Jeremiah Center v. Hoag , 52 Vt. 401 ( 1880 )

The opinion of the court was delivered by

Ross, J.

The questions now before this court in this case arise on the assessment of the damages occasioned to the defendant by the injunction. The damages which a defendant is entitled to recover in such cases, are such as necessarily result to him from the injunction. They are not on the one hand necessarily limited to the benefit which the orator has derived from the injunction, nor, on the other hand, extended to all which the defendant has iraprovidently or imprudently expended because of the injunction. The defendant, when enjoined from exercising what eventually is established to be his right, must conduct himself with prudence, and in such a manner as to receive as little damage as the circumstances will admit of, in the exercise of ordinary care and prudence. Sturgis v. Knapp, 33 Vt. 486; Edwards v. Edwards, 31 Ill. 474 ; Mysenburg v. Schleiper, 48 Mo. 462. This is the rule where the injunction is applied for, obtained, and continued in good faith, in the assertion of an honestly claimed right. It applies to cost as well as other damages. Doubtless the court might be warranted in awarding greater damages, and sufficient to make the defendant whole, if the injunction was obtained and used mala fides, and for the purposes of oppression. Applying these principles to the facts reported, no error is apparent in the decree of the Court of Chancery. The $10 which the defendant had expended in preparing to move the house, were rendered unavailable, and lost to him by reason of the injunction. It is not found that the injunction rendered it necessary for the defendant to build the new house, and for that reason, he found himself so circumstanced when the injunction was dissolved that the old house was worth less to him than it was when the injunction was granted. It cannot be presumed that the injunction rendered the building of the new house a necessity, or such an expenditure as common prudence would have dictated.

The expenditure for fitting up the shed to live in, is stated to have been necessary only fob building the new house, and falls with that item. While the rental value of the house, pending the injunction, the removal of which was enjoined, may not have been all the damages which necessarily resulted to the defendant from the injunction, it is an element of such damages, and all which the facts reported disclose.

The defendant’s costs in the original suit above the taxable costs were not the necessary result of the injunction. There is nothing disclosed in the master’s report which shows they would not have all accrued in establishing the defendant’s right to the house against the asserted right of the orator, if the injunction had never been granted. In this respect they are identical in principle with the costs in the main controversy disallowed in Sturgis v. Knapp, supra. The costs on the hearing before the master were the direct result of the injunction. No such costs would have been occasioned the defendant in establishing his right to the house, if it had not been for the injunction.

Decree affirmed, and cause remanded.