Appeal from city court of Birmingham; W. W. Wilkerson, Judge.

Action by W. H. Millspaugh and others against J. F. B. Jackson and others on an injunction bond. From a judgment for plaintiffs, defendants appeal. Affirmed.

Hewitt, Walker & Porter, for appellants. Arnold & Evans, for appellees.

STONE, C. J. Bills in equity have come to occupy a very large field in judicial administration, and injunctions, as a means of making their remedial powers effective, have a very wide and varied scope. Sometimes they are mere incidental aids,-temporary adjuncts to equitable relief; while in other cases their permanent restraining power is the object,-the end sought to be accomplished by them. Hence it is exceedingly difficult to declare the extent of liability incurred by unauthorized and unsuccessful resort to their restraining powers. Reason and authority concur in asserting that the makers of an injunction bond are liable for the damage done to another by the wrongful resort to this extraordinary process, as it is styled; but they are liable no further. They are in no sense liable for injury and expense of the suit, unless such injury and expense were caused by the injunction itself. The one must sustain the relation of cause to the other as its effect, to fix a liability therefor. Robertson v. Robertson, 58 Ala. 68; 2 High, Inj. § 1686: Randall v. Carpenter, 88 N. Y. 293; Hovey v. Pencil Co., 50 N. Y. 335; Holmes v. Weaver, 52 Ala. 516. In Bolling v. Tate, 65 Ala. 417-426, we said: "It would seem that all necessary and proper expenses incurred to procure the dissolution [of an injunction,] or to prevent its reinstatement, in the court below, are the natural and proximate result of the wrongful suing out of the injunction, and are recoverable as damages." Quoting from Chancellor Walworth, (Edwards v. Bodine, 11 Paige, 223,) we said: "The necessity of paying such counsel fees is an actual damage which the defendants have sustained by reason of the injunction.

It is not a mere matter of discretion, as the condition of the bond is imperative that the obligors in the bond shall pay to the parties enjoined such damages as they may sustain by reason of the injunction." We further said in the same case, quoting many authorities in support of it, that "the fees recoverable are not necessarily for the defense of the whole action. They are limited to that part of the defense, or the whole, as the case may be, that may be rendered necessary by the writ of seizure, or injunction complained of." In Andrews v. Wool Co., 50 N. Y. 282, the court said: "Expenses properly incurred on the part of the defendant for the purpose of dissolving an injunction were legally allowable as damages." Jackson and another, by conveyance in writing, sold to Millspaugh and others certain goods

and choses in action, at a stipulated price paid. The writing expressed what things were sold. Millspaugh and associates brought suit for damages, alleging that Jackson and his associate had failed and refused to deliver certain of the things purchased. Thereupon Jackson and his copartner filed a bill, charging that a mistake had been made in the draught of the writing, and that it mentioned and conveyed several things which were not in fact sold, and were not intended be included in the conveyance. It prayed for a reformation of the contract, and that the suit at law, to the extent it sought to recover the disputed items, be enjoined. A temporary injunction was obtained, and the statutory bond in such cases was required and given. Millspaugh and others, the parties enjoined, filed sworn answers denying the mistake charged, and thus denied the ground on which the equity of the bill and the injunction depended. They thereupon moved to dissolve the injunction on the sworn denials in the answers. This motion was not acted on until the final hearing, when the injunction was dissolved and the bill dismissed. Testimony had been taken, and the case was tried on its merits. The present suit was brought on the injunction bond to recover damages for the wrongful suing out of the injunction. The question raised is whether the bondsmen are liable for the expense of attorney's fees in preparing the case for a final hearing and decision, which dissolved the injunction and dismissed the bill, or whether their liability is limited to the expense of dissolving the temporary injunction, had the motion therefor been pressed. It was testified by a witness for Millspaugh and others, and not objected to nor denied, that the motion to dissolve the temporary injunction "was continued from time to time by consent at the instance of the solicitors of complainants, [Jackson and associate,] and it was finally agreed that it should be heard at the same time that the case should be heard finally." The controlling purpose of Jackson's bill was an injunction of the suit at law, to the extent it was charged there was a mistake in the written contract. Without the injunction, there must be a recovery at law for all that was claimed, for the writing on which it was founded precluded all defense at law, based on the alleged mistake. And the necessity for getting rid of the temporary injunction did not end the trouble. If dissolved on motion, and afterwards reinstated on proof, this would have left Millspaugh and his associates equally without right to recover, to the extent relief should be obtained under the bill. So, the expense the injunction imposed on them was not limited to getting relief from the temporary injunction. It extended further, and embraced all the outlay that would become necessary to prevent a reinstatement of the injunction.

We have not commented on the fact that

action on the motion to dissolve was delayed until the hearing on the merits, not by the individual act of the movers. It was done by consent. Possibly this should exert some influence in the decision of the question we are considering. We need not decide this question. We concur with the city court in holding that in this case all the expense incurred by Millspaugh in preparing the case for final hearing must be classed as damages resulting from the injunction, and is recoverable. Affirmed.

BONIFAY v. HASSELL.

(Supreme Court of Alabama. Nov. 13, 1893.) CONTRACT-INTERPRETATION-ACTION FOR BREACH -MEASURE OF DAMAGES-INSTRUCTIONS

1. Where a person contracts to raft timber "as fast as same is put to the mouth of creek, and run timber as fast as water will permit," he can be required to do no more than perform his contract within a reasonable time.

2. Where a person contracts to raft logs for the owner, and deliver them at a certain place, and the owner wrongfully prevents him from performing his contract, the measure of his damages is the difference between the price the owner agreed to pay him for, and the actual cost of, delivering them, or the profit he would have made if he had been permitted to perform, and not the full contract price.

3. Where, in an action by such contractor against the owner for damages for refusing to permit plaintiff to raft and deliver the logs, there was evidence that plaintiff was ready and able to perform, "but was prevented by the wrongful act of defendant, and that he was then performing his contract when prevented by defendant," the court properly refused to charge that, unless plaintiff has shown "that he has performed his duties as stipulated in the contract in a reasonably skillful and prompt manner," he is not entitled to recover.

4. Where, in such case, there was no evidence of what plaintiff earned after the breach of the contract by defendant, except that "after Christmas he got employment, and made a living out of it," there was no basis for an instruction that there should be deducted from what plaintiff was entitled to recover the amount he subsequently earned as shown by the evidence; and requests embracing such proposition were properly refused.

Appeal from circuit court, Covington county; John P. Hubbard, Judge.

Action by John F. Hassell against R. A. Bonifay to recover damages for breach of contract. From judgment entered on the verdict of the jury in favor of plaintiff, defendant appeals. Reversed.

The contract provided that plaintiff should raft timber as fast as it was delivered at the mouth of a certain creek, and run the same down to Ferry Pass, Fla., as fast as the river would permit; and that for this service defendant was to pay plaintiff 30 cents per stick for all the timber delivered at Ferry Pass, and plaintiff was to pay $3 per stick for all timber lost. The evidence tended to show that some time in December, after making the contract, plaintiff had a quantity of timber which was caught by defendant in a boom at the mouth of the

creek, but not rafted; that on Friday plaintiff left the mouth of the creek, and went to a certain village, to get rope for rafting, and did not return until Sunday afternoon; that while he was gone there came a swell or rise in the river, and the timber of defendant got afloat in the river; that no one was left by plaintiff to look after the timber; that defendant, discovering his timber floating, and liable to be lost, procured a force of hands on Sunday morning, and went to work securing it, and continued to work until late in the evening; that about noon plaintiff came and worked a short time, and quit before all the timber was secured; that defendant insisted on plaintiff continuing to work to secure the timber, and pick up that which was adrift, but the latter declined to work on Sunday; and that thereupon defendant said to him that he would have to take charge of his own timber. There was evidence that the actual cost of running the timber from the mouth of the creek to Ferry Pass was between 22 and 26 cents per stick; that the timber in question could have been run on that swell or rise of the river if plaintiff had rafted the timber; that other timber had been run to Ferry Pass on the same swell; that before another rise of the river came timber declined 12 cents per cubic foot, and there were three rafts delayed, containing between 100 and 110 pieces, and that the pieces averaged 40 cubic feet; that there were lost 30 pieces of timber; and that plaintiff procured other employment, "and made a living out of it," but it was not shown what was the amount of wages earned by him. The court, at the request of the plaintif, gave the following written charge: "The court charges the jury that if they are reasonably satisfied from all the evidence in this case that Hassell, the plaintiff, used such care and diligence in the rafting and running of the timber mentioned in the contract in this case as a reasonably prudent man would have done under the same circumstances, and that defendant broke the contract, then plaintiff is entitled to recover 30 cents per stick for all timber cut on defendant's mill and run to the mouth of said creek from the time the contract was broken up to the present time, and they should so find by their verdict." The defendant duly excepted to the giving of this charge, and also separately excepted to the court's refusal to give each of the following written charges: (1) "The court charges the jury that, unless the plaintiff has shown to the reasonable satisfaction of the jury that he has performed his duties as stipulated in the contract in a reasonably skillful and prompt manner, then he is not entitled to recover, and their verdict should be for the defendant." (2) "If the jury are reasonably satisfied from the evidence under the law as charged by the court, and if they are further satisfied that the service undertaken by

plaintiff to be performed under the contract was such that it required assistance to aid him in the performing of the same, then the amount of his damage cannot be more than the amount of the contract price less the amount of such reasonable and proper assistance as would be necessary to make him able to perform his contract, from which should be deducted the amount of all timber lost at $3.00 per stick, and the amount he afterwards realized by his subsequent employment, as shown by the evidence." (3) "The court further charges the jury that if plaintiff is entitled to recover in this case under the evidence and rules of law given them in charge by the court, there should be deducted from the amount received, in addition to the timber lost, if any was lost, and the amount received by plaintiff by other employment, if any is shown, the further sum of any difference in the price of timber, if shown by the proof, between the market price of the timber if it had been delivered as contracted, if it could have been delivered earlier by reasonable diligence, and the market price of the timber when it was actually delivered."

John Gamble and Henry Opp, for appellant.

HARALSON, J. The complaint in this case is in accordance with form 9, p. 791, of the Code, for the breach of a defendant coveuant or agreement. The demurrer to it was overruled, and the ruling, though assigned as error, is not insisted on in argument of counsel, and is therefore waived. The pleas upon which issue was joined, were the general issue, set-off, and recoupment.

1. The court, in its general charge, first excepted to by defendant, stated to the jury "that the contract should be so interpreted that the timber should be delivered in a reasonable time." The contract of the plaintiff was "to raft said timber as fast as same is put to the mouth of creek, and run timber as fast as water will permit." It took time, certainly, to collect a raft, after the timber was put in the creek, and time to run it to its destination; and the plaintiff could be required to do no more than perform his contract in a reasonable time. Under the contract and the evidence in the cause, this charge was free from error.

2. In the second charge given the measure of damages is incorrectly stated, and it was for this reason erroneous. The plaintiff, if entitled to recover, was entitled to no more than the difference between the price defendant agreed to pay for the delivery of the timber and the expense to plaintiff in delivering it; or, in other words, to the profit it was shown he would have realized, if he had not been discharged, but allowed to perform his contract.

3. The first charge asked by defendant was properly refused. There was evidence

tending to show that plaintiff was ready and able to perform his contract, "but was prevented by the wrongful act of defendant, and that he was then performing his contract, when prevented by defendant;" and the charge completely ignored this evidence. 4. There is no proof of what plaintiff earned by the labor he afterwards performed further than that "after Christmas he got employment, and made a living out of it." There was no basis, therefore, for the request that there should be deducted from what plaintiff was entitled to recover the amount he afterwards realized by his subsequent employment, as shown by the evidence. The jury could not have calculated what he earned, and the second and third charges asked by defendant and refused were, for this reason, abstract, and calculated to mislead, and may have been properly refused on that account. 3 Brick. Dig. p. 113, § 106. Besides, said charge No. 2 assumed, as a matter of fact, that there were timbers lost in the rafting, and was erroneous also for this reason. Reversed and remanded.

MAYFIELD v. SPIVA. (Supreme Court of Alabama. Nov. 15, 1893.) CHATTEL MORTGAGE-LIEN.

A person cannot acquire a lien on a mare, for the service of a stallion, which is superior to a prior duly-recorded mortgage on such animal for the purchase money, where the mortgagee in no way authorizes the owner to place the animal under such lien.

Appeal from circuit court, Lawrence county; H. C. Speake, Judge.

Action in attachment by J. W. Mayfield against one Lansdale to enforce a statutory lien on a mare, in which H. Spiva interposed a claim to the mare as mortgagee. From a judgment for claimant, plaintiff appeals. Affirmed.

On the trial it was shown that the said Lansdale was indebted to the plaintiff in the sum of $10 for the service of plaintiff's stallion to the mare of Lansdale, some time after March 8, 1891, under a contract with said Lansdale for the payment of $10 for the season, and that he never paid such sum. It was shown in behalf of claimant that the said Lansdale bought the mare in question from him on March 5, 1891, and executed a mortgage on her for the purchase money, which mortgage was duly recorded on March 8, 1891. It was not shown that said Spiva was a party to the contract with Mayfield for the service of his stallion, or that he knew of such contract.

