Wood v. State ex rel. W. C. White & Co.

Ritchie, J.,

delivered the opinion of the Court.

This is a suit on an injunction bond; and this appeal relates to the damages allowed for enjoining the removal of plaintiffs’ saw-mill from the defendants’ land in Garrett County for a period of six weeks. The exceptions taken by defendants are to the rulings of the Court upon the evidence and prayers fixing the standard and the items and method of computing the damages.

It was shown in the testimony, that at the time the injunction was issued, the plaintiffs, with the knowledge of defendants, or some of them, were about to remove the saw-mill to Bedford County, Pa., where.they had bought timber on a royalty of $1 per thousand feet, and had orders for the sale of the lumber to be made on the tract.

The removal of the mill to the Bedford County land was delayed by the injunction, as stated, for six weeks, when it was dissolved. The claim of the plaintiffs was that they were entitled to recover as damages the amount of profits they might have made if they had prosecuted their' lumber business in Bedford County during that period.

As the mode of ascertaining what those profits would have amounted to, they offered proof of certain items of expense in the making of lumber from the Bedford tract, and the price obtained, at the time when they actually were at work, after the expiration of the six weeks. The items thus specified were, per thousand feet, as follows: for royalty $1, for cutting trees $1, for hauling trees to mill $2.50, for sawing $1.15, for hauling to railroad $1, for loading on cars .25, in all $13.50, as the cost of manufac *66 ture, and, as the market price at place of sale, $19.00 per thousand, feet.

To the allowance of such profits, and to this method of ascertaining the damage caused by detaining the mill, and the fixing the cost of manufacturing and the price of the lumber by figures prevailing at a time other than the six weeks when the mill was idle and the injunction in force, the defendants excepted. And their contention is, that the true rule of damages under the circumstances of this case was the rental value or hire of a mill of the capacity defendants’ mill was shown to he.

It seems to us that to enumerate certain leading items of expense, and thus assign to the saw-mill alone the whole difference between their aggregate and the price obtained, as a profit exclusively attributable to the sawmill, was incorrect. Profits are contributed to by all and not one only of the various elements which combine to produce them. All the different kinds of work and labor which enter into the manufacture of an article form the source and basis of profits; in this case, the cutting down and hauling done, &c., as well as the sawing by the mill.

The saw-mill alone cannot be deemed the only factor in producing the net result; and we think the mode of computation pursued was calculated to mislead the jury. Moreover, the possible breakage and loss of time incident to practical operations, the cost of freightage to the place of market, the expenses of general supervision, the natural wear and tear, and the use of capital, do not appear as matters of deduction in striking the balance ; all, items of consideration in carrying on the lumber business. Nor is it shown that the cost of labor and the price of lumber, articles of fluctuation, were the same during the six weeks the injunction was pending, when the profits are claimed,, as they were subsequently. The periods should have been connected in this respect.

But these defects only tend to strengthen the conviction, that the profits claimed are too uncertain, speculative and *67 contingent in their nature to furnish the true rule of damages in this case, which, in our opinion, should have been the rental value or hire of the saw-mill or one of similar capacity for the period of six weeks. The defendants’ •question in their fifth exception, “What is the fair hire for such a machine as this is?” should have been allowed. The rental value or hire of a saw-mill with a known capacity is not difficult of ascertainment. Equivalent words to “rental value” or “hire” as applied to a saw-mill would be “the value of the use of the same.” Such an inquiry furnishes a more trustworthy and definite guide to ascertain the loss sustained by its enforced idleness than a conjectural estimate of the net results of reducing to lumber an unfelled forest.

A further consideration impelling us to approve this standard, is that the suspension for six weeks does not seem to have prevented the plaintiffs from actually converting their Pennsylvania timber into lumber, and filling their orders, but merely to have delayed them in doing so for ihat length of time. To fix the damages for such a postponement would involve conjecture and difficulty; while in -ascertaining the loss of the hire or working value of the mill for six weeks, as a machine capable of sawing so much lumber per day, substantial and definite data are furnished.

The reasoning of the Court in Abbott vs. Gatch, 13 Md., 316 , and Middlekauff vs. Smith, 1 Md., 343 , in relation to the rule of damages adopted in those cases, where the •operation of flouring mills had been interfered with, we think applicable to this case.

The exception of defendants to the introduction by plaintiffs of proof of the payments of $75 to their manager for the six weeks referred to, under a subsisting contract to pay him $50 per month for his services, and the payment of $37 to the watchman for taking care of their mill during the time it was kept idle, was well taken. These outlays, evidently could not be recovered, for in addition *68 to recovering profits as from a mill in active operation, for both profits and expenses or losses, could not be recovered. Such items as the outlays mentioned, can be entertained only as independent losses resulting from the injunction. While therefore we think they should have been rejected in a calculation of profits, we think them properly admissible under the standard of damages we have indicated as the proper one, namely, the working value or hire of the mill. They were expenses necessarily incurred, from the subsisting contract and the stoppage of the mill, and are therefore properly allowable in addition to the rental of the mill; otherwise the rental would be impaired to-the extent of their amount.

The only other point presented for review is the allowance to plaintiffs of counsel fees paid by them in procuring a dissolution of the injunction.

Whatever may have been held on this subject by other tribunals, we consider that hy the United States Supreme Court, and by. our own Court of Appeals, it has already been decided that such an expenditure can not be recovered in a suit on an injunction bond. The case of Wallis, et al. vs. Dilley, 7 Md., 237 , is conclusive. In that case the defendant’s prayer was, “That the plaintiff’s are not entitled to recover upon the bond in suit for any counsel fees which they or any of them may have proven themselves to have paid for the defence of their interests in the equity proceedings offered in evidence.” This language covers fees paid for procuring the dissolution of the injunction. The Court says this prayer should have been granted, and explicitly adds: “ Whatever may be the justice of the rule, it seems to be well established that in all matters arising ex contractu, the successful party is not entitled to recover the fees which he may have paid .to his counsel,” and refers to Day vs. Woodworth, 13 Howard, 363 .

The case of Oelrichs vs. Spain, 15 Wallace, 211, was a case in equity to enforce liabilities for damages arising under certain injunction bonds and to marshal assets.

*69 (Decided 15th July, 1886.)

In considering the report of the master and the decree of the Court below, the Supreme Court says : ££ We think that both the master and the Court erred in allowing counsel fees as a part of the damages covered hv the bonds.” The Court then cites the case of Day vs. Woo dworth, as was done by this Court in 7 Md., in support of the position, and says: ££ The point here in question has never been expressly decided by this Court, but is clearly within the reasoning of the case last referred to, ( 13 Howard, 370 ,) and we think substantially determined by that •adjudication. In debt, covenant and assumpsit damages are recoverable, hut counsel fees are never included. So in equity cases where there is no injunction bond, only the taxable costs are allowed to the complainant. The same rule is applied to the defendant however unjust the litigation on the other side, and however large the expenses to which he may have been subjected. The parties in this respect are on a footing of equality. * . * * * We think the principle of disallowance rests on a solid foundation, and that the opposite rule is forbidden by the analogies of the law and sound public policy.”

Being of opinion that there was error in the rulings of the Circuit Court upon the evidence, and in the instructions in favor of the plaintiffs, and that the defendants’ rejected prayers should have been granted, we shall reverse the judgment and award a new trial.

Judgment reversed, and neto trial awarded.