Warren Const. Co. v. Grant

Decision Date02 June 1931
Citation299 P. 686,137 Or. 410
PartiesWARREN CONST. CO. v. GRANT ET AL.
CourtOregon Supreme Court

Appeal from Circuit Court, Multnomah County; C. H. McColloch, Judge.

Action by the Warren Construction Company against U.S. Grant and others. Judgment for plaintiff, and defendants appeal.

Modified and remanded, with directions.

BELT ROSSMAN, and KELLY, JJ., dissenting.

John W. Kaste and Dey, Hampson & Nelson, all of Portland, for appellants.

Wood Montague & Matthiessen and Jay Bowerman, all of Portland, for respondent.

CAMPBELL J.

On July 12, 1920, there was filed in the circuit court of Oregon for Multnomah county a complaint by the defendants herein against the highway commission praying for an injunction against the building of a certain portion of the west side Pacific Highway in Polk county. Later the Warren Construction Company, plaintiff herein, was also made a party defendant in that suit. On July 26, 1920, a restraining order was made by the presiding judge enjoining the therein defendants from proceeding with the construction work on that part of the highway described in the complaint; said order "to be effective upon the filing with the clerk by the plaintiffs of a bond in the sum of $10,000 to be approved by the court conditioned that plaintiffs will pay * * * such damages not exceeding $10,000, as defendants or either of them may sustain by reason of the injunction, if the same be wrongful or without sufficient cause."

This order was served on the Warren Construction Company July 27, 1920. On August 2, 1920, all of the plaintiffs therein, except Oscar Hayter, executed the bond required by the order. On August 7, 1920, a motion to dissolve the temporary injunction was overruled by the court. The case came on for trial on August 30, 1920, and on September 9, 1920, the court rendered its decision dismissing the case and dissolving the injunction.

On July 1, 1922, the complaint in the instant case was filed; this being an action on the injunction bond filed in the above suit. Plaintiff alleges the filing of the above suit for injunction and the giving of the bond, and that it obeyed the injunction, and as a result thereof was damaged in the sum of $9,022.26. On stipulation, the damages were itemized as follows:

Labor dismantling plant ............................................. $ 403.68 Plant watchman during the period August 8 to September 22, 1920 ........ 150.00 Re"erection of plant ................................................... 320.92 Loss of time of employee at plant during period of injunction ........... 99.48 Traveling expenses of employees incurred by reason of suspension of work ................................................................. 136.35 Freight on equipment used else where during period of injunction ....... 396.52 Interest on state estimates deferred during injunction ................. 506.15 Salaries, superintendent and cashier connected with work at all times ................................................................ 609.16 Rental of equipment remaining on work 43 days at $100 per day ........ 4,300.00 Equipment rental for additional time required to complete work by reason of injunction, 14 1/2 days at $100 per day .................. 1,450.00 _________ Total ........................................................... $8,272.26

Through dilatory pleas, stipulations, and an "Alphonse and Gaston" attitude between opposing counsel, the case was not put at issue until April, 1929.

The defendants' answer, in effect, denied the issuance of an injunction and any damages flowing therefrom. For a further and separate answer and defense they set up all the proceedings had in the injunction suit, including the separate answer and defense therein filed by the Warren Construction Company, a copy of the restraining order, a copy of the affidavit of Raymond D. Hoyt, the then manager of the Warren Construction Company, which affidavit was filed in support of a motion to dissolve the temporary injunction, and a copy of the decree made by the court in that suit. To this answer the plaintiff filed its reply, which amounted to a practical denial of the new matter alleged in the defendants' answer.

Shortly thereafter, it was tried and judgment entered May 9, 1929. Both parties waived a trial by jury and submitted the case to the court. At the close of plaintiff's case in chief, defendants moved for a nonsuit, which was denied. Again at the close of all the testimony, defendants moved for a directed verdict, which was also denied, and exceptions duly saved to the ruling of the court.

