State Ex Rel W. F. Bush v. Carden.
Decision Date | 01 March 1932 |
Docket Number | (No. 7098) |
Citation | 111 W.Va. 631 |
Court | West Virginia Supreme Court |
Parties | State 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.
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: 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: 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-
State ex rel. Shatzer v. Freeport Coal Co.
...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
...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
...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
...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......