far as its direction extends; but the lower court is left free to make any order or direction in further progress of the case, not inconsistent with the decision of the appellate court, as to any question not presented or settled by such decision. 3 Am.Jur., Appeal and Error, p. 729, sec. 1233.

An examination of the record of the trial of this case discloses that some evidence was presented by the plaintiff with respect to the damages alleged to have been sustained. However, the trial court made no finding with respect to damages, and the item of damages was not disposed of by the judgment. Obviously, since the trial court had determined that the restrictive covenant was invalid, it considered that there was no need to rule upon the issue of damages. By its judgment it had ordered the dismissal of the complaint. The sole issue before this court on the first appeal concerned the validity of the restrictive covenant. The item of damages was not referred to by either party on the appeal, nor was it considered or treated in the decision of this court. Until the injunction was issued by the trial court under the direction of this court's mandate, the amount of damage sustained by the plaintiff was unascertainable with respect to its entirety, for neither the counsel nor the court were in a position to have known as to when the injunction would be ordered. We are in accord with the plaintiff's position that the issue of damages entered the case when this court determined that the plaintiff was entitled to injunctional relief. This court's mandate settled for all time the issue of the validity of the restrictive covenant. When, after remand, the trial court determined the time limitation of the covenant, there developed an interlocutory status with respect to the plaintiff's cause of action. Notwithstanding the trial court's declination on December 15, 1955 (the return day of the plaintiff's motion) to fix the time for presentation of further evidence regarding damages, and despite its ruling that no further evidence would be permitted under the complaint in this action, the trial court intimated that the plaintiff might possibly be entitled to seek damages in another action. The prevention of multiplicity of suits is one of the reasons for the awarding of damages by a court of equity, when it has jurisdiction of a subject matter. Wright v. Scotton, 1923, 13 Del.Ch. 402, 121 A. 69, 31 A.L.R. 1162.

It is well-established in this state that if a court of equity takes jurisdiction of a matter, it will retain jurisdiction for the purpose of doing complete justice between the parties, and will in a proper case, not only extend its equitable remedy, but will also permit the recovery of damages. Mitchell Realty Co. v. City of West Allis, 1924, 184 Wis. 352, 199 N.W. 390, 35 A.L.R. 396. See also Carthew v. City of Platteville, 1914, 157 Wis. 322, 147 N.W. 375; St. Croix Consol. Copper Co. v. Musser-Sauntry, Land Lodging & Mfg. Co., 1911, 145 Wis. 267, 130 N.W. 102; McLennan v. Church, 1916, 163 Wis. 411, 158 N.W. 73; Dells Paper & Pulp Co. v. Willow River Lumber Co., 1919, 170 Wis. 19, 173 N.W. 317.

It is also a rule established by this court that in an equitable action to enjoin future breaches of a contract, the court may also award damages arising from the breach and which occurred during the litigation. My Laundry Co. v. Schmeling, 1906, 129 Wis. 597, 109 N.W. 540 involved a restrictive covenant in the sale of a business where seller agreed not to compete for a period of five years. When the seller violated the agreement, suit was commenced to enjoin the violation. The trial court held the restrictions reasonable and the contract enforceable. It allowed plaintiff $74 damages because it was compelled to incur extra expense by filling the place of two employees that were hired by the defendant. The award of damages was assigned as error. At page 611 of 129 Wis., at page 546 of 109 N.W., the court said:

'That is predicated on the theory, in part, that the complaint contains no claim for damages, which seems contrary to the fact; and again upon the theory that no damages were recoverable except such as were suffered before the action was commenced. In an action of this sort it is sufficient to allege an actual breach of the agreement and that damages have accrued, or will accrue, unless the court interferes to prevent a continuance of the breach, which will otherwise occur, and allegations otherwise bringing the case under a recognized head of equity jurisdiction. In case of the primary right involved being established in favor of the plaintiff, the court having jurisdiction of the parties and subject-matter may, properly, [in order to] do complete justice in the matter, rendering it unnecessary to sue at law for damages happening during the litigation, as ancillary to the principal matter of relief, award plaintiff compensation for such damages. The rule on that subject is quite ancient.'

The plaintiff in this action now seeks leave to present evidence unavailable to it at the time of the trial regarding damages, and also to present evidence of damages sustained during the course of litigation and until the injunction was issued. We are of the opinion that the plaintiff is entitled to the consideration which it seeks. There is no need for the commencement of another suit. The granting of the opportunity as requested is in nowise inconsistent with the mandate of this court...