delivered the opinion of the court:
The damages, claimed by appellee in his declaration, are, first, those alleged to have accrued to appellee during the time the injunction remained in force, that is to say, about eight months, upon the alleged ground that appellee was prevented from merchandising, and making profit on the stock of dry goods in question, and from carrying on his business as a merchant; and second, fees of his solicitors and counsel in and about the dissolution of the injunction, alleged by appellee to have been incurred and paid by him.
First—It is claimed by appellants, that the court below erred in allowing appellee any damages for injury to his business, and loss of profits therein, while the injunction was in force. It is well settled that, in such cases, damages, which are'remote, speculative and incapable of ascertainment cannot be allowed, but where, by the issuance of an injunction, a business is unavoidably suspended and thereby injured, damages may be allowed. It may not be possible to show by demonstration the precise extent of such damages, but profits for a reasonable period next preceding the time, when the injury was inflicted, may be taken as the measure of such damages, and as the basis of an estimate thereof, leaving the other party to show that, by depression in trade or other causes, they would have been less. (Chapman v. Kirby, 49 Ill. 211; Green v. Williams, 45 id. 206; Gerard v. Gateau, 15 Ill. App. 520).
In the case at bar, there was evidence, tending to show that the business of appellee was injured by reason of the issuance of the injunction. • The final decree of the court in the chancery proceeding for the specific performance of the contract dismissed the bill, and dis-. solved the injunction. The dismissal of the bill and the dissolution of the injunction were conclusive that the injunction was wrongfully sued out. (Cummings v. Mugge, 94 Ill. 186.) The only question, then, in the present case is as to the extent, to which the appellee was injured by reason of the issuance of the injunction. Upon this branch of the case, no error of law was committed by the trial court, of which the appellants can complain, because the propositions of law upon this subject submitted by the appellants to the court were held to be the law in the case. The trial court held “that, under the breach alleged in the declaration charging that plaintiff incurred damages to his business as a merchant, he is not entitled to recover anything for anticipated profits in carrying on his business.” The court also held for the appellants another proposition of law to the following effect, to-wit: “that plaintiff cannot recover in this case for prospective gains and profits that might result from his business as a merchant, or other damage than that arising solely from the issue and service of the injunction writ, and its effect upon his business as a merchant.”
' Second —1The evidence shows that, when the injunction in the chancery case was served upon the defendant therein, the present appellee, Wolf, he employed two attorneys to procure for him a dissolution of the injunction, and agreed to pay them $500.00,—$250.00 apiece. A motion was made to dissolve the injunction for want of equity appearing upon the face of the bill, but this motion was overruled by the court. The attorneys employed then proceeded to take testimony before the master, and a final hearing of the cause was had. The injunction was not dissolved until such final hearing, which resulted in the dismissal of the bill. This court has held in many cases that, where counsel fees are necessarily incurred in procuriiig the dissolution of an injunction, they may be allowed as damages, but that, where the injunction is merely ancillary to the principal relief sought by the bill, and its dissolution is only incidental to the defense made, and the counsel fees are incurred in defending the suit generally, they cannot be assessed as damages. (Walker v. Pritchard, 135 Ill. 103; Jevne & Almini v. Osgood, 57 id. 340; Elder v. Sabin, 66 id. 126; Alexander v. Colcord, 85 id. 323; Blair v. Reading, 99 id. 600; Milligan v. Nelson, 188 id. 189.) In the latter case of Milligan v. Nelson, supra, we said: “It is well settled in this State that, on suggestions, damages will not be allowed for services rendered in the general defense of the suit, but only such as have been incurred for the purpose of getting rid of an injunction on a motion to dissolve, and not upon final hearing.” In Jevne v. Osgood, supra, it was said: “It [the statute] was only intended to reimburse the defendant for moneys which he has paid, or for which he has become liable, on . the motion to dissolve.” In Elder v. Sabin, supra, it was said: “The statute only allows the assessment of damages sustained by reason of improperly suing out the injunction, and the damages must be confined alone to that ground. The charge for lawyer’s fees could only extend to the motion to dissolve the injunction.” In Blair v. Reading, supra, we said: “The propriety of suing out the injunction was never called up or considered by the court until the case was finally considered on its merits. Hence, the extra expense of a separate hearing of a motion to dissolve was not incurred.”