C. M. Sherrod and D. C. Almon, for appellant. Kirk & Almon, for appellee.

STONE, C. J. This case must be dealt with as if Mayfield had personal knowledge of Spiva's mortgage on the animal in controversy. Such is the effect of our statutes

1. On an issue as to the existence of a general custom in L. as claimed by plaintiff, and as to its effect on a contract between plaintiff and defendant, an instruction was erroneous which ignored all inquiry as to the length of time the custom had prevailed, and as to defendant's knowledge of its existence, or opportunity of acquiring such knowledge.

2. The customer of a warehouseman is liable for his proportionate share in the expenses incurred by the warehouseman in prosecuting suits for the recovery of insurance money for goods destroyed in the warehouse, where the customer is chargeable with knowledge of a general custom of warehousemen to keep a customer's goods insured in open policies in favor of the warehousemen on goods held in trust, and to charge each customer for such insurance at a certain monthly rate on his goods covered by such policies.

3. The fees of an attorney, employed by the executor of a deceased partner in the warehouse firm to assist the attorney employed by the surviving partner to prosecute suits against insurance companies, were not a part of the expenses, for a pro rata share of which a customer was liable; nor was money paid by the surviving partner for office rent during the pendency of the suit a proper part of such expenses.

4. Money paid for special bailiffs to serve papers, for copies of testimony, and for clerk's and sheriff's fees were proper parts of such expenses.

Yours of the 19th inst. received and noted. I am perfectly willing and at your discretion to have J. Balmforth & Co. to buy for us on joint account and risk 1,000 to 2,000 bags peanuts upon the following terms: Commission for buying and selling, five per cent.; storage per bag per month, two cents; insurance per month, one-eighth of 1 per cent.; interest on money for purchase Balmforth of nuts, 8 per cent. per annum. & Co. to hold the nuts for us six (6) months if we desire, or to sell same when ordered by you. If they do not want to furnish all the money for purchase of nuts, I will send them check on New York for $500.00 as bonus, and in the event of a decline in nuts I will at any time make our bonus good when advised by you, and when nuts are sold I will be responsible for any loss, and will remit to cover same. Yours sincerely, Peter A. Buyck." In pursuance of this agreement, J. Balmforth & Co. purchased the peanuts, and stored them in their warehouse in Louisville, Ky. The warehouse of Balmforth & Co. was destroyed by fire in January, 1886, by which the goods of the defendants, and other goods stored in said warehouse, were consumed. The plaintiff testified in his own behalf, further, that in accordance with said agreement the said peanuts of the defendants were insured in several companies, "the policies being taken out in the name of J. Balmforth & Co., and covering the goods stored in their warehouses, their own, or held in trust or on commission." After the fire the insurance companies resisted the payments due on the policies, and hence it became necessary to institute legal proceedings for the collec

Assumpsit by John O. Schwing, as surviving partner of the firm of J. Balmforth & Co., against Peter A. Buyck and McD. Cain, Jr., as partners under the firm name of Buyck & Cain. Judgment for plaintiff. Defendants appeal. Reversed.

The complaint contained the common counts. On the trial of the cause the defendant pleaded the general issue, and by special plea denied the debt, and pleaded setoff, and also the statute of limitations of Kentucky. The plaintiff filed a replication alleging that while the plaintiff's firm, of which he was the surviving partner, had its domicile in Kentucky, the defendants lived in Alabama, and the cause was thereZore controlled by the statute of this state. Defendants demurred to this replication, which being overruled, issue was joined.

The evidence introduced by the plaintiff tended to show the following cause of action: On January 24, 1885, Peter A. Buyck wrote to McD. Cain, Jr., in Louisville, Ky., the following letter, which is the basis of the contract sued on in this case: "Wetumpka, Ala., Jany. 24th, 1885. McD. Cain, Jr., Louisville, Ky. - My dear Nephew:

itemized statement of the expenses incurred in prosecuting these several suits for the recovery of the insurance. It was further shown that there was recovered from the insurance companies, after a lengthy litigation of three years, practically the full amount of the insurance,-$90,000. The plaintiff's itemized statement of the expenses shows that in the collection of this amount of insurance he had incurred different expenses aggregating something over $25,000. Sixteen thousand dollars of this amount was alleged to have been paid to four separate firms of lawyers, and the remaining amount covered various items of expenses as shown by said statement. It was shown by other testimony introduced that Roberts & Goodloe, one of the firms of lawyers to whom the plaintiff alleges in his statement of expenses to have paid $4,000, were employed by the executors of J. Balmforth to look after the interest of the deceased's estate. It was also further shown that one of the items of expenses in the statement rendered by the plaintiff was for the rent of the office for him during the pendency of the litigation, and other items were for continuous payment to witnesses.

and of special bailiffs for the service of papers, and others were for various charges in said statement, which it is unnecessary to particularize. It was not shown that plaintiff, as surviving partner of J. Balmforth & Co., had any communication with the defendants relating to the institution of the suits against the insurance companies, or in reference to the expenses incident to such litigation, or that he had at any time consulted with them in reference thereto.

