Rees v. Peltzer

• Decision Date: 30 April 1878
• Citation: 1 Bradw. 315,1 Ill.App. 315
• Parties: JAMES H. REES ET AL.v.OTTO PELTZER ET AL.
• Court: United States Appellate Court of Illinois

1 Ill.App. 315

1 Bradw. 315

JAMES H. REES ET AL.

v.OTTO PELTZER ET AL.

Appellate Court of Illinois, First District.

April Term, 1878.

OPINION TEXT STARTS HERE

Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.

Messrs. Judd & Whitehouse for appellants; contended that the damages should have been assessed under the act of 1861, and that they could not be recovered in this action; and cited 1 Gross' Stat. 459; Laws 1861, 133; Roberts v. Fahs, 36 Ill. 268; Russell et al. v. Rogers et al. 56 Ill. 176; Brownfield et al. v. Brownfield, 58 Ill. 152; McWilliams et al. v. Morgan, 70 Ill. 551; Mix v. Vail, et al. Ill. Sup. Ct. Sept. T. 1877; Mix et al. v. Singleton, Ill. Sup. Ct. Sept. T. 1877; Rev. Stat. 1874, 580; Winkler v. Winkler, 40 Ill. 179.

That if the bond, being a statutory bond, contained conditions not authorized by the statute, such conditions should be rejected as surplusage: United States v. 195 1 Brock. 195; Dixon v. United States, 1 Brock. 177; Walker v. Chapman, 22 Ala. 116; Shunk v. Miller, 5 Pa. St. 250; Erlinger v. The People, 36 Ill. 458; Tomlin v. Green 39 Ill. 225.

That damages to only part of the obligees are not recoverable: Safford v. Miller, et al. 59 Ill. 205; Ovington v. Smith et al. 78 Ill. 250; Waters v. Simpson, 2 Gilm. 570; Sharp v. Bedell, 5 Gilm. 88; Miller v. Stewart, 9 Wheat. 680; St. L. A. & R. I. R. R. Co. v. Coultas, 33 Ill. 188; Farni v. Tesson, 1 Black. 309.

Damages accruing after dissolution of injunction are not recoverable: Elder et al. v. Sabin et al. 66 Ill. 126; Jevne et al. v. Osgood et al. 57 Ill. 340; Bullock v. Ferguson, 30 Ala. 227; Ferguson et al. v. Babers, Adm'r, 24 Ala. 402; Mix et al. v. Singleton et al. Ill. Sup. Ct. Sept. T. 1877.

As to allowance of counsel fees in estimating the damages, and insufficiency of proof thereof: Jevne et al. v. Osgood et al. 57 Ill. 340; Collins et al. v. Sinclair et al. 51 Ill. 328.

Mr. M. W. Robinson, and Mr. A. W. Green, for appellees; upon the question of counsel fees, cited Ryan et al. v. Anderson et al. 25 Ill. 372; High on Injunctions, § 973; School Directors v. Trustees of Schools, 66 Ill. 247; Mason et al. v. Shawneetown, 77 Ill. 533; Cummings et al. v. Burleson et al. 78 Ill. 281; City of Champaign v. Patterson, 50 Ill. 61.

That the act of 1861, in relation to assessment of damages on dissolution of an injunction, is not exclusive of all other modes of assessing such damages: Phelps v. Foster, 18 Ill. 309; Hibbard v. McKindley, 28 Ill. 240; Silsbee v. Lucas, 53 Ill. 479; Colcord v. Sylvester, 66 Ill. 540; Garcie v. Sheldon, 3 Barb. 232.

That damages accruing to a part only of the obligees may be recovered: Cabell v. Vaughan, 1 Saund. 291; Rollo v. Yate, Yelv. 177; Farni v. Tesson, 1 Black. 309; Pearce v. Hitchcock, 2 Com. 388; Sims & Hollis v. Harris, 8 B. Mon. 55; Hibbard v. McKindley, 28 Ill. 240; Vesey v. Mantell, 9 Mees. & W. 323; Pugh v. Stringfield, 93 Eng. C. L. 364; Mehaffy v. Lytle, 1 Watts. 314; Bird v. Washburn, 10 Pick. 223; Boyd et al. v. Martin et al. 10 Ala. 700; Sweigert v. Berk, 8 Serg. & Rawle, 306; Watts v. Sanders, 10 B. Mon. 372; Pearce v. Attrey, 14 W. Va. 22.

As to damages after dissolution of the injunction: Bentley v. Joslin, Hemp. 218; Gray v. Veirs, 33 Md. 159; Wallis v. Dilley, 7 Md. 237; Ryan v. Anderson, 25 Ill. 372.

Substantial justice has been done, and the verdict ought not to be disturbed: Newkirk v. Cone, 18 Ill. 449; Dishon et al. v. Schorr, 19 Ill. 59; McConnell v. Kibbe, 33 Ill. 174; Boyington v. Holmes, 38 Ill. 59; Pahlman v. King, 49 Ill. 266.

BAILEY, J.

