The only assignment of error in the brief of counsel for plaintiffs in error necessary to be considered in determining this case is the overruling by the trial court of the demurrer of plaintiffs in error to the evidence of defendants in error. This action was commenced by defendants in error upon an injunction bond, given by plaintiffs in error in an action for an injunction in the district court of Washita county, brought by J.H. Felkner against the defendants in error as individuals to restrain them from acting as the school board of a consolidated district. The petition alleges that the defendants in error were damaged, by reason of the procuring of a temporary injunction in the action brought by Felkner, in the following amounts:
"For expenses in having said injunction dissolved and defending against the appeal of said cause in the Supreme Court, that plaintiffs had to expend the sum of $150 attorney's fees, and $30 expense money for attorney, and $15 for printing brief for Supreme Court, in the sum total of $195, for which they pray judgment." * * *
At the trial the evidence disclosed that the moneys which it is alleged defendants in error expended were paid by the school district of which the defendants in error were officers. It does not appear from the evidence that the defendants in error paid any sums of money in procuring the dissolution of the temporary injunction, or that they became liable to pay any sums of money for attorney's fees or expenses in procuring such dissolution.
Both plaintiffs in error and defendants in error devote the greater portions of their briefs to arguing the question of whether or not this action was brought in the names of the real parties in interest. We think it is *Page 745 clear that the defendants in error were the real parties in interest in the action, as the bond sued upon ran to them individually, and they were restrained in the action in which the bond was given, as individuals, from performing any official acts for the school district. The acttion was therefore rightly brought in their names, but as to their right to recover any amount upon the bond under the state of the proof there is some difficulty. The only case cited by defendants in error upon this proposition is the case of Breeze v. Haley,13 Colo. App. 438, 59 P. 333. The language used in the opinion in that case seems to support the right of the defendants in error to recover upon an injunction bond under a state of proof similar to the facts in this case. But this question was not squarely before the court in that case. The court says:
"The only question before us for consideration is whether the action was properly brought in the name of the plaintiff.'
It was determined that the action was brought in the name of the real party in interest, and it was not necessary to determine the other question discussed by the court, as the cause had not been tried on its merits, but had been dismissed as not brought by the real party in interest. So that the holding of that court that the plaintiff in the case cited might recover upon the injunction bond, even though the expenses for which he sued had been paid by the county, must be considered merely dictum, and it is, as we think, contrary to the weight of authority. The other cases cited in the briefs of defendants in error do not touch upon this question.
It is well settled that in an action upon an injunction bond the obligee may recover for attorney's fees and expenses in procuring the dissolution of an injunction, even *Page 746 though such attorney's fees and expenses have not been paid by the obligee at the time of bringing the action upon the bond. But it is equally well settled that if the obligee has not paid such attorney's fees and expenses, he must at least have incurred a liability therefor. Littleton v. Burgess,16 Wyo. 58, 91 P. 832, 16 L. R. A. (N. S.) 49, and note at page 76; Underhill v. Spencer, 25 Kan. 72;Holthaus v. Hart, 9 Mo. App. 1; Martin v.Jamison, 39 Ill. App. 248, at page 257; Packer v.Nevin, 67 N.Y. 550-553; Rees v. Peltzer, 1 Ill. App. 315 -325; Fisher v. Tribby, 5 Ill. App. 335-340;Rosenthal v. Boas, 27 Ill. App. 430-432; Scheningv. Cofer, 97 Ala. 726, 12 So. 414. In the case last cited the court says:
"There was really no evidence offered in support of this averment as to expenses paid or incurred for the services of counsel in the premises. The evidence which was intended or supposed to sustain the complaint in this regard was no more than this: That counsel did appear for Mrs. Cofer and represented her in securing a dissolution of the injunction, and that his services in that matter were worth about $70, but that she had never paid him anything for his services; that she was his wife, and he made no charge against her for such services, and did not intend to charge her for said services. It is most manifest on this evidence that plaintiff sustained no damage whatever by reason of the employment of an attorney to dissolve the injunction, and that any recovery in that behalf would either be net gain and profit to her, or would inure to the benefit of the attorney, who, having rendered his services gratuitously, has no claim thereto, and who advances, and, not being a party to this action, could advance no claim thereto even if he had any such claim. The court erred, therefore, in giving the charge requested by plaintiff which authorized a verdict for attorney's fees." *Page 747
It will be seen from a consideration of the foregoing authorities that in order for the defendants in error to recover upon the injunction bond sued on for the expenses claimed in their petition, they must establish by the evidence that they either paid or incurred a fixed and existing liability for such expenses. This the evidence in this case does not disclose. It appears from the evidence of defendants in error, and is admitted in their brief, that the expenses and attorney's fees sued for were paid by the school district. It also appears that the school district at the same time, and by two of the same warrants, paid the attorney who represented defendants in error in the injunction suit for fees and expenses in a mandamus suit, the nature of which does not appear from the record. So that from the evidence of defendants in error it is clear that they did not pay or incur any liability for attorney's fees or expenses in connection with the injunction suit; therefore the evidence was insufficient to support a verdict in favor of defendants in error against plaintiffs in error.
It also appears that there was a variance between the petition of defendants in error and the proof, which variance was challenged by the demurrer to the evidence of defendants in error. It has been repeatedly held by this court that the plaintiff must recover upon the cause of action set out in his petition, and that the proof offered must not vary materially from the allegations contained in the petition. In this case the petition alleges that defendants in error had to expend the sums of money sought to be recovered to have the injunction dissolved, and to defeat the action of plaintiff in error Felkner; while the proof was that the school district had to, or did, spend such sums of money, and there is no evidence that defendants *Page 748 in error incurred any liability whatever. We, therefore, conclude that this variance was fatal to the recovery of defendants in error in this action. Chambers v. VanWagner, 32 Okla. 774, 123 P. 1117; InternationalBank v. Bowser, 33 Okla. 316, 125 P. 458.
We are therefore of the opinion that the demurrer of the plaintiffs in error to the evidence should have been sustained, and that this cause should be reversed and remanded for a new trial.
By the Court: It is so ordered.