The question asked the plaintiff as a witness, as to the general custom among warehousemen in the city of Louisville, at the time of the contract, in reference to the insurance of goods in the warehouses, the answer and rulings thereupon, and the charge given by the court in reference thereto, are sufficiently stated in the opinion.

The defendants requested in writing the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "If the jury believe from the evidence the $1,000.00 which had been deposited by defendants with J. Balmforth & Co., and the value of the peanuts on the 8th day of January, 1886, was equal to the amount of the indebtedness of defendants to plaintiffs up to said date, then they must find for the defendants." (2) "Under the contract given in evidence in this case, Balmforth & Co. agreed to insure the peabuts, and defendants are not liable to refund or pay the plaintiff any portion of the costs and attorney's fees incurred in the collection of such policies." (3) "Under the contract given in evidence in this case Balmforth & Co. became the insurers of the peanuts in question, and are liable to defendants for the value of such peanuts at the time of the destruction of the same by fire; and if the value of such peanuts at the time of the fire, together with the $1,000.00 which plaintiff admits was paid by Buyck & Cain before the fire, equals or excels the amount due on that day by Buyck and Cain to said Balmforth & Co., then the jury cannot find any verdict for plaintiff." (4) "Under the evidence in this case, defendants are not liable to account to plaintiff for any part of the money paid out by him in the costs and expenses incurred in collecting the insurance money." (5) "If the jury believe the evidence in this case, nothing can be deducted from the amount of insurance money which defendants are entitled to have credited on their accounts because of the bill of expenses, netting $9,487.59." (6) "If the jury believe from the evidence that the executors of the estate of Balmforth employed the law firm of Roberts & Goodloe to assist the lawyers employed by the plaintiff to prosecute the suits against the insurance companies, then defendants cannot be charged with any portion of the fees paid such lawyers." (7) "Under the evidence in this case, defendants cannot be charged with any portion of the money paid out by plaintiff to witnesses, v.14so.no.2-4

nor for any portion of the same alleged to have been paid to experts." (8) "Under the evidence in this case, defendants cannot be charged with any portion of the money claimed to have been paid out by plaintiff for office rent." (9) "Under the evidence in this case, defendants cannot be charged with any portion of the money claimed to have been paid out by plaintiff for special bailiffs." (10) "Under the evidence in this case, defendants cannot be charged with any portion of amount claimed to have been paid out by plaintiff for copies of testimony." (11) "Under the evidence in this case, defendants cannot be charged with any portion of the money claimed to have been paid out by plaintiff in payment of clerk's and sheriff's bills." (12) "Under the evidence in this case, defendants cannot be charged with any portion of the bill of expenses, netting $9,487.59, introduced in evidence." (15) "It was the duty of the plaintiff to collect the fees of his witnesses from the insurance companies which he had sued, unless they were insolvent; and, if he failed to do so because of his failure to have them taxed, then he cannot charge the defendants with any portion of the amount paid."

Tompkins & Troy and J. M. Falkner, for appellants. Brickell, Semple & Gunter, for appellee.

STONE, C. J. Schwing, as a witness, was asked by his own counsel: "What was the general custom among warehousemen in the city of Louisville, Ky., at the time the contract was made with the defendants, as to the insuring goods stored in such warehouses?" He answered that "it was the general custom of warehousemen in the city of Louisville, Ky., at that time, to keep the property of their customers insured in open policies taken out in the name of the ware housemen, which covered the property they owned or held in trust, and to charge the customer for such insurance at the rate of one-eighth of one per cent. per month on the value of his property covered by the policies." There was an objection to the question, and also to the answer, each of which was overruled, and the defendants excepted! separately to each ruling. This was the entire testimony of such custom. The court, at the instance of plaintiff, Schwing, charged the jury "that, if there was any general custom in reference to the mode of conducting the business of insurance by commission merchants of the goods of customers in Louisville at the time of the contract in this case, the terms of the contract are to be interpreted in the light of such custom, and the parties are presumed to contract in reference to such known usage and custom, unless the terms of the contract are inconsistent therewith." There was an exception to this charge. In Barlow v. Lambert, 28 Ala. 704, we defined the rule in reference to custom as an element of a contract, and declared the