ALASKA IMPROVEMENT COMPANY, Respondent, v. CHARLES HIRSCH et al., Appellants, 119 Cal. 249

TEMPLE, J. Action upon an injunction bond. Defendants appeal from the judgment and from an order denying a new trial. An action was brought against plaintiff in the United States circuit court to enjoin it from using a certain trademark and label. October 23, 1890, a temporary restraining order was made, pending an order to show cause why an injunction pendente lite should not he issued. Both orders were served on that day.

On the next day, counsel for the defendant in the injunction suit, plaintiff here, “moved the court for an order requiring complainant to give a bond, in the sum of ten thousand dollars conditioned for the payment to respondent of such damages as it may be awarded, by reason of the issuance of said temporary restraining order, if the court should finally determine that complainant was not entitled thereto.” The order was made as requested. The bond sued upon was given in pursuance of that order.

It recited the issuance of the restraining order and the order requiring the bond, and that “in consideration of the premises and of the issuing of said restraining order” the sureties undertake in the penal sum of ten thousand dollars, and promise for complainant that he would pay all damages sustained by the defendant in that suit, by reason of the restraining order, if the court should finally determine that the complainant was not entitled to it. The court finally so held. The defendants contend that the bond is absolutely void for want of consideration, and I think the contention must be sustained.

The word “premises” in the bond refers, of course, to the recitals as to the bringing of the suit, the restraining order, and the order requiring the bond. The bond contains no recital to the effect that it was executed to obtain a continuance of the restraining order, and if it did such recital would amount to nothing unless it appeared in the order requiring the bond, or at least in some mode, that a bond was necessary to a continuance of such order.

It does not appear that the restraining order was continued in force at all by reason of the bond, or that by giving it the plaintiff in the injunction suit gained any advantage whatever. The order requiring the bond did not make the continuance of the restraint conditional upon giving the bond, and in no way is it 'made to appear that the restraining order would have been dissolved if the bond were not given. The court could make the restraining order without a bond, and it was just as good for the plaintiff in that suit without a bond as witli one.

It is said that the court could have dissolved the restraint if the bond had not been given, and since the judge required the giving of the bond, and thereby indicated his opinion that the defendant, who was enjoined, was entitled to one,' it is to be presumed that he would have so acted. There is no presumption in the matter, and if there were it would not change the fact that the bond when given was without consideration.

The judge could have dissolved the injunction although a bond had been given, but in neither case can we suppose that the injunction would have been dissolved without a notice and a hearing, nor until the plaintiff in that suit had been afforded an opportunity to give the bond after the alternative had been presented to him—in short, after a bond had been lawfully demanded. But if the question of a dissolution of the restraining order was left for the future consideration of the court, and it would not have been dissolved by a failure to give the bond, then the giving of it did not secure its continuance.

In principle, therefore, the case is on all fours with Carter v. Mulrein, 82 Cal. 167, 16 Am. St. "Rep. 98, where the bond was given after the issuance of an injunction, but recited that it was given in consideration of its issuance. The decision is not made to turn, as suggested, upon a misrecital of the facts, but because the undertaking, having been given after the issuance of the writ, could not be considered as given in consideration of its issuance. It was therefore without consideration and void. In Lambert v.

Haskell, 80 Cal. 611, the order expressly provided that the injunction should not continue unless the undertaking was given. The sureties contended that they could stand upon the letter of their contract, and as the bond did not recite such consideration, but, as they contended, a different and a void consideration, to wit, the previous issuance of the injunction, it was void. The court there, as distinctly as in Carter v.

Mulrein, supra, recognized the fact that if the undertaking was given in consideration of the previous issuance of the writ it was void, but agreed that, under the circumstances, they were authorized to hold that the undertaking was given in consideration of the continuance of the injunction. In that case the order required the undertaking as a condition to the continuance of the restraint, and it was given in order to obtain such continuance. The recital of the consideration was not within the rule that a surety may stand upon the letter of his bond.

The rule only has reference to the extent and measure of the liability of the surety. He cannot be held to have contracted to do more than he said he would do. Proof of a consideration for such a contract can be made as in other cases. Here, the giving of a bond was not made to affect the continuance of a restraint, therefore the continuance of the restraint could not have been a consideration for the bond, even though it had been so recited in the bond. If these views are correct the other points made become immaterial. The judgment and order are reversed. Harrison, J., and Henshaw, J., concurred.