Stone v. Hunter Tract Imp. Co.

• Decision Date: 01 April 1912
• Citation: 68 Wash. 28,122 P. 370
• Parties: STONE et al. v. HUNTER TRACT IMPROVEMENT CO. et al.
• Court: Washington Supreme Court

122 P. 370

68 Wash. 28

STONE et al. v. HUNTER TRACT IMPROVEMENT CO. et al.

Supreme Court of Washington

April 1, 1912

Department 1. Appeal from Superior Court, King County; Wilson R. Gay Judge.

Action by Susie Stone and her husband against the Hunter Tract Improvement Company and another. From a judgment for plaintiffs, defendants appeal. Affirmed.

Defendant Hunter Tract Improvement Company, sold a lot in an addition platted by it to plaintiffs' assignor, and approved the assignment, but afterwards sued to cancel the assignment on the ground that its approval was made through mistake and without knowledge that plaintiffs were colored persons, and also sued out an injunction restraining plaintiffs from building a house thereon pending its appeal, claiming that plaintiffs could not build on the lot because they were colored persons.

Hughes McMicken, Dovell & Ramsey, and Otto B. Rupp, all of Seattle for appellants.

Andrew R. Black and Ralph Simon, both of Seattle, for respondents.

CHADWICK J.

This suit was brought by the plaintiffs to recover damages for the wrongful suing out of an injunction which was continued pending an appeal to this court. Hunter Tract Imp. Co. v. Stone, 58 Wash. 661, 109 P. 112.

Under the rulings of the trial judge, the only question left in the case is whether a true measure of damages was given to the jury. Plaintiffs had begun the erection of a six-room dwelling house to cost $2,300, when the work was arrested by the lower court. After the case had been decided on appeal and the remittitur sent down, plaintiffs erected a dwelling costing less money than the one contemplated. The testimony shows that the contractor threw up the contract after a time on account of the delay and increased cost of wages and material. Plaintiffs set up several items of damage, all of which were denied by the court, except the reasonable rental value of the property during the time the case was pending. The court told the jury that they might find as damages the rental value of the property if the house had been built from the 15th day of May, 1909, the time when the building was to be completed, until the release of the restraining order. The plaintiff's testimony is to the effect that $40 was a reasonable rental value, while the testimony of the defendant is that $25 is a fair rent. The jury returned a verdict for $525. From a judgment upon the verdict, defendants have appealed.

It is contended that only nominal damages should have been allowed, inasmuch as the law will not take care of damages which are remote, conjectural, or speculative, that no house was on the property during the time the injunctions were in force, and that the rental value of a house that had not been built was not a proper measure, it being admitted, or rather not denied, that the lot without the house had no rental value. Our first impression was that this theory had merit, but a more careful consideration of the principle involved impels us to hold that plaintiffs are entitled to recover damages for the loss of the use of the property, to be measured by the rental value, or what it would have been worth to respondents had they been allowed to build a house according to their original design.

The measure of damages in a case where a person is prevented by injunction from completing a house cannot be defined with any degree of accuracy. It may be said to be the just application of the rule of reason to the facts of a particular case; or, as stated by Mr. High: 'In determining the amount of damages to be allowed upon the dissolution of an injunction restraining one from exercising acts of ownership over his real property, the courts are not governed by arbitrary rules, but proceed upon equitable principles; the defendant being entitled to such damages as are the necessary and proximate result of such deprivation.' High, Injunctions (4th Ed.) § 1673; Sutherland, Damages (3d Ed.) § 527; Rice v. Cook, 92 Cal. 144, 28 P. 219; Alexander v. Colcord, 85 Ill 323; Hermann v. Allen (Tex. Civ. App.) 118 S.W. 794. Now, in this case, although it is contended on the authority of Southern Ry. Co. v. Pardue, 123 Tenn. 376, 131 S.W. 862, that damages cannot be recovered for the loss of rent for a building that was not built, we nevertheless believe that, where the facts show that the respondents were in the act of building, and, but for the act of the appellant, would have erected a building according to the plans which had been drawn for that purpose, and where they did actually build a house after the termination of the suit and for the uses contemplated, the true measure of damages is the rental value of the property with the improvements as designed. Mr. High cites the case of Roberts v. White, 73 N.Y. 375, to sustain the proposition that loss of rent is an item of damages where a party was restrained from tearing down a wall alleged to be a party wall, intending to erect a building, where the result of the injunction was to interrupt and postpone the plans and purposes of the owner. The same rule is announced in Hutchins v. Munn, 209 U.S. 246, 28 S.Ct. 504, 52 L.Ed. 776. We see no difference in principle between this case and that of Hermann v. Allen, supra, where the plaintiff in the suit had been enjoined from removing a store building from a lot...