This was an action of debt on an injunction bond, brought by Otto Peltzer, Gustavus R. Hoffman, Edward A. Fox, and six others, against James H. Rees, Elisha E. Hundley, Luther H. Pierce, Mahlon D. Ogden and Edward H. Sheldon.

The declaration describes a bond in the penal sum of $10,000, executed by the defendants to the plaintiffs, bearing date September 30th, 1872, and which, after reciting that said Rees, Hundley and Pierce had filed their bill of complaint in the Circuit Court of Cook county, against said Peltzer, Hoffman, Fox, and said six other obligees, for an injunction to restrain them from further proceeding to publish “Peltzer's Atlas of Chicago,” and that said court had allowed an injunction for that purpose upon said Rees, Hundley and Pierce, giving bond and security as provided by law, was conditioned for the payment by said Rees, Hundley and Pierce to said obligees of all costs and damages that should accrue by reason of the wrongful suing out of said injunction, and also all costs and damages which should be awarded against said complainants in case said injunction should be dissolved.

The circumstances out of which the controversy grew are briefly as follows: Sometime prior to the great fire of October, 1871, the firm of Rees, Pierce & Co., consisting of said Rees, Hundley and Pierce, real estate dealers, had caused to be made for their own use in their business, a complete set of maps and plats of the city of Chicago, including its several additions and subdivisions. Said maps and plats, about two hundred and eighty in number, were drawn upon a uniform scale of one hundred feet to the inch, so that each covered about eighty acres of land, and was a complete representation of the several lots, blocks, streets and alleys therein contained, with the measurements and locations thereof. These maps and plats were originally compiled by taking copies of those on record in the public offices of the county, and were afterwards improved and perfected from data derived from other authentic sources. In the course of their preparation, which had occupied many years, a large amount of money, skill, judgment and labor had been expended, whereby they had been brought to a high degree of perfection, and were the source of great profit to the proprietors. It also appears that a similar set of maps and plats of the city of Chicago, with its varions additions and subdivisions, had in like manner been procured by the firm of Ogden & Sheldon, who were also dealers in real estate, for use in their business.

After the destruction of the public records of the county by the great fire of October, 1871, these two sets of maps and plats, as it appears, were the only complete maps of Chicago in existence compiled from the public records or other authentic sources. An agreement was thereupon entered into between Rees, Pierce & Co. and Ogden & Sheldon, to use the two sets jointly, and divide equally between the two firms the profits arising therefrom. Subsequently, on application of Otto Peltzer, who was then clerk of the board of public works of Chicago, permission was given by said firms to take a copy of said maps and plats for the use of said board, upon the distinct understanding and agreement that the copy thus obtained should not be copied or published or used in any manner except for the official purposes of the board. It was afterwards ascertained that said Peltzer, notwithstanding said agreement, had taken copies of the maps and plats thus in possession of the board, and that he, in company with said Hoffman and Fox, was engaged in lithographing and publishing the same for sale as “Peltzer's Atlas of Chicago.”

To restrain the publication of said atlas, said Rees, Pierce & Co., on the 30th day of September, 1872, filed in the Circuit Court of Cook county their bill in chancery against said Peltzer, Hoffman and Fox, and six other persons, composing a firm of lithographers, who were engaged in lithographing said maps, praying for an injunction restraining such publication. On this bill the Circuit Judge endorsed an order allowing the injunction, on complainants filing a bond in the sum of $10,000, with Ogden and Sheldon as sureties, conditioned according to law. In pursuance of this order, the bond described in the declaration in this suit was executed, and an injunction issued.

On the 11th day of December, 1872, the injunction suit was heard in the Circuit Court, and upon such hearing the bill was dismissed for want of equity. The complainants, the instant this decision was rendered, took an appeal therefrom to the Supreme Court, and filed their appeal bond in the penal sum of $20,000, conditioned for the due prosecution of said appeal and the payment of costs, interest and damages rendered or to be rendered against the complainants, in case said decree should be affirmed in the Supreme Court. It appears that no suggestion of damages was filed in the Circuit Court at the time of the entry of the decree dismissing the bill, and no damages were awarded against the complainant in that court in the chancery suit. On the 16th day of June, 1875, the Supreme Court rendered its decision affirming the decree of the Circuit Court.

On the trial of the present suit, appellees were permitted to prove the additional expense and labor to which Peltzer, Hoffman and Fox were necessarily put in publishing their atlas by reason of said injunction, both before the entry of the decree of the Circuit Court and during the pendency of said appeal, and also the reasonable value of counsel fees for services in litigating the injunction suit, both in the Circuit and Supreme Courts. The jury found the issues for appellees, and assessed the damages sustained by Peltzer, Hoffman and Fox by reason of the breaches of said bond at $6,886, specifying in their verdict the items of which said damages were composed, as follows: For legal services, $2,500; for the expenses of getting out the new maps, $2,663; for interest on same from June 9th, 1873, to December 8th, 1877, $723; for extra services by Peltzer, $1,000. On this verdict judgment was rendered in favor of appellees against appellants for $10,000 debt, and $6,886 damages, the debt to be discharged on payment of the damages.

Appellants have urged a number of grounds for the reversal of this judgment, which, so far as we deem necessary to a proper decision of the case, we...