This case was here, 135 N.C. 73, when a demurrer for misjoinder was sustained because the surety on the attachment bond had been joined as defendant. It was again here, 138 N.C. 174, when a demurrer to the complaint was overruled. The defendant had instituted an action against the Coke and Coal Company, a corporation of this State, for the recovery of $415 for car material, and joined the plaintiff herein, a railroad company incorporated in Pennsylvania, as co-defendant. The two companies had at that time the same officers and nearly the same stockholders, and the material had been used on the latter's cars. The complaint alleged that the material was bought for said railroad company, in fact, as an undisclosed principal. In said attachment ten of the defendant's cars were attached, and it not offering to give bond, the said ten cars were held two years, when the attachment was dissolved. This action was brought for damages, alleging malice and want of probable cause and that the attachment of the ten cars was excessive and an abuse of the process of the Court. Both plaintiff and defendant appealed. (55)
PLAINTIFF'S APPEAL.
The plaintiff sought to show that for the ten cars attached it should recover what the cars would have earned by way of rental or car toll. It was in evidence that the plaintiff's road is only seventeen miles long, but that it owns a large stock of cars and its principal business was the hiring or mileage of its freight and coal cars used on other roads, in short, as its counsel somewhat felicitously expressed it, its chief business was that of a "railroad livery stable" — hiring out conveyances. His Honor properly excluded the evidence of profits which the plaintiff might have made for hiring its cars, because that would be speculative damages. Sharpe v. R. R., 130 N.C. 614. The true measure of damages is the interest upon the value of the cars, increased or diminished, as the case might be, by the difference between the deterioration in the cars, if in daily use, and their deterioration while wrongfully tied up, provided, of course, the plaintiff could not have avoided all injury from the attachment by simply giving bond — as it is shown that it was amply able to do — and retaining possession of its cars.
No error.
DEFENDANT'S APPEAL.