In the case at bar, the cause came on for a final hearing after testimony was taken, and the report thereon had been made by the master to the court. Upon such final hearing, the court heard evidence, and considered the question, whether the complainant in the bill was entitled to a specific performance of the contract, or not. The main question involved in the case was, whether the defendant in the chancery suit had performed the contract for the purchase of the stock of goods, so as to be entitled to their possession. The court held that the complainant was not entitled to the relief prayed for, and, in view of the issues made by the bill and answer, must have held that the defendant had specifically performed the contract. Incidentally to the determination of the main question, whether or not there had been a specific performance of the contract, the court upon the final hearing dissolved the injunction. The services of counsel were performed, not merely for the purpose of securing a dissolution of the injunction, but in defense of the suit upon the charges set up in the bill. Damages cannot be assessed for services of counsel in thus making a general defense of the suit. As was said in Jevne v. Osgood, supra, “to give the statute such an unreasonable construction would render it an instrument of great oppression.” ' 0
In its rulings upon the evidence and upon the propositions of law submitted to it, the trial court ignored the rule thus announced. It allowed, as damages, $500.00 as counsel fees, which were earned, not merely in procuring' a dissolution of the injunction, but also in making a general defense of the suit."
It is true that the testimony, introduced on behalf of appellee, tended to show that his contract with his lawyers was a contract to procure a dissolution of the injunction. But the mere fact, that it was called a contract to procure a dissolution of the injunction, would not have the effect of limiting the services of the attorneys to securing that object, if, in fact, as the testimony shows, such services were directed to a general defense of the suit, as well as to a dissolution of the injunction. The court refused to permit evidence to be introduced for the purpose of showing how much of the services rendered were necessary to procure a dissolution of the injunction, and how much of such services were rendered in the general defense of the suit. The court also refused to hold, as the law in the decision of the case, propositions submitted to the court by the appellants below to the effect that appellee was not entitled to recover for fees paid, or contracted to be paid to his counsel in the chancery cause brought for a specific performance and injunction, if the services of said counsel were directed to a defense upon the merits of the bill, although including find involving a dissolution of the injunction. The court also refused to hold as law a proposition submitted by the appellants to the following effect: “The court holds the law to be that, when a claim for attorneys’ fees is made, and the evidence does not disclose how much fees are incurred or paid oh a motion to dissolve the injunction, but does disclose that $500.00 was paid upon a motion to dissolve and upon a final hearing together, then the plaintiff cannot recover for attorneys’ fees.” We are of the opinion that the court erred in this regard. Where the evidence makes no discrimination between services rendered-in the case generally, and services which were strictly necessary to procure a dissolution of the injunction, there is no evidence upon which the assessment of damages can be based; and, therefore, the allowance of damages in such case cannot be sustained. (Lambert v. Alcorn, 144 Ill. 313.)
We concur in what is said by the Appellate Court in its opinion, deciding this case, as to the sustaining by the trial court of a demurrer to the amended sixth and seventh pleas. In such opinion it is said: “By these pleas it was sought to relieve appellants from all liability under the injunction bond, except nominal damages, because appellee began suit in attachment against Landis, and had the attachmént writ levied upon the goods after the service of the injunction writ. * * * The scope of the injunction writ was to restrain appellee from selling the goods under an asserted right by purchase. It had no reference to an enforcement of any right, which he might have had against Landis, as a creditor. He was by the injunction left free to exercise by attachment, as creditor, any right, which any other creditor might exercise. The suing out of the attachment writ, therefore, was not in violation of the injunction. * * * The pleas present no bar to the recovery of damages.”
For the error committed by the trial court in allowing counsel fees as part of the damages, the judgments of the Appellate and county courts are reversed, and the cause is remanded to the county court for further proceeding's in accordance with the views herein expressed.
Reversed and remanded.