THAYER, Circuit Judge,
after stating the case as above, delivered the opinion of the court.
It is contended, in the first place, that the trial court erred in permitting the plaintiffs below, who are the defendants in error here, to [525] introduce the following record testimony: First, the mandate of this court in the equity case in which the injunction bond had been given; second, the judgment rendered against R. it. Atkinson and E. B. Houston, on May 9, 1896, for $11,817.79; and, third, the execution, with (he marshal’s return indorsed thereon, which was issued upon said judgment. We think, however, that this contention is untenable, since the testimony in question established certain relevant facts which were alleged in the complaint and were not specifically denied by Hie answer. It may be that it was unnecessary to have read the records in evidence, because the facts which they tended to prove were, in effect, admitted by the pleadings; but if the plaintiffs saw fit to establish the allegations of their complaint with greater certainty, by introducing the records, the defendants cannot be heard to complain. They were not prejudiced by the proof of facts which they had admitted.
The defendants further urge that error was committed by the trial court in permitting the plaintiffs to prove the following facts by parol testimony, namely: That, immediately after the decree dismissing the bill and dissolving the injunclion had been entered, an interview took place between the judge of the trial court and counsel for the complainants and the defendants in said suit, and that in the course of said interview the judge of the trial court stated to counsel, In substance, that if an appeal was taken from said decree, as was- then contemplated by the complainants in that case, it would not be necessary to make an order continuing tbe injunction in force pending the appeal, as he would not try the law case, nor permit it to be tried, during the pendency on appeal of the equity case which had been brought to enjoin further proceedings at law. It is strenuously urged that this testimony as to what occurred between the trial judge and counsel for the respective parties to the equity suit, who were also attorneys for the respective parties to the law case, was incompetent and prejudicial. We think otherwise. One of the defenses made hv the sureties in the circuit court was that R. G. Atkinson and E. B. Houston, the principals in the injunction bond, were solvent on October o, 1891, when the injunction was dissolved, and remained solvent for some lime thereafter; that the plaintiffs below had failed to prosecute the action at: law with due diligence after the injunction had ceased to be a hindrance, and by such neglect had occasioned the damages complained of, or at least enhanced the damages. In view of this defense, it was competent for the plaintiffs to show that they had exercised due diligence, and no better evidence of that fact could haVe been offered than the testimony in question, which showed that their failure to obtain a judgment in the suit at law at an earlier day was due altogether to the action of the judge of the trial court, who had refused to proceed with the hearing of the case until the decree in the equity case had been approved on appeal. Moreover, we are of opinion that the trial judge properly exercised his discretion in refusing to proceed with the trial of the action at law until it was finally decided whether the case was one which ought to be litigated in tbe forum of ecraity rather than at law.
[526] The defendants below also contend that the plaintiffs did not use due diligence in making their defense to the equity case after an injunction was obtained against them, and certain instructions were asked and refused to the effect that, if the jury found that the plaintiffs had not used due diligence in that behalf, they might consider whether the loss which occurred during the period the suit was delayed was a damage such as was within the contemplation of the sureties when they signed the bond, and such as they ought to pay. We are satisfied, by an examination of the evidence upon that subject which was offered, that the trial court was justified in refusing these instructions. "The equity case was commenced in December, 1887. The complainants in that case took either the whole or a part of their testimony during thé year 1889, and the defendants, as it seems, took the deposition of one witness as late as February, 1893. The case was heard and taken under advisement some time between the latter date and the month of April, 1894. This is substantially all that the evidence offered by the defendants tended to show touching the charge that the plaintiffs unduly delayed the hearing of the equity case. There was no evidence that the complainants in that case, or, their sureties, ever asked that the defendants be compelled to close their testimony within any specified period, or that they demanded an earlier hearing of the case, and that such earlier hearing was prevented by any improper conduct on the part of the defendants. As it is always competent for the complainant in a chancery suit to expedite the hearing by compelling the opposite party to close his proofs within a reasonable period, and submit to a trial, we must presume, in the absence of any showing that the complainants in the equity case, or their sureties, ever made an effort to speed the cause, that the case was not tried at an earlier date because both parties were willing that the hearing should be postponed. The testimony which was offered had no greater tendency to show that the defendants in the injunction suit had not used due diligence in defending it than it had to show that' the plaintiffs had not used due diligence in prosecuting it. For these reasons we think that the trial court would have erred had it given instructions such as it was asked to give, which practically left the jury at liberty to find that the sureties had not contemplated that the injunction would continue in "force for such a long period of time, and therefore that they were not liable for the damages which it had occasioned.
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THAYER, Circuit Judge,
after stating the case as above, delivered the opinion of the court.
It is contended, in the first place, that the trial court erred in permitting the plaintiffs below, who are the defendants in error here, to [525] introduce the following record testimony: First, the mandate of this court in the equity case in which the injunction bond had been given; second, the judgment rendered against R. it. Atkinson and E. B. Houston, on May 9, 1896, for $11,817.79; and, third, the execution, with (he marshal’s return indorsed thereon, which was issued upon said judgment. We think, however, that this contention is untenable, since the testimony in question established certain relevant facts which were alleged in the complaint and were not specifically denied by Hie answer. It may be that it was unnecessary to have read the records in evidence, because the facts which they tended to prove were, in effect, admitted by the pleadings; but if the plaintiffs saw fit to establish the allegations of their complaint with greater certainty, by introducing the records, the defendants cannot be heard to complain. They were not prejudiced by the proof of facts which they had admitted.
The defendants further urge that error was committed by the trial court in permitting the plaintiffs to prove the following facts by parol testimony, namely: That, immediately after the decree dismissing the bill and dissolving the injunclion had been entered, an interview took place between the judge of the trial court and counsel for the complainants and the defendants in said suit, and that in the course of said interview the judge of the trial court stated to counsel, In substance, that if an appeal was taken from said decree, as was- then contemplated by the complainants in that case, it would not be necessary to make an order continuing tbe injunction in force pending the appeal, as he would not try the law case, nor permit it to be tried, during the pendency on appeal of the equity case which had been brought to enjoin further proceedings at law. It is strenuously urged that this testimony as to what occurred between the trial judge and counsel for the respective parties to the equity suit, who were also attorneys for the respective parties to the law case, was incompetent and prejudicial. We think otherwise. One of the defenses made hv the sureties in the circuit court was that R. G. Atkinson and E. B. Houston, the principals in the injunction bond, were solvent on October o, 1891, when the injunction was dissolved, and remained solvent for some lime thereafter; that the plaintiffs below had failed to prosecute the action at: law with due diligence after the injunction had ceased to be a hindrance, and by such neglect had occasioned the damages complained of, or at least enhanced the damages. In view of this defense, it was competent for the plaintiffs to show that they had exercised due diligence, and no better evidence of that fact could haVe been offered than the testimony in question, which showed that their failure to obtain a judgment in the suit at law at an earlier day was due altogether to the action of the judge of the trial court, who had refused to proceed with the hearing of the case until the decree in the equity case had been approved on appeal. Moreover, we are of opinion that the trial judge properly exercised his discretion in refusing to proceed with the trial of the action at law until it was finally decided whether the case was one which ought to be litigated in tbe forum of ecraity rather than at law.
[526] The defendants below also contend that the plaintiffs did not use due diligence in making their defense to the equity case after an injunction was obtained against them, and certain instructions were asked and refused to the effect that, if the jury found that the plaintiffs had not used due diligence in that behalf, they might consider whether the loss which occurred during the period the suit was delayed was a damage such as was within the contemplation of the sureties when they signed the bond, and such as they ought to pay. We are satisfied, by an examination of the evidence upon that subject which was offered, that the trial court was justified in refusing these instructions. "The equity case was commenced in December, 1887. The complainants in that case took either the whole or a part of their testimony during thé year 1889, and the defendants, as it seems, took the deposition of one witness as late as February, 1893. The case was heard and taken under advisement some time between the latter date and the month of April, 1894. This is substantially all that the evidence offered by the defendants tended to show touching the charge that the plaintiffs unduly delayed the hearing of the equity case. There was no evidence that the complainants in that case, or, their sureties, ever asked that the defendants be compelled to close their testimony within any specified period, or that they demanded an earlier hearing of the case, and that such earlier hearing was prevented by any improper conduct on the part of the defendants. As it is always competent for the complainant in a chancery suit to expedite the hearing by compelling the opposite party to close his proofs within a reasonable period, and submit to a trial, we must presume, in the absence of any showing that the complainants in the equity case, or their sureties, ever made an effort to speed the cause, that the case was not tried at an earlier date because both parties were willing that the hearing should be postponed. The testimony which was offered had no greater tendency to show that the defendants in the injunction suit had not used due diligence in defending it than it had to show that' the plaintiffs had not used due diligence in prosecuting it. For these reasons we think that the trial court would have erred had it given instructions such as it was asked to give, which practically left the jury at liberty to find that the sureties had not contemplated that the injunction would continue in "force for such a long period of time, and therefore that they were not liable for the damages which it had occasioned.
It is further contended by the sureties that the plaintiffs below were allowed to recover damages which were not occasioned by the injunction. In this behalf it is said, in substance, that in the complaint it was alleged that the principals in the bond became insolvent before the injunction was dissolved; that such averment was not true in point of fact; that the principals in the bond were solvent on October 5; 1894, when the injunction was dissolved, but subsequently became insolvent; and that by virtue of these facts the sureties are not responsible for the loss which the plaintiffs have sustained. It may be conceded that the sureties were liable only for such damages as were “sustained by reason of the injunction,” for that is the precise language of the bond. But it does not follow [527] therefrom that because Atkinson and Houston, the principals in the bond, failed, or that their failure became known subsequent to October 5, 1894, therefore the injunction did not occasion the damage of which the plaintiffs complain. When the restraining order was dissolved the plaintiffs had no judgment which they could enforce by execution against the property of the judgment debtors, even if they were then solvent, because tiny had not submitted to a judgment at law as a condition precedent to the granting of the injunction. On October 5, 1894, the suit at law remained in the same condition in which it stood when further proceedings in the case were arrested by the restraining order. Two years elapsed after the dissolution of the order before the plaintiffs, in the exercise of reasonable diligence,* could obtain a trial and judgment, and in the meantime the insolvency of the principals in the injunction bond had become apparent. If the suit at law had been allowed to run its course without interruption, it is highly probable, if not absolutely certain, that a judgment would have been recovered, and that it would have been paid long before October 5, 1891; but as the proceedings in that case were stayed by an act to which the sureties were a party, for a period of nearly seven years, and in the end the defendants in that case proved to he insolvent, it is not unreason able to attribute the loss which the plaintiffs have sustained to the existence of the injunction. It is ordinarily the province of a jury to determine what was the proximate cause of a loss or injury that has been sustained (Kailway Co. v. Kellogg, 94 U. S. 469, 474); and in the present instance we think they were at liberty to find, as they appear to have done, that the plaintiffs sustained the damage complained of as the direct result of the injunction, even if it was true, as the defendants below contended, that Atkinson and Houston were solvent when the restraining order was dissolved. The evidence was of such a nature as to well warrant the conclusion that the principals in the bond and their sureties, by suing out an injunction, had set on foot a proceeding that liad led naturally and inevitably to a loss of the greater part of the debt which the plaintiffs were attempting to collect.
In view of the testimony contained in the record, it can hardly be affirmed with certainty that the principals in the injunction bond were able to pay their debts in full on October 5, 1894; but, conceding such to have been the fact, it merely shows that the damages, if any, incident to the injunction, had not at that time become apparent. This concession differs materially from an admission that the damages complained of were not occasioned by the injunction. It frequently happens that the consequences of an act are not at once apparent, and that a li tigant on the day of trial is able to show that certain damages have been sustained as the proximate result of a wrongful or a negligent act, which could not have been proven if the trial had occurred at an earlier day; but in such cases no court has ever as yet intimated that the right of recovery was limited to such damages as became manifest immediately after the wrongful act was committed. On the contrary, the rule is that a plaintiff' is entitled to recover compensation for such damages as he can establish on the day of the trial, provided they were the proximate result of [528] the alleged wrongful or tortious act. Hayden v. Albee, 20 Minn. 159 (Gil. 143); Fort v. Railway Co., 2 Dill. 259, 268, Fed. Cas. No. 4,952; Hagan v. Riley, 13 Gray, 515, 516; Filer v. Railroad Co., 49 N. Y. 42; Suth. Dam. (2d Ed.) § 113, and cases there cited.
In the lower court the case was tried in substantial conformity with these views. Touching the question whether the injunction was the proximate cause of the damages that had been sustained, the, jury were instructed to the following effect: That it would not do for them to consider the financial status of Atkinson and Houston, and their ability to pay the plaintiffs’ claim, solely when the injunction was dissolved; that it was necessary to likewise consider the sum which was recoverable from them on the plaintiffs’ demand when the action at law was terminated, since it would be impossible to otherwise determine the amount of the plaintiffs’ loss; that the liability of the sureties for the loss occasioned by the injunction continued until a final judgment had been rendered; and that the sureties were not relieved from such liability because the court in which the action at law was pending had refused to try it until the equity case was heard and determined on appeal, since by signing the bond they assumed the responsibility for a delay in the prosecution of the suit at law which was thus occasioned. The jury were further charged, in substance, that before the plaintiffs could recover they must show by convincing evidence that they had been damaged, how such damage had accrued, and that if they had been allowed to proceed with their action at law in the usual way, and had not been stopped by the injunction, they could have obtained a judgment against Atkinson and Houston and collected it. In other words,'the jury were advised that, before they could render a judgment against the sureties, they must be satisfied that the damages sustained by the plaintiffs were the proximate result of the injunction. We perceive no material error in the manner in which this issue was submitted to the jury, when the instructions are read in the light of the testimony and are considered as a whole.
The point said to have been urged in the lower court, which is renewed here, namely, that, because the plaintiffs alleged in their complaint that Atkinson and Houston became insolvent prior to the dissolution of the injunction, they should have been held strictly to proof of that fact, and should not have been allowed to show that insolvency occurred afterwards, seems to us ■ to be without merit. The averment as to the time when the principals in the bond became insolvent was an averment which was not required to be proven precisely as laid. The action being on a bond in which the sureties had bound themselves to pay the damages which might be sustained by reason of the injunction, it was only necessary to allege that damages had been sustained as the proximate result of the injunction. Whether such damages were the result of a failure which occurred prior to the dissolution of the restraining order, or so shortly after-wards that the plaintiffs could not make their debt, was immaterial. In either, event, if they resulted from the injunction, the sureties were liable. The claim, therefore, that there was a material variance between the proof and the pleadings is untenable.
[529] Neither are we able to perceive any merit in the ifiotion made by the sureties, some time after the judgment against them was rendered, to credit that judgment with the sum of $4,975, which had been collected on execution from the principals in the bond. This collection was made before the trial, and was proven during the progress of the trial. The damages which were assessed by the jury represent the loss which the plaintiffs had sustained in excess of the sum already collected on execution from Atkinson and Houston, and did not exceed the amount of such loss. We can perceive no reason, therefore, why the credit claimed should have been allowed. The judgment of the circuit court is accordingly affirmed.