Where it has been declared by the highest court of a state that
liability for counsel fees is a part of the obligation assumed by
the obligor in an attachment bond, such liability should be
enforced in every court in which an action on such bond is brought.
Where a liability can be enforced in the state court in which an
action is originally brought, that liability cannot be taken away
by removing the case to a federal court.
Where, as the result of an attachment against a lumber company,
there was an interruption of business for a certain time, and the
plaintiff in the action thereafter refused to deliver materials to
the lumber company, the sureties on the attachment bond are liable
for tile damages directly attributable to attachment, but not for
any of the damages caused by the plaintiff's failure to deliver
materials or for the reflection on the credit of the lumber company
by the bringing of the action in which the attached bond was
given.
A postponement or continuance is largely within the discretion
of the court, and unless such discretion is shown to have been
abused, there is no ground for reversal in a refusal to
postpone.
On October 1, 1897, the Atlantic Lumber Company commenced two
actions at law in the Circuit Court of Duval County, Florida,
against The L. Bucki & Son Lumber Company. In each of these
actions, a writ of attachment was issued, the Fidelity &
Deposit Company of Maryland being the surety on the attachment
bonds. Both of the attachments were dissolved. Soon after such
dissolution, the Bucki Company brought the present action against
the Fidelity Company upon the attachment bonds. The action was
commenced in the Circuit Court of Duval County, Florida, but
subsequently removed to the United States Circuit Court for the
Southern District of Florida. On a trial in that court, the Bucki
Company obtained a judgment which by Court of Appeals of the Fifth
Circuit was modified, and, as modified, affirmed. 109
Page 189 U. S. 136
F. 393. Subsequently thereto, each of the parties obtained a
writ of certiorari from this Court. 184 U.S. 698.
MR. JUSTICE BREWER delivered the opinion of the Court.
The principal question arises in the claim to recover counsel
fees incurred in securing the dissolution of the attachments. The
reasonable value of such fees was specially found by the jury to
have been $7,500. The circuit court refused to include this in its
judgment, but the court of appeals ruled otherwise, and ordered
judgment for that sum in addition to the amount of the general
verdict.
By the law of Florida, counsel fees incurred in securing the
dissolution of an attachment are recoverable in actions upon
attachment bonds. This was distinctly ruled in
Gonzales v. De
Funiak Havana Tobacco Company, 41 Fla. 471, in which the
second headnote recites that
"attorneys' fees and other expenses incurred in relation to the
attachment, or in procuring its dissolution are properly allowed as
elements of damage in actions upon attachment bonds."
And this is conclusive, for by McClellan's Dig. 345, sec. 21, it
is provided that
"the judges of the supreme court of this state shall, in
deciding cases, prepare and make a syllabus or statement of the
points and principles intended to be decided by the court, which
shall be published in the reports in lieu of that usually prepared
by the reporter."
Hart v. Stribling, 25 Fla. 435. It is true, as
contended by counsel, that the case in 41 Fla. was not decided
until after the bonds sued on in this case had been executed, but
the decision declares the law of the state, and that, in the
absence of statutes affecting the question,
Page 189 U. S. 137
must be taken to have been always the law. And in its opinion,
the court refers as authority, among other cases, to
Wittich v.
O'Neal, 22 Fla. 592, 599 (decided in 1886), in which it was
held that,
"in a suit on the bond given to obtain a temporary injunction,
counsel fees incurred by the defendant in the suit to dissolve such
injunction are damages that may be recovered, if covered by
language of the bond."
In the opinion in that case the court, while conceding that
other appellate courts had ruled differently (among them this Court
in
Oelrichs v.
Spain, 15 Wall. 211), declined to follow such
ruling, and said:
"It seems just and right that, where a party asks the
interposition of the power of the courts, in advance of a trial of
the merits of the cause, to deprive the defendant of some right or
privilege claimed by him, even though temporarily, that, if on
investigation it is found that the plaintiff had no just right
either in the law or the facts to justify him in asking and
obtaining from the court such a harsh and drastic exercise of its
authority, that he should indemnify the defendant in the language
of his bond for 'all damages he might sustain,' and that
reasonable counsel fees necessary to the recovering of
such injunction are properly a part of his damage."
The promise in the bonds sued on here is like that referred to
in the language just quoted, and was
"to pay all costs and damages which the said L. Bucki Lumber
Company may sustain in consequence of it, the said Atlantic
Company's improperly suing out said attachment."
Liability for these counsel fees, being, as declared by its
highest court, a part of the obligation assumed by the obligor in
an attachment bond given in the courts of Florida, should be
enforced in every court in which an action on such a bond is
brought. This action was commenced in a circuit court of the state,
and, if it had proceeded there to judgment, unquestionably a
liability for counsel fees would have been sustained, and it cannot
be that, by removing the case to the federal court such liability
has been taken, away. In
Tullock v. Mulvane, 184 U.
