Jesse French Piano & Organ Co. v. Forbes

• Decision Date: 28 June 1902
• Citation: 134 Ala. 302,32 So. 678
• Court: Alabama Supreme Court
• Parties: JESSE FRENCH PIANO & ORGAN CO. ET AL. v. FORBES ET AL.

32 So. 678

134 Ala. 302

JESSE FRENCH PIANO & ORGAN CO. ET AL. v. FORBES ET AL.

Supreme Court of Alabama

June 28, 1902

Appeal from city court of Montgomery; A. D. Sayre, Judge.

Action by E. E. Forbes and another against the Jesse French Piano &amp Organ Company and another on an injunction bond. From a judgment for plaintiffs, defendants appeal. Affirmed.

The plaintiffs proved the allegations of the complaint as to the institution of the suit in equity mentioned, the giving of the injunction bond, its dissolution by the judge of the city court, and the appeal to the supreme court by the complainants, but without reinstatement of the injunction pending the appeal and the affirmance in the supreme court and defendants proved that the same cause had afterwards been heard on the merits in the said city court, and that the bill had been dismissed, and that an appeal had been duly taken to the supreme court in said cause, and was then pending at the time of the trial of this cause, but said appeal was taken after the commencement of this suit. The plaintiffs also proved that they employed counsel to have the said injunction dissolved and to attend to the case throughout, but did not agree on any particular fee, but only to pay them a reasonable fee for their services in the case, and it was admitted in open court, as evidence, that no part of the fee had been actually paid to their attorneys. The following recital as to the evidence relating to the services of plaintiffs' counsel is contained in the bill of exceptions: "There was evidence tending to show that the services of plaintiffs' counsel in the lower court and the supreme court in said injunction suit, and pertaining to the injunction, were reasonably worth the fee sued for in the complaint, but one of the attorneys, testifying as to the value of such service, stated that he made his estimate upon what work the record disclosed as having been done, including the opinion of the supreme court, and upon what Mr. Holloway told him had been done; Mr. Holloway being one of the attorneys doing the work, and who was not examined as a witness." The court, at the request of the plaintiffs among other charges gave to the jury the following written charge: "If the jury believe the evidence in this case they must find for the plaintiffs." The defendants separately excepted to the giving of this charge, and also separately excepted to the court's refusal to give each of the following charges requested by them: "(1) That the plaintiffs cannot recover in this case pending an appeal to the supreme court." "(3) That the opinions of witnesses in reference to attorneys' fees, in so far as they are based on what they were told by the Messrs. Holloway or other persons not examined as witnesses, cannot be regarded, and, if it is not shown to what extent what was thus told said witnesses influenced or affected the opinion of said witnesses, then the entire opinion of such witnesses must be disregarded. (4) That the plaintiff must make out his case as to all points, and to show to the jury by competent evidence the reasonable amount of the charges sought to be enforced against the defendant, and, if there is not such evidence without an element of uncertaintytherein which the jury cannot solve, they must find for the defendants as to such matters." "(6) That the defendants are not liable for the value of the attorneys' fees for services in the supreme court in this case. (7) That if the plaintiff contracted with his attorneys to pay them a reasonable attorneys' fee for the whole case, and that service has not been completed, the plaintiff cannot recover on a quantum valebat or meruit for part of the services involved in the whole service, without at least showing, to the reasonable satisfaction of the jury, the proportion of the value of the service proposed to be recovered to the whole service. (8) That if the fee to attorneys is not established in amount by agreement with them, or a liability for a specific amount is shown, the plaintiff cannot recover in this case for such attorneys' fees upon a quantum meruit or valebat for part of such fees, if it appears that there is an agreement; for the entire fee is shown, and the ratio of the special services to the whole is not shown. (9) If the jury believe the evidence, they will find for the defendant." There were verdict and judgment for the plaintiffs, assessing their damages at $200. Defendants appeal, and assign as error the several rulings of the trial court to which exceptions were reserved.

Tyson, J., dissenting.

Gunter & Gunter, for appellants.

Holloway & Holloway and Wm. L. Martin, for appellees.

DOWDELL J.

This is a suit on an injunction bond after dissolution of the injunction, to recover damages resulting from the suing out of the writ. The damages recoverable in an action for breach of an injunction bond must be such as are the natural and proximate result of the issuance of the writ. That attorneys' fees incurred in procuring the dissolution of the injunction are such damages is not now to be questioned. The measure of such damage is the fair and reasonable value of the services rendered in procuring the dissolution of the injunction, and this without reference to the ratio the value of such services might bear to the value of services rendered throughout the entire case in which the injunction is obtained, but not to exceed what the plaintiff has contracted to pay in case the compensation has been agreed on and fixed between the plaintiff and his attorney. The price, however, fixed by contract between the plaintiff and attorney is not the measure of defendant's liability, since the plaintiff and attorney cannot by their contract place a liability on the defendant beyond and in excess of what would be fair and reasonable compensation for the services actually rendered. In the injunction suit, an appeal was taken by the defendants from the decree of the chancellor dissolving the injunction, and it is now contended, by appellants here, that there can be no recovery, in a suit on the injunction bond, for attorneys' fees incurred by the plaintiffs on such appeal. The purpose of the appeal was to review and reverse the decree dissolving the injunction, and the reversal of the decree would necessarily reinstate the injunction. Attorneys' fees incurred in resisting the effort to have the decree of dissolution set aside are as much the natural and proximate result of the issuance of the writ as are the fees incurred in procuring the dissolution in the first instance. There is no merit in the argument of counsel that attorneys' fees for resisting an application for an injunction might as reasonably be claimed as damages in the suit as fees incurred after decree of dissolution, on the appeal from such decree. Fees incurred in resisting an application for the injunction cannot possibly be damages resulting from the issuance of the writ. The bond sued on contracts to pay damages caused by the issuance of the writ, and such as are the natural and proximate consequence of its issuance, and not antecedent damages. It is insisted that what was said in Bolling v. Tate, 65 Ala. 417, 39 Am. Rep. 5, in this connection, is dictum, and should be departed from. We approve of the reasoning employed in that case, and now sanction as the law what is insisted by counsel was dictum. Bolling v. Tate, 65 Ala. 417, 39 Am. Rep. 5; Jackson v. Millspaugh, 100 Ala. 285, 14 So. 44; Cooper v. Humes, 93 Ala. 280, 9 So. 341.

A preliminary injunction, commonly spoken of as a "temporary injunction," is granted pending a hearing on the merits, and only upon the complainant's entering into bond. with surety, conditioned and payable as required by law. The statute prescribes the condition; and that condition is "to pay all damages and costs which any person may sustain by the...