The plaintiffs secured an injunction which prevented the defendants from selling certain pine plank to any one. other than the plaintiffs. Not being permitted to sell to any other, the defendants sold the plank to the plaintiffs for $18 per thousand, with the agreement, however, that such sale should not prejudice their rights in this proceeding. If the plaintiffs paid the defendants as much as they could have obtained from others, although. the injunction was improvidently issued the defendants' damages. would be merely nominal. But it is found that but for the injunction the defendants could have sold the plank to others for $2 per thousand more than the plaintiffs paid; and as upon the evidence it could have been found that they would have made such sale. except for the injunction, the finding that they have been damaged by the issuance of the injunction $2 per thousand upon 544,310 feet, the amount cut on the lot, all of which the plaintiffs received, presents no error of law.
In the present proceeding, the contract alleged by the plaintiffs *Page 317 as the foundation of the proceedings which have been decided against them is immaterial. The measure of damages is not the difference between what the defendants did receive and what they would have received of the plaintiffs under the contract, but the difference between what they did obtain and what they could have received but for the injunction. It has been decided in this case that the defendants could not be compelled to sell the plank to the plaintiffs. New England Box Co. v. Prentiss,75 N.H. 246. By that decision all parties to the present proceeding are bound. Towle v. Towle, 46 N.H. 431. As the defendants could not be compelled to sell the plank to the plaintiffs, the sum they would have been obliged to accept for it if compelled to so sell it can have no bearing on the question of the damages occasioned by the wrongful prevention of such sale to others. As the defendants had the right to sell to others, they had the right to such price as they could obtain from them. The foundation of this proceeding is the wrong in granting the injunction. That wrong could not be cured by the trial and conclusion in favor of the plaintiffs of the question already conclusively determined against them.
The decision upon demurrer (75 N.H. 246) left open the question whether the plaintiffs could recover damages of the defendants for the breach of an agreement to contract the plank to the plaintiffs. If upon appropriate pleadings the defendants could have recouped such damages in this proceeding, no attempt has been made to do so or to show any damages. Assuming that the defendants, instead of performing a valid contract to sell to the plaintiffs, had sold to others at a higher price, the measure of the plaintiff's damages would not be the difference between the price agreed and the price the defendants obtained, but the difference between the agreed price and the price the plaintiffs might be obliged to pay others to obtain the same material. Ordinarily this would be the difference between the agreed price and the market price; and as the agreed price was the market price, if there is a market where the price was established in which such material could be obtained it would seem, as already suggested, that the plaintiffs could supply their wants in the market (75 N.H. 247), and the only ground of damages would be the possible disturbance of their business by delay. But the plaintiffs have had the plank, and claim they could buy and were buying from others at $18 — the price they were willing to pay the defendants. There seems no ground upon which damages could be claimed under the circumstances disclosed. *Page 318
The defendants were enjoined from selling "any of the plank, lumber, or timber described in said petition to any person." In the petition the plaintiffs asked for an injunction restraining the defendants from selling the pine plank "or any of the lumber or timber on said Richardson lot to any person." Naturally, the defendants understood that the injunction, by reference to the petition which mentioned all the lumber and timber on the Richardson lot as the matter to which the injunction should relate, restrained the defendants from selling any of the lumber or timber on the lot. Such is the plain import of the language. Doubtless with their knowledge of the situation, counsel may have advised the defendants that the injunction was broader than the plaintiffs could properly ask for, as probably they advised them that upon the facts the injunction could not be maintained at all. But the belief of the defendants or their counsel that the plaintiffs were not entitled to the injunction in whole or in part did not authorize them to violate it in any particular. They may not have understood why the plaintiffs thought it necessary to prohibit the removal of any lumber from the lot; but whatever speculations they may have had on this point, they were justified in yielding implicit obedience to the order of the court, and are entitled to recover the loss thereby sustained.
The exceptions to evidence do not require consideration. The damages assessed should be increased by the sum of $237.
Exceptions overruled.
All concurred. *Page 319