Tallassee Falls Mfg. Co. v. Parks

• Decision Date: 14 November 1911
• Citation: 2 Ala.App. 278,56 So. 588
• Parties: TALLASSEE FALLS MFG. CO. v. PARKS ET AL.
• Court: Alabama Court of Appeals

56 So. 588

2 Ala.App. 278

TALLASSEE FALLS MFG. CO. v. PARKS ET AL.

Court of Appeals of Alabama

November 14, 1911

Appeal from Circuit Court, Tallapoosa County; S. L. Brewer, Judge.

Action by J. D. Parks and another against the Tallassee Falls Manufacturing Company. From a judgment for plaintiffs defendant appeals. Reversed and remanded.

J. M Chilton and G. A. Sorrell, for appellant.

James W. Strother, for appellees.

DE GRAFFENRIED, J.

The appellant filed a bill in chancery to enjoin appellees "from selling, leasing, or disposing of, and from attempting to sell, lease, or otherwise dispose of," certain lands described in the bill. A temporary injunction was granted, and, as a preliminary thereto, appellant was required to execute a bond to appellees in the sum of $300 conditioned "to pay all damages and costs which any person may sustain by the suing out of such injunction if the same is dissolved." The bill was demurred to by the appellees, and a motion to dissolve the injunction was also filed by them in the cause. The chancellor overruled the demurrer and refused to dissolve the injunction, but, upon appeal to the Supreme Court, the bill was held to be without equity and was dismissed for that reason, and thereupon an order was made dissolving the injunction. This suit was brought by appellees against appellant for the damages sustained by them by reason of the suing out of said injunction.

The complaint sets out the bond, and then charges as follows "And the plaintiffs say the condition of said bond has been broken by the defendants, in this: that the said injunction has been dissolved, and the defendants have failed to pay the plaintiffs all such costs and damages as they have sustained by the suing out of said injunction, and the plaintiffs aver that they have been put to great expense in employing counsel, in attending court, etc., in procuring a dissolution of said injunction, and defending against the same, all of which is to the great damage of the plaintiffs in the said sum of $300." It is manifest that the only breaches of the bond assigned in the complaint are as to counsel fees and the costs incurred in attending court. To be specific, there is no assignment of a breach of the bond in so far as any loss in the depreciation of the market value of the property or the loss of rents is concerned. "An averment of a breach of a bond only entitles a plaintiff to recover what he is legally entitled to by reason of the breach." Ansly v. Mock, 8 Ala. 444. "Where the plaintiff in an...