
    PRAGER’S PARIS FASHION et al. v. SEIDENBACH et al.
    No. 15669
    Opinion Filed Sept. 22, 1925.
    (Syllabus.)
    1. Damages — Speculative Profits — Stopping Bankrupt Sale One Hour.
    As a general rule, anticipated profits of a commercial undertaking are too remote, specolative, and dependent upon uncertainty*, and changing circumstances to warrant a jtrlgment fo,v loss, and where it -is shown that a bankrupt stock of goods was bought and that the same was to be offered for sale, at retail and the sb< reroom was closed and the sale was stoijped for a period of one hour, it was error to admit evidence, tending to show the amount of anticipated profits during said period, as such profits were speculative and conjectural.
    2. Injunction — Damages on Bond — Expenses of Litigation — Loss of Time by Manager of Corporation Defendant.
    Where a corporation seeks to recover damages upon a bond given to 'indemnify the corporation by reason of an injunction, and where the managing officer of such corporation! expended time in attending to matters (relative to such injunction, such corporation cannot recover damages for loss of such time, for the reason -that the manager '«as acting for and in behalf of the corporation, and a corporation, like an individual. cannot reco-ver for time expended in matters pertaining to its own litigation.
    3. Same — Attorneys’ Fees as Damages.
    Where injunctive relief pending the determination of the action is the principal purpose of -the action and the ultimate relief sought is to make the temporary injunction Permanent, then, upon its dissolution, attorneys’ fees may be recovered in an action on the injunction b; nd as for the defense of the entire action.
    4. Same — Burden of Proof — Erroneous Instruction.
    Where the provisions of a bond are conditioned to pay to the party injured all damages which they may sustain by reason of the injunction, including treasonable attorneys’ fees, and the court instructs the ju,vy that they -Should find for the plaintiff in the sum paid as attorneys’ fees in said action “unless they should further believe from a fair preponderance of the evidence that the attorneys’ fees \ye"-'e unreasonably largo,” such instruction is erroneous, as the burden of proof was upon the plaintiff to recover such fees and to show by a fair preponderance of the evidence that they were reasonable and that they were either paid) or legally assumed by -tbe party claiming to have been damaged by reason of such fees.
    Error from District Court, Tulsa County; Z. I. J. Hplt, Judge.
    Action by J. L. Seidenbaeh and another against Prager’s Pa(ris Fashion and another. Judgment for plaintiffs, and defendants bring error.
    Reversed and remanded.
    Hulette F. Aby, William F. Tucker, and O. H. Rosenstein, for plaintiffs in error.
    O'Meara & SilVerman, Samuel A. Boorstin, and J. D. Johnston, for defendants -in er(vor.
   LESTER, J.

This action was instituted in the -district court of Tulsa county, Okla., by tbe defendants in error, as- plaintiffs, against the plaintiffs in error, as defendants. For convenience, the parties will be referred to as they appeared: in the district court.

Plaintiffs in their petition sought to recover on a certain bond executed by the defendant Prager’s Paris Fashion, a corporation, as Principal, and the defendant C. A. Mayo, as surety, -in an -action theretofore instituted in -the district court of Tulsa county, Okla., by said Prager’s Paris' Fashion, a corporation, against the plaintiffs in this action.

Inasmuch as said bond is the foundation of this action, d-t is deemed proper to set forih that portion of said -bond which ,relates to the payment of damages and the recovery of attorney’s fees, if it sho-uld thereafter be determined that said injunction was wrongfully issued:

“Now, therefore, if the said! plaintiff shall pay to the party injured all damages which they may sustain -by reason of said injunction, including reasonable attorney’s fees, if it shall be finally determined that said injunction ought not to have been granted, tlien this obligation shall become void. Otherwise to remain in full fo,rca and effect.”

Said bond was executed by the defendants in favoir of thie .plaintiffs to indemnify and hold the plaintiffs harmless from any loss or damage which they might sustain in the event it was finally determined that the injunction should not have been granted.

Plaintiffs alleged that they were the owners of a large store in tbe city of Tulsa, Okla., dealing in ladies’ ready-to-wear merchandise, and that they had advertised a sale to take place in a certain store-room in the city of Tulsa, beginning at 9 o’clock a. m. on March 23, 1922, and had made preparations to conduct s-aid sale on a large scale. That on the 22nd day of March, the defendant Prager’s Paris Fashion caused a suit in • equity to be instituted in the district court of Tulsa county, Okla., and procured a ¡restraining order preventing the plaintiffs from opening their sale at 9 o’clock on the morning of March 23rd, and delaying them in the opening of said sale until 10 o’clock on said day, they having in the meantime secured a modification of said restraining order in certain .particulars.

Plaintiffs alleged that the conditions and provisions of' said bond wer-e broken in that it was determined and adjudged by the district court of Tulsa eo-unty, Okla., that the .restraining order served on the plaintiff on the 22nd day of March, 1922, and the amendatory restraining order thereafter issued in said cause were i-mproividently -granted, and they were discharged, and that a final judgment was rendered in said action on the first day of May, 1922, in favor of the plaintiffs and against the defendant Prager’s Paris Fashion.

Plaintiffs claimed that they were damaged on account of the said restraining order and injunction in the sum o.f $7,429.07.

The defendants filed an answer in which they denied liability upon -the said bond.

The case K\|as tried to a jury and a verdict was rendered, in favor of the plaintiffs in the sum of $4,907. Motion for new trial was filed by the defendants, and the same was overruled, and the defendants prosecute this appeal to reverse the judgment of the district cou^t.

The defendants present assignments of error Nos. 1 and 2, and urge that the court erred in the admission of testimony] tending to show the loss of time on the part of the manager of the plaintiff’s corporation in looking after{ the litigation in which the bond sued upon was given, and in the admission of testimony as to the expenses of the plaintiffs. It appears that .1. C. Hopkins was the general manager of the plaintiffs' store and was charged with the duty of looking after every detail of said store and its general interest; that when the former suit was filed 'by the defendants in this action against the plaintiffs, said J- C. Hopkins devoted a portion of his time in having the original restraining order modified and in other matters growing out of the restraining order and injunction, and it i"'ias claimed by the plaintiffs that the value of these services amounted to $300, which .plaintiffs claimed as an item of .recovery as damages on the bond executed by the defendants. It is contended by the defendants that this item cannot be recovered as damages under the injunction bond, because the rule of law Proyddes that parties to a lawsuit cannot recover a.s damages for loss of time in looking after their interest in pending litigation, and that Mr. Hopkins, being general manager of the plaintiffs’ corporation, was in effect the plaintiff cor-poiration itself, since he was the officer and agent through whom the corporation must act; and hence the recovery for his time and expenses was in effect paying the .plaintiff for 'the time spent by it in looking after its own litigation.

In Bartram v. Ohio & B. S. R. Co. (Ky.) 132 S. W. 188, the court, in its opinion, in discussing the question of whether or not the value of ti-mei lost by a defendant in defending an injunction will be computed in estimating his damages, said:

‘'The genera 1 rule is that time expended in prosecuting o(r defending an action (except in defending actions maliciously instituted) is not the subject of a recovery. The public policy is not to place such a burden as a hazard upon an unsuccessful attempt +o establish a claim by ,» suit m court. It i« therefore not allowed. We perceive no good reason for making an exception to the rule in litigation In which there may be issued an injunction or attachment, sued out in good faith. The taxable . costs incurred on the injunction are always '•eeoveirabi.e as da mages resulting from i't mjhen it is dissolved. So much for the expenses incurred by the defendant upon the injunction proceedings.”

We do not think that the plaintiffs can recover the amount claimed on account of the alleged loss of time on the part of Mr. Hopkins in looking after the litigation for the benefit of the corporation, for the reason that he w,a.s the officey and agent through whom the corporation was acting in that respect, and we therefore hold that it was error for the court to admit evidence pertaining to such loss of time over the objections and exceptions of the defendants.

Under the same assignment of error, it is urged that evidence was erroneously admitted of .a.n item of $400 alleged to ha¡ve been spent byi J. L. Seidenbach in making two trips between New York and Tulsa, for the purpose of contesting the injunction. It appears from the evidence that these trips were made absolutely necessary, and solely o.n account of the injunction proceedings, and as the defendants have not cited a single authority in the support of their contention, we hold that there was .no error committed by the court in admitting evidence relating thereto.

Tlie defendants also urge that the trial court erred in (he admission of testimony tending to show a loss or profits by plaintiffs. As sholnm by the record, the Plaintiffs had purchased a stock of goods at a bankrupt sale; they took possession of the said merchandise; sale prices were marked on the several agüeles of the merchandise and they had advertised the sale of the same to begin at !) o’clock on the 23rdi day of March, 1922, and on account of the restraining order the. sale ,was 'delayed approxhimlately'. one hour.

Mr. Hopkins (C. 65-96) testified at length in the instant case, and we quote the following question .and answer:

“Q. How was the crowd at the time you opened the store compared with what it was at 9 o'clock that morning? A. Well, the crowd was larger than it was, of course, quite a. number of people. We had an entrance at tha.t time in the lobby of the Mayo Building; also People in’ there; I don’t know how much bigger the crowd was than it was at 9.”

It appears that this particular stock of goods was located in the building that had been formerly; occupied and controlled by the defendant, and that the plaintiffs, having bought tbe said stock at a bankrupt sale, were attempting to dispose of the said stock beginning at 9 o’clock on the said 23rd day of March. It is contended 'by the defendants that the amount of profits that might have aceyned to the plaintiffs by reason of the •store having been closed <-n the morning of the 23rd of March, was purely1 speculative; that it had not for some time been a going business, and for that yeason the witness Hopkins was not qualified to state with any accuracy what the profits might have been during, the one hour that the said store was closed, and that his testimony was purely speculative and conjectural.

In the case of Callahan & Co. v. Chickasha Cotton Oil Co., 17 Okla. 544, 87 Pac. 331, the second paragraph of the syllabus reads as follows:

“Where, in an action to recove:- damages for the idleness of a mill, which idleness was caused toy the failure of the mill machinery manufacturers to supply Part of the mill, within the time contracted for, evidence of rental value of the mill, which rental value is shown to he an estimate of the witnesses of the profits the mill might have made with a satisfactory market for the purchase of supplies and sale of products, is incompetent < f consideration, because the same is based upon speculation too remote, and not capable of sufficient and certain ascertainment.

In the case of Boko-she Smokeless Coal Co. v. Bray et al., 55 Okla. 446, 155 Pac. 226, the third paragraph of the syllabus1 reads as follows:

“As a general rule, anticipated profits cf a commercial or other like business are too remote, speculative, and dependent upon uncertainties and changing circumstances to warrant a judgment for thew loss. The exception to this rule is that the loss of P".'< fits from the destruction or interruption of an established business may he recovered where it is made reasonably certain by competent -proof "bat the amount of the loss actually is; and such damages must he established, not by guess work, conjectures, uncertain estimates, or mere, conclusions, but by tangible facts from which actual damages may be logically amdl legally shown or inferred.-’

The purchase of this stock of goods being a new investment upon tbe part of the Plaintiffs, the amount cf profits that the plaintiffs might have received during the one hour that the store was closed, in our judgment, was merely conjectural, and the court committed error in admitting the testimony peytaining to the same.

It is again urged -by the defendants that the court erred in the admission of testimony as to attorneys’ fees. Wei have carefully examined the record pertaining to the introduction of the evidence relenting to other attorneys’ fees in this case, and we are of the opinion that the court committed no eyror1 in relation to the same. It clearly appears that the entire action of the defendant in its prior suit against the plaintiff sought injunctive relief only, and that the services rendered by the attorney for the plaintiff in that action were rendered in rclati< n only to the injunction proceedings upon the part of the parties to that action in the district eouyt. In the ease of McGraw et al. v. Little. 198 Ala. 553, syllabus paragraph No. 1, it is said:

“ Wheye injunctive relief pending the determination of the action is the Principal purpose of the bill and the ultimate relief sought is to make the temporary injunction permanent, then upon its dissolution attorney’s fees may be recovered in -an action on the injunction bond as for the defense of the entire action.”

It appears that the only relief sought in this case was injunctive relief in the suit brought; by the plaintiff in that action. The court committed no error in the admission of the evidence pertaining to the attorney’s fees.

It is also- insisted that the court erred in refusing to give defendants’ requested instructions Nos. 1, 2, and- 5. We find no error in the court refusing to give these instructions. It is also insisted that the court’s instructions Nos. 2 and 3 were inconsistent each with the other; but upon examination of those instructions we cannot agree with ■the contention < f the defendants. The defendants also contend that instructions Nos. 4 and 6, given by the court to tbe jury, are erroneous. The court, in instruction No. 4 !C.-M. 9, 180), instructed the jury as follows ; -

“Ton are further instructed that if you believe from the evidence that the piauitiffs paid to Carroll, O’Meajr-a & Silverman the sum of *2,000, to -Samuel A. Bco-rstin and his associates $2.000 and to Seigel & Korn the sum ot- $2,000 for leg'.il services in procuring the dismissal of the action foy injunctive relief and the setting aside of the restraining orders and injunctive orders, then you sh< nld find for the plaintiffs on this item the sum of $0.000, unless you further believe from a fai'1' preponderance of the evidence that the attorneys’ fees charged by these attorneys for these services were unreasonably large, and if you find from the preponderance of the evidence that these attorneys’ fees collected were unreasonable, then you should find! for the plaintiffs in this item such sum by way of attorneys1 fees as was feasonable.”

Note. — See under (1) 17 C. J. pp. 786, 788, § 112; 32 O. J. p. 468, § 814. (2) 32 O. J. p. 470, § 816, (3) 32 C. J. p. 476, § 821. (4) 32 C. J. pp. 478, §§ 824, 825; 479, sec. 825.

The court, in instruction No. 6, instructed the jury in the following language:

“ Usually w|hen attorneys and clients agree upon a fee and the client pays the amount agreed upon the^'e is presumption that the amount paid is a reasonable amount and you should so find it unless you further 'believe from a fair preponderance of the evidence that the amount so paid was not paid in good faith or that it was entirely out of the proportion as compensation for the services contemplated and the results obtained as described in instruction No. 5.”

The rul'e is* well stated in 32 Corpus Juris, page 478, sec. 825 of thei chapter on Injunctions, being the section of said chapter dealing with the amount Which shall be allowed as attorneys’ fees in a suit upon an injunction bond. The author states the rule in the following language:

“The burden is on the .party asking the allowance to prove that the amount asked is reasonable, and the meye fact that the attorney has charged and that the party claiming the allowance has paid a certain amount as fees, or that the attorney to whom the fee was paid considered it reasonable, does not establish such fact.”

AVe are of the opinion that these instructions were erroneous and prejudicial. AVe think that it was the duty of the plaintiffs, when their cause of action was predicated on an obligation providing for the recovery of reasonable attorneys’ fees, to show that the amount the plaintiffs had Paid or become liable to pay was the usual customary fees paid for such services, and that such amount was reasonable; and that the burden did not shift to the opposing Party to show that such' fees were unreasonable.

The defendants also urge that instruction No. 8, submitted by the court to the jury, was erroneous for the ,reason that the same submitted the question to the jury upon the issue as to whether the plaintiffs were entitled to recover any loss or profits that they suffered on account of the store being closed on the morning of the 23rd of March, 1922, AVe have discussedl this item in another portion of this opinion and held that the plaintiffs could not recover on the said item, and of course, the court halving submitted this issue in its instruction No. 6, the same was erroneous and prejudicial.

The cause is reversed and remanded, with directions to proceed in said cause not inconsistently with the views herein expressed.

NICHOLSON, C. J., BRANSON. V. O. J.. and HARRISON, MASON, PHELPS, CLARK, and RILEY. JJ., concur.

HUNT, J., disqualified and not participating.  