Lambert v. Haskell

Citations

• 80 Cal. 611
• 22 P. 327
• 1889 Cal. LEXIS 966

Syllabus

<p>Pleading—Setting forth Instrument in Full — Exhibits — Collateral and Preliminary Matters of Substance. — While under our system it is good pleading to set forth in full an instrument upon which the action or defense is founded, yet this does not apply to preliminary and collateral matters of substance. Such matters must he alleged, and recitals in the instrument cannot serve as such allegations.</p> <p>Undertaking to Continue Injunction in Force — Construction of Words “in Case Said Injunction shall Issue”:in Same.—If a preliminary injunction has been issued on an insufficient undertaking, the court has power, upon a motion to dissolve, to order that the injunction be dissolved unless a proper undertaking be given. And where an. undertaking is given in response to such an order, the phrase “in case said injunction shall issue,1’ used in the undertaking, does not of itself conclusively show that the undertaking was not upon the injunction continued in force. The circumstances may be such as to show that it was so given. Instance.</p> <p>Injunction — Damages — Profits Which would have been Made — Evidence of Profits Actually Made. — Where an established business is suspended by a preliminary injunction to which the party was not entitled, the profits which would have been made can be recovered. And evidence of the profits which were actually being made is admissible upon such question.</p> <p>Id. — Preliminary Injunction — Merger in Final Decree — Subsequent Damages not Recoverable—Reversal — Counsel Fees on Appeal. — As a general rule, no undertaking can be required upon a final decree; and the functions of a preliminary injunction cease when the final decree is made; consequently damages subsequently accruing cannot be recovered from the sureties, although the final decree be reversed on an appeal; but counsel fees on appeal from an order refusing to dissolve the injunction taken before the final decree is made, are recoverable, if the evidence segregates the am