Luker v. Perry
| Decision Date | 26 October 1977 |
| Citation | 351 So.2d 591 |
| Parties | John E. LUKER and Charles E. Cox v. Robert E. PERRY and Charles Cummings, Jr. Civ. 1150. |
| Court | Alabama Court of Civil Appeals |
George K. Williams of Williams, Spurrier, Rice, Henderson & Grace, Huntsville, for appellants.
James P. Smith of Ford, Caldwell, Ford & Payne, Huntsville, for appellees.
This is an appeal from a judgment for plaintiff, Robert E. Perry, after suit upon a bond for a temporary injunction executed and filed by defendants pursuant to Title 7, § 1043, Code of Alabama (1940) (Recomp.1958). We affirm.
In 1972, Cox and Perry, Inc., a corporation, brought an action against Robert E. Perry and Charles Cummings, Jr. seeking declaration of a resulting trust in favor of Cox and Perry, Inc. in the receipts to be derived by Perry from a business transaction he had entered while president of the corporation. A temporary injunction was obtained ancillary to the suit requiring that funds derived from the transaction to the credit of Perry be held until judgment in the suit. Cox and Perry, Inc. with Charles E. Cox and John Luker as sureties entered into bond in the amount of $5,000 payable to Perry and Cummings and conditioned upon payment of all damages incurred by them upon dissolution of the injunction.
Demurrer filed by Perry and Cummings to the suit was overruled. After answer, the matter was heard upon the merits and judgment was entered for defendants. The injunction continued in effect from March 1972 until final judgment and affirmance by the Supreme Court of Alabama on June 18, 1976. The total sum accumulated and withheld from Perry was $125,000.
The suit from which this appeal comes was brought by Perry, with Cummings apparently subsequently added as a plaintiff by amendment. 1 The case was submitted to the trial court, sitting without benefit of jury, upon stipulation and the testimony of Perry as to his damages. Judgment was entered in favor of Perry for $5,000.
The first issue presented is whether recovery may be had in a suit on a temporary injunction bond, when there was no dissolution of the injunction by ruling upon demurrer as to equity in the bill or upon motion to dissolve, but judgment was entered in favor of the defendants upon the merits of the suit.
We repeat a portion of what we said in the case of Union Springs Telephone Company v. Green, 47 Ala.App. 427, 431, 255 So.2d 896, 900 (1971): Our statement there is dispositive of the identical issue here. 2
The next issue presented is whether the person restrained is required to mitigate his damages while under restraint.
The answer to the issue is in the affirmative. However, whether one mitigates damages is a question of fact. Fuller v. Martin, 41 Ala.App. 160, 125 So.2d 4 (1960); 22 Am.Jur.2d, Damages, § 339. There was testimony from Perry as to how and when the withheld funds were invested in a certificate of deposit from which interest was realized. The court heard the evidence as to damages and mitigation orally and it could have determined that Perry made a reasonable effort to mitigate his...
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