The court made findings of fact in which he found in favor of the plaintiff and against the defendants, and that the defendants were damaged as follows:

1. Expenditure for labor in dismantling plant ....................... $ 403.68 2. Wages of plant watchman during the suspension of work ............... 150.00 3. Re"erection of plant ................................................ 320.92 4. Interest on moneys for the period during which payment was delayed by injunction computed at 7 per cent., which the court finds plaintiff was obliged to pay upon said amount of moneys during that period ................................................... 242.21 5. Salary of cashier ................................................... 235.00 6. Loss of use of equipment (charged by plaintiff as equipment rental) during the period while the work was stopped by in junction, to wit, from August 3d, date of filing bond, to September 9th, date of Judge McCourt's decision, 37 days, and for the plant and the working crew, and also for delay in completing the work due to rainy weather computed by the court to be 10 days, all of which times are found by the court to be a reasonable allowance at $50 per day ........................................... 2,350.00 _________ Total ........................................................ $3,701.81

These findings are in the nature of a special verdict on each item; that is, he made a finding on each item separately and upon these findings based a general verdict. Those items, upon which there was competent evidence to support, we may not disturb. On those items that are not supported by competent evidence, or in excess of the amount shown by competent evidence, we may review.

The defendant, Oscar Hayter, not having signed the bond, no judgment could be recovered against him, and we need not further refer to that fact when speaking of the defendants.

The case wherein the defendants herein were plaintiffs and secured the injunction order, for convenience we will hereafter refer to as the injunction suit.

The first contention of defendants is that the restraining order issued in the injunction suit was void. The facts upon which they base this contention are as follows: The motion for the temporary injunction was based on the complaint and affidavits. A hearing, in which both parties participated, was had before the order was issued. The order, so far as it is material to the determination of this case, reads as follows:

"* * * And the defendant, Highway Commission, and defendant, Warren Construction Company, are hereby enjoined from continuing in the work of constructing or improving that portion of said road described in plaintiffs' amended complaint from Rickreall to Monmouth; save and except that said defendants may finish such portion of said highway as is now rocked and dressed ready for the top dressing, or top surface, but not to exceed 1000 feet north of the finished pavement as now laid, and said Highway Commission is enjoined from expending any of the funds of the Highway Commission in furtherance of said work.

"This order to become effective upon plaintiffs' filing with the clerk of this court a bond in the sum of $10,000 to be approved by the court conditioned that plaintiffs will pay all costs and disbursements that may be decreed to defendants and such damages not exceeding $10,000, as defendants, or either of them, may sustain by reason of the injunction, if the same be wrongful or without sufficient cause."

The usual practice of the circuit courts of the state in issuing temporary injunctions after a hearing of both parties is: When in the judgment of the court such an order should be made, he announces from the bench that fact and fixes the amount of the bond, and requests the attorney representing the party asking for the injunction to prepare the order, and also states that the order will be entered on the filing and approval of the bond. Until these conditions are complied with, the order is ineffective. The restraining order in question, it will be observed, made use of the words "this order to become effective upon plaintiffs' filing * * * a bond." The order permitted the therein defendants to proceed with considerable construction work. It does not appear that they were in any wise hampered in their operation until long after the bond was filed. The bond being filed on August 3, 1930, the defendants did not suspend operations until August 9th; that is, they had enough work on the job that the order did not interfere with to keep their plant running until that date when a portion of their plant was shut down.

The order in itself fixed the time when it would be effective. It says, in effect: When a bond is filed and approved, stop work. Until this is done, you may proceed. It was irregular but not void. It may be conceded that a more apt form of order could have been used; yet the common sense meaning that the man of average intelligence would put upon the order is that it does not enjoin anything until the bond is filed; that is, it does not, nor was it intended to, actually become an injunction until the conditions precedent...

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  • Warren Const. Co. v. Grant
    • United States
    • Supreme Court of Oregon
    • September 22, 1931
    ...Appeal from Circuit Court, Multnomah County; C. H. McCulloch, Judge. On petition for rehearing. Petition denied. For original Opinion, see 299 P. 686. John W. Kaste and Dey, Hampson & Nelson, all Portland, for appellants. Wood, Montague & Matthiessen and Jay Bowerman, all of Portland, for r......

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