Dillon, J.
„ T protect prop.y erty: damages. I. On the trial, plaintiff produced a witness who testified that he (plaintiff) had on the yard, about thirty-five thousand brick, moulded, sun-dry-ing an^ rea(ty to he put into the kiln at the t;me injunction was served, and that these brick were all destroyed by a rain that occured a few days after the service of the writ. He also testified that if plaintiff had been allowed by the writ, he could have saved a good deal of the damages; “ that plaintiff could have saved all the brick that were destroyed if he had had a right to take care of them while the injunction was in force.” There was no contradictory testimony on this point.
Defendant asked the court to instruct the jury as follows:
“ 2. If the alleged damages resulted from the negligence of the said John Beherns, he cannot recover in this action; and if the jury believe from the evidence that any damage to said brick could have been prevented by plaintiff, by reasonable care, he cannot recover for such damage in this action.” Altered by adding, “ provided, however, that the plaintiff is not liable for any want of care on his part, when such property is removed from his custody by the [341]*341process of the law; and while such property remains in the custody of the law, any act of his, intermeddling with it, would be a breach of the command of the writ, and be a contempt; the responsibility for proper care thereof resting on the party serving the process of the law, until it is returned to the party from whose possession it is taken by the command, forbidding him from using or intermeddling with it in any way.”
“ 3. No claim is made as to the burnt brick, and if the sun-dried or unburnt brick could have been saved from damage by the said John Beherns by reasonable care and diligence, and if the jury so believe from the evidence, he cannot recover in this action for the alleged damages to such brick.” Altered thus: “ provided, however, Beherns is in no wise responsible for any want of care of the unburnt brick, after the service of the injunction on him, until the property was returned to him on the order dissolving the injunction.”
What the writ restrained plaintiff herein from doing, will be seen by reference to the statement of the cause prefixed to this opinion. We hold that the writ of injunction did not prevent the plaintiff from taking steps or using efforts to protect the brick from the rain. Such steps or efforts would not, as supposed by the court below, be any violation of the command of the writ.
The instructions as asked should have been given. Davis v. Fish, 1 G. Greene, 406, 409; 2 Greenl. Ev. § 260, and cases cited.
The alterations made by the court were erroneous.
2. — Rond: damages: attorney’s fee. II. The defendant asked the court to charge: “ That the claim for seventy-five dollars as counsel fees, paid by plaintiff for services in said injunction suit, . a •» . . , are not a proper subject of damages m this action, and the same is not to be allowed by the jury.” Altered by the court thus: “ provided, however, that a [342]*342reasonable amount of compensation paid for legal services, in procuring tbe removal of tbe writ of injunction, is a proper item of damages.”
The court also charged that “ reasonable compensation paid for legal services in procuring a release of the injunction,” might be recovered in an action on the injunction bond. The defendant excepted, and assigned the court’s ruling in this respect as error.
We are aware that the authorities on this subject are conflicting. We have re-examined them to ascertain the reasons advanced to sustain either line of decision. The court instructed that reasonable compensation to an attorney to procure a dissolution of the writ, or a release of the property therefrom, may be recovered in an action on the bond, if the injunction was wrongfully issued.
This does not allow attorney fee for services in defending the entire suit, but for defending against the writ, i. e., for procuring its dissolution or a release of the property from its operation. In our judgment, the better reason is in favor of this rule. This was so stated arguendo, by Baldwin, J., in Campbell v. Chamberlain (10 Iowa, 337), which was an action on an attachment bond. The tendency of modern adjudication, if not, indeed, the very decided weight of judicial opinion, is the same way. Corcoran v. Judson, 24 N. Y. 107; Edwards v. Bodine, 11 Paige, 224; Thraie v. Quan, 3 Cal. 216; Prader v. Grim, 13 Id. 585; Garrett v. Logan, 19 Ala. 344; Morris v. Price, 2 Blackf. 457.
The case of Newell v. Sanford (13 Iowa, 463) is distinguishable from the present case, in that the claim for an attorney’s fee was not upon a bond.
