Opinion
Decided June 28, 1928.
Upon a motion for assessment of damages under an injunction bond providing for indemnity against damage and costs "which may hereafter be awarded . . . by reason of this injunction," the measure of damages is not the cost of defending against the merits of the plaintiff's bill but only the damage caused by the injunction, and if no damage was caused thereby no recovery can be had upon the bond.
MOTION, for assessment of damages under an injunction bond, given in the equity proceeding heretofore reported. 82 N.H. 399.
Upon an intimation by the presiding justice that he was not satisfied of the genuineness of the document relied upon by the plaintiff, the bill was dismissed, and a hearing was had upon this motion.
The injunction order and the bond given each provided for indemnity against damage and costs "which may hereafter be awarded to him by reason of this injunction." It was found that "None of the services allowed were for the express purpose of securing a dissolution of the injunction, but were entirely in the preparation and trial in the superior and supreme courts, in defending against the illegal claim of the plaintiff." There was the further statement that "The court rules as a matter of law and finds so far as it is a matter of fact that they are proper elements for allowance as damages under the injunction bond."
The counsel fees and expenses exceed the penal sum of the bond. Recovery in the latter sum was ordered and the plaintiff excepted. The matter of taxable costs was reserved to await the outcome of the exception.
Transferred by Sawyer, C. J.
Perley Gardner, Robert W. Upton and Winthrop Wadleigh (Mr. Wadleigh orally), for the plaintiff.
Murchie Murchie (Mr. Alexander Murchie orally), for the defendant.
The law governing this case is stated in Rogers v. Clough, 76 N.H. 272, 274. "If it were not for this order, the defendants' recovery would be limited to their taxable costs. On the other hand, procuring the injunction bound the plaintiffs to comply with the conditions on which it was issued. Consequently the order limits both the amount the defendants can recover and the items of expense which are chargeable to the plaintiffs. In other words, the amount the defendants can recover in excess of their taxable costs and the items which compose it both depend on the terms of the order."
It being found that there was no damage caused by the restraint of a sale, and that the services and expenses which were allowed for "were entirely in . . . defending against the illegal claim of the plaintiff," no recovery can be had upon the bond. The condition was plain. It dealt only with loss or expense "by reason of this injunction." It did not concern the defence against the merits of the plaintiff's claim. If the injunction had not been issued, the expenses would have been incurred. They were not caused by the injunction.
The further statement of the presiding justice that "The court rules as a matter of law and finds so far as it is a matter of fact that they are proper elements for allowance as damages under the injunction bond," does not affect the result. As a ruling of law it is erroneous, and it contains no element of a finding of fact. The facts were already found, and the conclusion thereupon was one of law. State v. Railroad, 70 N.H. 421.
None of the cases cited by the defendant sustain his position. In Rogers v. Clough, supra, the bond provided for recovery of the expenses incurred in the main action. In Derry Bank v. Heath, 45 N.H. 524, the injunction stayed a suit at law; and recovery was allowed for expenses in that suit, while so delayed. There is no suggestion of liability for other expenses in that action. Solomon v. Chesley, 59 N.H. 24, was a suit on a bond given in an equity proceeding, the sole object of which was to restrain the prosecution of a suit at law. Of course the counsel fees paid in defending that bill concerned the injunction and were properly allowed.
The argument that because the court has found, in effect, that the plaintiff's whole claim was fraudulent, therefore a recovery should be allowed here, loses sight of the element that the liability sought to be enforced depends upon the terms of the order and the bond. Had the defendant desired the protection now claimed, he should have moved for a bond covering the expenses of the suit.
Exception sustained.
SNOW, J., was absent: the others concurred.