Muscoda Bridge Co. v. Worden Allen Co. , 207 Wis. 22 ( 1931 )

While I concur in nearly all that is said in the opinion of the court, I must dissent (1) from the inclusion of $210 in the allowance for rental of machinery and (2) from reversal of the case for reassessment of attorneys' fees.

(1) Damages for tying up the machinery during the period the injunction was in force were allowed on the basis of the rental value of the machinery and treated in the opinion on the hypothesis that all of the machinery was owned by the defendants. It is undisputed that an air compressor loaned to the defendants for use on the job was included with that owned by the defendants, and that $210 was allowed as the rental value of it, and that its use was furnished to the defendants by the Allis-Chalmers Company without charge therefor. I think this allowance was improper. For such machinery as defendants did not own, the proper allowance was the rental paid by the defendants, which in case of the air compressor was nothing. As no rental was paid there can be no recovery of rentals. The cases directly bearing upon the point involved the allowance of attorney fees. Of these a multitude are cited in a note in 16 L. R. A. N. S. 76, under a statement to the effect that to recover attorney fees as an element of damages it is not necessary that they be actually paid but it is sufficient that the legal obligation to pay them has been incurred. In 32 Corp. Jur. pp. 477, 478, it is stated in reference to the precise point:

"It is of course essential that the person claiming the allowance should be actually liable for the fees, and it is erroneous to make an allowance in absence of any evidence that the person claiming the allowance had become liable to pay for services of counsel in and about the dissolution of the injunction."

Where the attorney renders the service gratuitously there can be no recovery. 14 Ruling Case Law, p. 489, § 194; 2 Sutherland, Damages, p. 1727, § 525. Where there is a contract with the attorney for stipulated fee, the recovery cannot exceed the stipulated amount — the contract with the attorney limits the recovery, although the services were worth more; the amount stipulated is the amount of damages sustained. 2 Sutherland, Damages, p. 1725. No recovery is allowed where counsel's services are rendered as part of his regular duty for which he is paid a salary. 14 Ruling Case Law, supra. In no event can one recover more than he has paid or is bound to pay. 32 Corp. Jur. p. 478, § 825. The expense incurred is what is recoverable. 2 Sutherland, Damages, p. 1727.

The same rule applies in reason to the use of machinery furnished as to services of attorneys. For machinery furnished the amount recoverable is the rental paid. If the defendants had been renting the machinery for one-half of its rental value, it would not be contended that they could recover as damages the full rental value. No more can they recover the full rental value or anything at all when the machinery is furnished rent free. Recovery for use of machinery furnished gratis can no more be recovered than can attorney fees be recovered when the services are rendered gratuitously.

To the suggestions that no distinction can be made between allowance of rental value for machinery owned and machinery not owned but loaned free of charge, it seems sufficient to say that in every case the damage properly recoverable is the damage that actually results, and that damage is what will be allowed if it is capable of proof. In case of machinery owned, what the exact damage is cannot be proved or even approximately estimated. Manifestly the owner sustains some damage. There being no means of proving the actual amount of that damage, the rule applied by the court, for want of a better or more accurate measure of damage, allows the rental value. But in case of rented machinery the exact damage may be proved. The rental paid or payable furnishes an exact measure of the damage. And in case of machinery loaned without charge, it is as clear that there is no damage at all as that the exact damage in case of rented machinery is the rental paid. In neither case should rental value be allowed.

(2) As to the allowance of attorneys' fees made by the trial court, it seems to me that they are sufficient under the rule laid down in the opinion of the court. By that opinion the allowance for services prior to the hearing to assess damages is limited to those performed on the motion to dissolve the preliminary injunction. These services, except as below noted, consisted in briefing. No allowance can be made for services performed in preparation for trial of the case, and all briefing done was necessary for the latter. The results of such briefing as was done in immediate preparation for hearing of the motion to dissolve, if any there was, applied and was available as well in preparation for trial. When the work done in preparation for presenting the motion to dissolve cannot be separated from that done in preparation for trial of the case, no allowance can be made. 32 Corp. Jur. p. 477, § 823; Church v. Baker,18 Colo. App. 369, 71 P. 888; August v. Gonsalves,83 Cal. App. 245, 256 P. 584; Jacobson v. LaurelCanyon M. Co. 27 Ariz. 546, 234 P. 823; Lambert v. Alcorn,144 Ill. 313, 33 N.E. 53, 21 L. R. A. 611, 616; H. A. HillmerCo. v. Behr, 196 Ill. App. 363; Mitchell v. Hawley,79 Cal. 301, 21 P. 833; Housley v. Tobin,41 Wyo. 419, 286 P. 383; Joyce, Injunctions, § 203. There was no separation by counsel and no effort to separate the charges for briefing in the instant case. One of the counsel stated that he could not separate them. As no hearing was had of the motion to dissolve and no argument upon it made, the allowance should be limited to preparation of the motion papers and a few affidavits, for which, upon the basis laid down in the opinion of the court, the $281.25 assessed by the circuit court and included in the order appealed from is in my judgment ample.

I am of opinion, therefore, that upon respondent's motion to review, the judgment should be modified by deducting $210 therefrom, and as modified affirmed.