3; — msanantnoaefense. III. The bill of exceptions states, that, on the trial, the defendant called Dr. Ilorr, Dr. Sprague, Dr. Finley, and other witnesses, and offered to prove, that the said John UcKenzie at the time of signing [343]*343said injunction bond sued on, was an insane person, and had been insane and non eonvpos mentis for a long time previous to the commencement of said injunction suit. This proof the court refused to allow to be made.
Defendant excepted, and now assigns this ruling of the court as error.
The decided cases are far from being uniform on the subject of the liability or extent of liability of persons of unsound mind for acts and contracts done and made while in this condition.
Argu. i. Torta, Such persons are generally held liable civilly for tresA passes and torts, as the actionable quality of such acts does not depend upon intention. Morse v. Crawford, 17 Verm. 499.
Argu. 2. Contracts. They are not usually held liable on contracts purely executory, not for necessaries, particularly where the mental unsoundness is known to the other party, or might have been by the exercise of ordinary observation.
But, with respect to executed contracts, the tendency of modern decision is to hold them liable in cases where the transaction is in the ordinary course of business, is fair and reasonable, and the mental condition was not known to the other party, and the parties cannot be put in statu quo. Molton v. Cameroux, 2 Exch. Welsby, H. & G. 487; affirmed in error, 4 Id. 17. The special verdict in that case being, in substance, like the answer in the case at bar. Beavan v. McDownell, 9 Exch. 309; Pason v. Warren, 14 Barb. 488, 496; Story’s Equity, §§ 228-238; Long v. Long, 9 Md. 348. This case is peculiar. The injunction bond was filed under the statute, without consulting the present plaintiff.
The bond was not the result or evidence of a negotiation or contract between the parties. As between an executory and executed contract, the nresent transaction [344]*344resembles tbe latter; McKenzie received and enjoyed the benefit of the writ of injunction, which was the consideration for the bond which he executed.
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Dillon, J.
„ T protect prop.y erty: damages. I. On the trial, plaintiff produced a witness who testified that he (plaintiff) had on the yard, about thirty-five thousand brick, moulded, sun-dry-ing an^ rea(ty to he put into the kiln at the t;me injunction was served, and that these brick were all destroyed by a rain that occured a few days after the service of the writ. He also testified that if plaintiff had been allowed by the writ, he could have saved a good deal of the damages; “ that plaintiff could have saved all the brick that were destroyed if he had had a right to take care of them while the injunction was in force.” There was no contradictory testimony on this point.
Defendant asked the court to instruct the jury as follows:
“ 2. If the alleged damages resulted from the negligence of the said John Beherns, he cannot recover in this action; and if the jury believe from the evidence that any damage to said brick could have been prevented by plaintiff, by reasonable care, he cannot recover for such damage in this action.” Altered by adding, “ provided, however, that the plaintiff is not liable for any want of care on his part, when such property is removed from his custody by the [341]*341process of the law; and while such property remains in the custody of the law, any act of his, intermeddling with it, would be a breach of the command of the writ, and be a contempt; the responsibility for proper care thereof resting on the party serving the process of the law, until it is returned to the party from whose possession it is taken by the command, forbidding him from using or intermeddling with it in any way.”
“ 3. No claim is made as to the burnt brick, and if the sun-dried or unburnt brick could have been saved from damage by the said John Beherns by reasonable care and diligence, and if the jury so believe from the evidence, he cannot recover in this action for the alleged damages to such brick.” Altered thus: “ provided, however, Beherns is in no wise responsible for any want of care of the unburnt brick, after the service of the injunction on him, until the property was returned to him on the order dissolving the injunction.”
What the writ restrained plaintiff herein from doing, will be seen by reference to the statement of the cause prefixed to this opinion. We hold that the writ of injunction did not prevent the plaintiff from taking steps or using efforts to protect the brick from the rain. Such steps or efforts would not, as supposed by the court below, be any violation of the command of the writ.
The instructions as asked should have been given. Davis v. Fish, 1 G. Greene, 406, 409; 2 Greenl. Ev. § 260, and cases cited.
The alterations made by the court were erroneous.
2. — Rond: damages: attorney’s fee. II. The defendant asked the court to charge: “ That the claim for seventy-five dollars as counsel fees, paid by plaintiff for services in said injunction suit, . a •» . . , are not a proper subject of damages m this action, and the same is not to be allowed by the jury.” Altered by the court thus: “ provided, however, that a [342]*342reasonable amount of compensation paid for legal services, in procuring tbe removal of tbe writ of injunction, is a proper item of damages.”
The court also charged that “ reasonable compensation paid for legal services in procuring a release of the injunction,” might be recovered in an action on the injunction bond. The defendant excepted, and assigned the court’s ruling in this respect as error.
We are aware that the authorities on this subject are conflicting. We have re-examined them to ascertain the reasons advanced to sustain either line of decision. The court instructed that reasonable compensation to an attorney to procure a dissolution of the writ, or a release of the property therefrom, may be recovered in an action on the bond, if the injunction was wrongfully issued.
This does not allow attorney fee for services in defending the entire suit, but for defending against the writ, i. e., for procuring its dissolution or a release of the property from its operation. In our judgment, the better reason is in favor of this rule. This was so stated arguendo, by Baldwin, J., in Campbell v. Chamberlain (10 Iowa, 337), which was an action on an attachment bond. The tendency of modern adjudication, if not, indeed, the very decided weight of judicial opinion, is the same way. Corcoran v. Judson, 24 N. Y. 107; Edwards v. Bodine, 11 Paige, 224; Thraie v. Quan, 3 Cal. 216; Prader v. Grim, 13 Id. 585; Garrett v. Logan, 19 Ala. 344; Morris v. Price, 2 Blackf. 457.
The case of Newell v. Sanford (13 Iowa, 463) is distinguishable from the present case, in that the claim for an attorney’s fee was not upon a bond.
3; — msanantnoaefense. III. The bill of exceptions states, that, on the trial, the defendant called Dr. Ilorr, Dr. Sprague, Dr. Finley, and other witnesses, and offered to prove, that the said John UcKenzie at the time of signing [343]*343said injunction bond sued on, was an insane person, and had been insane and non eonvpos mentis for a long time previous to the commencement of said injunction suit. This proof the court refused to allow to be made.
Defendant excepted, and now assigns this ruling of the court as error.
The decided cases are far from being uniform on the subject of the liability or extent of liability of persons of unsound mind for acts and contracts done and made while in this condition.
Argu. i. Torta, Such persons are generally held liable civilly for tresA passes and torts, as the actionable quality of such acts does not depend upon intention. Morse v. Crawford, 17 Verm. 499.
Argu. 2. Contracts. They are not usually held liable on contracts purely executory, not for necessaries, particularly where the mental unsoundness is known to the other party, or might have been by the exercise of ordinary observation.
But, with respect to executed contracts, the tendency of modern decision is to hold them liable in cases where the transaction is in the ordinary course of business, is fair and reasonable, and the mental condition was not known to the other party, and the parties cannot be put in statu quo. Molton v. Cameroux, 2 Exch. Welsby, H. & G. 487; affirmed in error, 4 Id. 17. The special verdict in that case being, in substance, like the answer in the case at bar. Beavan v. McDownell, 9 Exch. 309; Pason v. Warren, 14 Barb. 488, 496; Story’s Equity, §§ 228-238; Long v. Long, 9 Md. 348. This case is peculiar. The injunction bond was filed under the statute, without consulting the present plaintiff.
The bond was not the result or evidence of a negotiation or contract between the parties. As between an executory and executed contract, the nresent transaction [344]*344resembles tbe latter; McKenzie received and enjoyed the benefit of the writ of injunction, which was the consideration for the bond which he executed.
The answer did not state, nor did the proposed evidence offer to show, that the present plaintiff, or the clerk, knew of McKenzie’s incompetency. His petition for the injunction was filed by respectable attorneys.
It is not to be presumed that they were aware of their client’s alleged mental condition. It would seem from these considerations, as well as from other facts of the record, that McKenzie was allowed to and was in the habit of transacting his own business.
The state of the law is such as to allow us to decide this case upon principle, and thus deciding it, we are of opinion, that upon the circumstances above indicated, no error is shown in the action of the court in rejecting the proposed evidence.
We need not notice the other points made. If the court allowed too wide a range in admitting testimony as to damages^ the error in this respect was probably cured by the guarded instructions to the jury.
For the error first noticed, the judgment below is reversed, and the cause remanded.
Reversed.