S. 497,
184 U. S. 505,
we held that, when a bond had been given in a case pending in the
federal court, and an action was thereafter brought in the state
court on such
Page 189 U. S. 138
bond, the rule of liability was that existing in the federal
court in which the bond was given, and said:
"It is clear that, if it be true that the bond given in a
federal court of equity on the granting of an injunction is not to
be construed with reference to the rules of law applicable to such
bonds in such court, then there can be no certain general rule by
which to determine the liability of the obligors upon the bond.
Their responsibility would be one thing in a court of the United
States and a different thing in the courts of the various states,
which would imply that the parties did not contract with reference
to any definite rule of liability."
See also Missouri, Kansas &c. Railway Company v.
Elliott, 184 U. S. 530.
In reference to the other alleged errors, the court of appeals,
without referring to them in particular, said:
"On the fullest consideration of the whole case, we conclude
that the record presents no error on the part of the trial judge
for which the judgment should be reversed."
We do not wonder at this observation of the court of appeals, as
we find from the record that the plaintiff filed in that court
thirty-seven assignments of error, covering seventeen printed
pages, and the defendant thirty-nine such assignments. It may be
true, as the Scriptures have it, that "in the multitude of
counselors there is safety," but it is also true that in a
multitude of assignments of error there is danger.
Perhaps it is well to first briefly outline the case and the
testimony. Prior to October, 1897, the Atlantic Company had, under
contract, been engaged in furnishing the Bucki Company with logs
with which to operate its sawmills at the rate of 2,000,000 feet
per month. It cancelled its contract on account of an alleged
breach by the Bucki Company, and brought the two actions at law,
one for $200,000 damages, resulting from such breach, and the other
for $9,980.80, claimed to be due for logs delivered, and in these
actions sued out the two attachments. They were levied upon the
mill plant, the logs, lumber, and all other personal property of
the Bucki Company. While the personal property was taken into
possession by the sheriff, the mill was a fixture, a part of the
realty, and the writs did
Page 189 U. S. 139
not operate to dispossess the Bucki Company therefrom, but
simply established a lien upon it. By forthcoming bonds the
personal property was, after a few days, released, and subsequently
the attachments were dissolved. On the trial, the plaintiff was
permitted to show the extent of its mill plant, the amount of
business it had been doing in prior years, the net profits of such
business during the nine or ten months preceding the levy of the
attachments, the orders and contracts which it had on hand for
timber and lumber, an alleged increase in the price of timber in
the year succeeding the levy. There was testimony bearing upon the
question of its ability to get logs elsewhere, the means of
transporting them to its plant, and the existence of negotiations
for a loan of money secured by the material it then had on hand.
There was evidence also tending to show the financial condition of
the company, its default in certain payments, and efforts it made
to utilize its property subsequently to the attachments. After all
the testimony had been presented, the defendant made a motion in
writing to exclude a number of items thereof from the consideration
of the jury, upon which motion the court ruled as follows:
"This cause coming on to be heard on a motion of the defendant's
attorney to exclude certain testimony from the jury, and it being
considered that, under the testimony introduced, any damages
arising from the consideration of injury to credit or loss of
profits would be too remote, uncertain and speculative, it is
therefore ordered that this motion be granted as to the testimony
relating to the cost of manufacturing lumber and the supply of
timber lands; all testimony to the damage to credit, loss of
profits, and all evidence relative to the market prices of lumber
subsequent to the attachment. That in regard to the profits
plaintiff's mill had been making prior to October 1, 1897, be
retained and considered only for the purpose of determining the
actual damages suffered during the time the operation of the mill
was suspended on account of the attachment, and the motion be
denied in all other respects."
And in making this ruling it said:
"This order is made at this time only for the purpose of
confining the argument to the jury upon these lines. I am fully
Page 189 U. S. 140
satisfied in my own mind that damages from the loss of profits
arising from the subsequent or future business which might possibly
have been carried on is, under the evidence, too remote and
speculative for the testimony to go to the jury. Some courts have
held that every fact should go to the jury to be considered, but
the United States courts have uniformly held that, where the
testimony is such that any reasonable man, or any reasonable court,
could view it in but one light, the court may exclude it from the
jury. In this matter, I have admitted the testimony, but I fail to
find that there is such evidence of damage from loss of future
profits as should go to the jury. If there was no combination of
circumstances other than the attachment; had a third party come in
and levied an attachment and stopped the business, and there had
been no suspension save by the attachment -- then there might have
been such testimony as would prove a loss of profits; but in this
case, the particular circumstances, the suspension of the contract
for the delivery of logs and the bringing of the two common law
suits, so changed the circumstances that there is no certainty that
there could have been any profit."
"Every author of authority referred to, even by the plaintiff's
attorney, says there must be some certainty."
"Now the certainty of profits here depends upon this: it is
claimed that, on account of these attachments, the plaintiff's
credit was injured; that, had it not been for the attachments,
money could have been borrowed, timber land or stumpage could have
been procured, logs could have been procured profitably; if logs
could have been procured profitably, lumber could have been
manufactured and marketed profitably. Now, between the borrowing of
the money and the marketing of the lumber there are so many
uncertainties that the court cannot say that there is sufficient to
justify the jury in finding, perhaps, large damages against the
defendant in this case on account of loss of credit and profit --
from the levying of the attachments."
The plaintiff excepted on the ground of an invasion of the
province of the jury, and because it was, as it alleged, misled by
the rulings of the court in admitting such testimony, and therefore
failed to introduce other testimony which it claimed
Page 189 U. S. 141
to possess and which upon another theory would have tended to
show the damages it had sustained. Because it was so misled, it
also filed a motion to discharge the jury and postpone the trial of
the case, which motion was denied and the case submitted to the
jury. Many instructions were asked by counsel on both sides looking
to the question of damages, and exceptions were taken to the
refusal of the court to give those instructions. In its general
charge, the court said:
"The only question is a clear-cut question. It is how much
damages did the Bucki Company suffer? This question becomes more
difficult by reason of facts and circumstances attending the writs
of attachment. At the time the writs of attachment were levied,
there were two common law suits commenced, both of which have been
terminated. That is one attending circumstance. The other is that
the Atlantic Lumber Company cancelled its contract or considered it
cancelled. That is, the Atlantic Company refused and ceased to
deliver any more logs to the Bucki Company. So that the three
combining circumstances, the levy of the writs of attachment, the
ceasing to furnish logs, and the common law suits, unite in being
the cause for subsequent suffering of damage by the Bucki
Company."
"
* * * *"
"But in this case, the attachment did not cause the stoppage of
the furnishing of logs, nor did the issuing of the attachment cause
the institution of the common law suits."
"
* * * *"
"I have therefore, as you have seen in the course of the case,
granted a motion to exclude from your consideration all testimony
as to damages for loss of credit and all testimony as to all
profits the Bucki Company might have made in the future in
procuring capital, in procuring lands, in procuring logging plants,
and procuring logs at a profit, and so manufacturing lumber
therefrom at a profit."
"
* * * *"
"I therefore instruct you, gentlemen, that the damage must be
confined to the damages suffered by the detention of the mill for
the time being; those damages that have arisen by the
Page 189 U. S. 142
detention of and taking the mill properties from the possession
of the plaintiff."
Without further quotations, enough appears to show the general
scope of the rulings of the court in reference to the measure of
damages, and, even conceding that its action, as said by the court
of appeals, "is, in several particulars, subject to the criticism
which is leveled at it by some of the other numerous assignments of
error," we are of opinion that there was no such substantial error
as justifies a reversal of the judgment. That there may be such
certainty of profits as in some actions for breach of contract will
justify their recovery is undoubtedly true.
Howard v. Stillwell
& Bierce Manufacturing Company, 139 U.
S. 199,
139 U. S. 206;
Cincinnati Gas Co. v. Western Siemens Company,
152 U. S. 200;
Anvil Mining Company v. Humble, 153 U.
S. 540,
153 U. S. 549.
If this action had been one by the Bucki Company against the
Atlantic Company to recover damages for a breach of its contract to
deliver logs, the inquiry as to profits might have been broader
than was permitted in the present case. But, as pointed out in the
charge of the court, the failure of the Atlantic Company to further
deliver logs was not caused by, or the direct result of, the
attachments. By signing these bonds, the surety did not agree to
become responsible for all the damages which the Bucki Company
might sustain by every act of the Atlantic Company, but simply that
it would be responsible for the damages resulting directly from the
attachments. The direct result of the attachments was the placing
of a lien upon the realty, and for a certain time interrupting the
Bucki Company's business by taking possession of its personal
property, and the damages which resulted directly from these alone
were the damages which the surety company agreed to become
responsible for. The court very properly admitted in evidence, and
permitted the jury to consider, the net profits which had been
earned from the carrying on of the business in the few months
prior, not as in and of itself constituting the measure of damages,
but as tending to show what damages the Bucki Company sustained by
the brief interruption of its business. When the lien on the realty
was ended and the personal property restored, the attachments
Page 189 U. S. 143
had spent their force and the surety company became responsible
for all the damages attributable directly to the attachments. The
failure to further deliver logs, and the reflection on the credit
of the Bucki Company by the bringing of the actions may also have
damaged or added to the damages of the Bucki Company, but such
result was not due to the attachments. The Atlantic Company, and
not the surety company, was the party responsible therefor.
Neither can we see that there was error in refusing to discharge
the jury and postpone the trial. A postponement or continuance is
largely within the discretion of the trial court, and unless that
discretion is shown to have been abused, there is no sufficient
ground for reversal. It does not appear that any witness had been
discharged or any books or documents in possession of the counsel
sent away during the trial, and there was no offer then and there
to present further testimony. It does not seem to us that the Bucki
Company was prejudiced by the ruling of the court in this
respect.
The liability for counsel fees and the true measure of damages
are the main questions in the case. This latter question was
presented in different forms and with various limitations, but we
think the rulings of the trial court thereon were substantially
correct. We see no error in the record which justifies a reversal
of the judgment, and it is
Affirmed.