State Ex Rel W. F. Bush v. Carden.

Decision Date01 March 1932
Docket Number(No. 7098)
Citation111 W.Va. 631
CourtWest Virginia Supreme Court
PartiesState ex rel W. F. Bush v. B. Z. Carden et al.

1. Injunction

In an action for damages on an injunction bond, recovery thereon may be had by motion for judgment under 56-2-5, Official Code.

2. Same

In an action on an injunction bond, when the injunction is only ancillary to the main object of the suit, counsel fees paid for services in the suit as a whole, are not recoverable.

3. Same

When an owner of a parcel of land is enjoined from erecting a contemplated building, he may recover from the injunction bondsmen for losses sustained by him which are the actual, natural and proximate result of the restraining order; and the rental value of the property of which he is deprived by reason of the injunction may be recovered as an element of damages. And, where it appears from the evidence that an injunction defendant has sustained losses of such rentals, it is error for the trial court to sustain a motion to strike out plaintiff's evidence.

Error to Circuit Court, Summers County.

Proceeding by the State, on the relation of W. F. Bush, against B. Z. Carden and others. To review an adverse judgment, plaintiff brings error.

Reversed and new trial awarded.

Thomas N. Read and T. L. Read, for plaintiff in error.

A. D. Daly and J. W. Maxwell, for defendants in error.

Lively, Judge:

Plaintiff sought, by notice of motion for judgment, to recover on a bond given by defendants in an injunction suit (Carden v. Bush, 109 W. Va. 655; 155 S. E. 914) and con- ditioned upon defendants' paying "all damages that may be sustained by any person by reason of the granting of the said injunction." The trial court sustained defendants' motion to strike out plaintiff's evidence and directed a verdict favorable to defendants.

Before discussing the errors alleged by plaintiff, we first answer defendants' inquiry as to whether an action on an injunction bond may be summarily reduced to judgment under the provisions of 56-2-5, Official Code, which provides that "any person entitled to recover money by action on any contract" may, on motion, obtain judgment therefor. It is argued that this action sounds in damages, the amount of which is uncertain and can be ascertained only upon an inquiry of damages and therefore not maintainable under that statute.

In Lambert v. Morton, 111 W. Va 25, 160 S. E. 223, it was held that the statute embraced, in addition to express contracts, those which are implied in law. Such contracts, referred to as quasi or constructive contracts, are said to cover a class of obligations where the law imposes an obligation upon defendant, notwithstanding the absence of intention on his part, and in many cases in spite of his actual dissent. Keener on Quasi Contracts, p. 5. In 6 II. C. L., 589, it is stated: '' In the case of consensual contracts the agreement defines the duty, while in the case of quasi contracts the duty defines the contract. * * * Accordingly, it has been said that neither a statute nor a rule of law raises an implied promise. There must always be the fact of consideration outside of and in addition to the statute or rule of law; and the promise is implied rather from the consideration than from the statute. The statute or the rule establishes the duty, but the consideration raises the implied promise to perform that duty." See Williston on Contracts, Vol. 1, sec. 3. Although the alleged contract is purely fictitious, recovery is possible in an action ex contractu. Comrs. v. Bloomington, 253 111. 164, 26 Am. Cas. 471, 476; 55-8-3, Code 1931. The instant case clearly comes within this class of contracts. In Stuart v. Carter, 79 W. Va. 92, 90 S. E. 537, 538, wherein it was held that "money due on a bond with collateral condition may be recovered by motion, under sec. 6, ch. 121, of the Code" (now 56-2-5, Official Code), Judge Poffenbarger stated: "A claim for mere damages for the breach of a contract is not within the statute under which the proceeding was instituted. Wilson v. Dawson, 96 Va. 687, 32 S. E. 461. The demand must be for money due upon a contract, as contradistinguished from damages arising from the breach of a contract. The remedy extends, however, to all cases in which a person is entitled to recover money by action on contract. Long v. Pence, 93 Va. 584, 25 S. E. 593. As a bond with collateral condition is proper subject matter of an action of debt or covenant, Supervisors of Jackson County v. Leonard, 16 W. Va. 470, it is a contract upon which money may sometimes, but not always, be recovered, wherefore, upon a proper showing, the remedy by motion under the statute is available. A demand for payment of money on it falls within the express terms of the statute. The mere form of the contract is immaterial. Not a word in the statute indicates purpose to limit the remedy by the form of the contract. It suffices that the money demanded is due on one." The injunction bond given by defendants was required by statute (53-5-9, Code 1931), thereby establishing an obligation to pay for any damages ensuing as a result of the injunction order; and although no express contractual relationship existed between the parties, the law having established the obligation will intercede in behalf of the injured party and impose the duty to pay. Recovery is thus predicated on money due under the contract implied in law and a proper remedy therefor is under the statute providing for motions for judgments in actions on contract,

Pacts pertaining to the injunction suit appear in the reported case of Garden v. Bush, 109 W. Va. 655, 155 S. E. 914. Repetition thereof will be made only to relate facts pertinent to an understanding of the issues in this proceeding. Defendants, owners of a parcel of real estate, entered into an agreement with E. L. Lewis and wife, owners of an adjoining lot of land, whereby the latter agreed not to erect a structure on their lot over fourteen feet in height on a certain portion of their lot. Bush (plaintiff in this proceeding) purchased the Lewis lot at a trustee's sale and commenced the construction of a building thereon. Defendants obtained a temporary injunction in September, 1927, to restrain further erection of the building, but the judgment of the circuit court perpetuating the injunction was reversed here; and later (January, 1931), the injunction was dissolved on motion in ...

To continue reading

Request your trial
12 cases
  • State ex rel. Shatzer v. Freeport Coal Co.
    • United States
    • West Virginia Supreme Court
    • 10 Marzo 1959
    ...to assist the jury in ascertaining the proper amount to be allowed. 15 Am.Jur., Damages, Section 156. See also State ex rel. Bush v. Carden, 111 W.Va. 631, 163 S.E. 54. As a general rule, the expected profits of a mercantile business are too remote, speculative, and uncertain to sustain a j......
  • Multiplex, Inc. v. Town of Clay
    • United States
    • West Virginia Supreme Court
    • 4 Octubre 2013
    ...to the main object of the suit, counsel fees paid for services in the suit as a whole, are not recoverable.” Syl. Pt. 2, Bush v. Carden, 111 W.Va. 631, 163 S.E. 54 (1932). 6. “When counsel fees and personal expenses are sought to be recovered as damages on an injunction bond, it is incumben......
  • Quintain v. Columbia Natural Resources
    • United States
    • West Virginia Supreme Court
    • 9 Noviembre 2001
    ...issued, are recoverable as an element of damages in an action upon an injunction bond." (emphasis added)); Syl. pt. 2, State ex rel. Bush v. Carden, 111 W.Va. 631, 163 S.E. 54 (1932) ("In an action on an injunction bond, when the injunction is only ancillary to the main object of the suit, ......
  • Wolverton v. Holcomb, 16263
    • United States
    • West Virginia Supreme Court
    • 18 Abril 1985
    ...main object of the suit, counsel fees paid for services in the suit as a whole, are not recoverable." Syllabus Point 2, State ex rel. Bush v. Carden, 111 W.Va. 631, 163 S.E. 54 (1932). Gerald Merceruio, Webster Springs, for William W. Talbott, Talbott & Alsop, Webster Springs, for appellees......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT