LEYX, J.
(after stating the facts as above).
[1]
Appellants offered evidence of other similar transactions than those sued on, and the court sustained objections made to the evidence. This ruling of the court is made the basis of assignments of error Nos. 1 to 5, inclusive. The court did not, it is thought, err in the ruling. The rulé of evidence respecting system or habit sought - to be invoked is not legally relevant to any issue here. Appellants pleaded specific charges of fraud concerning report of financial worth of purchasers of vehicles which appellee as agent was selling for appellants. Appellee admitted that the reports as returned of the specific'financial worth of the purchasers of the vehicles wore returned by him. He claimed that the data given in the reports sued on were obtained in each instance strictly in accordance with the mode and way directed of him by the appellants, and that the information so given - was true in fact. There was not involved any question of innocence, omission, or mistake in making the reports sued on as they were made, so as to make intent or knowledge issuable. Under the real issues of fact the appellee either deliberately returned particular false reports concerning the specific financial worth of the purchasers, or he truly reported the specific information given to him in each instance by the purchasers themselves, as being the way directed by his employers in which it should be done.
Assignments of error Nos. 6 to 34, inclusive, are based upon the action of the court in allowing appellee to 'testify that the property statement given in each report sued on was in each instance the very statement received by him from the purchasers themselves as to the property owned by'them. The appellee pleaded and offered testimony tending to show that he was specially directed'by appellants, as the mode of obtaining property statements
for report to appellants, to ask each purehas•er of his property worth and make report of the same as the purchaser gave it. It was permissible for appellee to prove that in making the reports'he pursued the course directed by his employers, and acted in obedience to their instructions, as bearing upon the issues both of fraud and proper performance of his duties. And further the evidence was, as stated by the trial court, in rebuttal of evidence offered 'by appellants.
[2]
Assignments of error Nos. 38 to 73, inclusive, are grouped, and relate to the refusal to submit certain questions to the jury. The proposition for error is that the court failed to submit all issues made by the pleadings and evidence. The appellants seek by their special questions to have a special finding by the jury of the truth of the statements in, and the loss sustained, if any, by appellants on, each of the reports made the basis of suit. The question submitted by the court required the jury to find:
(1) “Whether or not the defendant, Golding, by false representations induced the plaintiff Cooper Manufacturing Company to sell the vehicles set out in plaintiff’s pleadings;” and (2) “whether or not the Cooper Manufacturing Company suffered any loss or damage on account of misrepresentations of Golding, if any, and the amount of same, if any.”
The court’s questions sufficiently embraced and required finding by the jury 'On, it is concluded, all the matters asked by appellants. And it is thought that the petition, as was evidently'so construed by the trial court, alleges that appellants sustained damages only by reason of specific charges of fraudulent statements on the part of the agent, and not 'through any merely negligent disobedience of instructions. Therefore the court’s charge comprehended all the issues.
It is not believed that the court would be warranted in 'holding that there is no evidence, as a matter of law, to support the verdict of the jury, and assignments of error 74 to 77, inclusive,'are overruled.
[3]
The 78th assignment of error complains of the recovery of the item of $100 by reason of the suing of 'the injunction. The jury found that the appellee suffered actual damages in the sum of $]00 by reason of the interlocutory injunction sued out in this case. It appears from the evidence that the recovery of this amount is based on loss of tune by tlie appellee in 'preparing his defense to the case. The action was for damages, and the injunction proceeding was merely incidental to the suit. The appellants, not having filed a cross-hill in the first suit, were not precluded from bringing the instant suit to recover damages. And the effect of the injunction, as merely auxiliary to the action for damages, was not to reopen the former suit, but merely to stay'the collection of the former judgment upon the alleged ground of insolvency of the appellee and his inability to pay the instant demand of appellants. Its object was to hold the funds of the former judgment in order to pay off the instant judgment if obtained. It is not necessary to decide the validity of this proceeding. It is, however, determined, as involved in the assignment, that the appellee was not entitled to recover anything on the injunction bond for defending the suit for damages. The statutory penalty covers all the damages allowable in this present proceeding.
The judgment will be reformed so as to deny recovery for the $100, and, as so reformed, will be affirmed. The cost of appeal will be taxed against appellee.
(S^jEor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes