faith." This instruction was refused by the court, and, we think, correctly, for the reason that there was no evidence in the case proving or tending to prove that the defendant had held out Foxton as his agent or as authorized by him to enter into any contract on his behalf. While the statement of the law as contained in this instruction may be correct, in the absence of evidence making it applicable to the case before the court, it would have been improper for the court to have given the instruction, as it might have tended to mislead the jury. The court was also requested to instruct the jury as follows: "You are further instructed that if you find from the evidence that the defendant, O. H. Hazel, agreed to pay this plaintiff the sum of $320, or $1 per acre, to procure for him a buyer for his premises, whether this agreement was made by Mr. Hazel, or by Mr. Foxton as his agent, your verdict should be for the plaintiff for the full amount which he seeks to recover, or $320." This was clearly erroneous, for the reason that it omitted an important qualification, namely, that Foxton was authorized by Mr. Hazel to enter into the contract. It will be noticed that the language is, "that if you find from the evidence, wheth

er this agreement was made by Mr. Hazel, or by Mr. Foxton as his agent," and that the omission of the above qualification rendered the instructions clearly erroneous. Several other instructions upon this subject were requested and refused, but as they all related to the question of ratification, and were fully covered by the court's instructions, we omit them, with the statement that the instructions fail to state a very important qualification as to ratification of an agency by a principal, namely, that his ratification was made with the full knowledge of all the facts connected with the transaction, as stated by this court in Shull v. New Birdsall Co., 15 S. D. 8, 86 N. W. 654.

Plaintiff's sixth, seventh, and eighth requested instructions were evidently intended to cover the theory of the plaintiff of an undisclosed principal. There being no evidence in the case upon which such instructions could be based, they were properly refused by the court.

It is further contended by the appellant that the court erred in its charge to the jury in several particulars, one of which was in reference to the authority of Foxton to bind the defendant. The court charged the jury that as a question of law Mr. Foxton had no such authority. We are unable to discover, after a careful examination of the evidence, that there was any evidence proving or tending to prove that Foxton was authorized by the defendant to enter into any contract with another agent, and, no such authority being shown by any evidence tending to prove such authority, it was proper for the court to declare to the jury the law applicable to such a case, namely, that the assumed agent

had no such authority to bind the defendant. It is contended by the appellant that this instruction took from the jury the question of ratification, but it will be noticed this instruction had no reference to the subject of ratification, but only as to the actual authority of the agent to bind the principal. But, as before stated, there was no evidence from which a jury would be authorized to draw the conclusion that Foxton either had actual authority to bind the defendant, or was held out by the defendant as having any ostensible authority to bind him. Hence, upon the question of actual and ostensible authority to bind the principal, the instruction of the court was clearly correct. Numerous exceptions were taken to the charge, but, without discussing them in detail, it must suffice to say the charge of the court was eminently fair, and stated the rules of law correctly applicable to this case, and that upon the subject of ratification they were very fully instructed by the court, and in such a manner as to leave to the jury entirely the question of whether or not the defendant had ever ratified the alleged agreement between Foxton and the plaintiff in regard to the payment of a commission upon the sale of the property. The verdict of the jury, therefore, upon this controverted question in favor of the defendant, is conclusive upon this court.

Finding no error in the record, the judgment of the court below is affirmed.

Under Code Civ. Proc. § 200, providing that damages occasioned by an improvident injunction may be ascertained by reference or otherwise, as the court shall direct, the assessment of damages in the action in which the injunction is issued is discretionary with the trial court, and is a remedy for the benefit of the defendant in that action, which he may waive, and sue on the injunction bond.

2. SAME-SUIT ON BOND-ESTOPPEL.

Failure of defendant in injunction to plead and offer evidence of the damages occasioned by the improvident issuance of the injunction, does not estop him from maintaining a suit for damages on the injunction bond.

3. SAME RES JUDICATA.

A decree dissolving a temporary injunction is not res judicata in a subsequent action against the surety on the injunction bond for the damages occasioned by the improvident issuance of the injunction, neither parties nor subject-matter being identical.

4. SAME-ELEMENTS OF DAMAGE.

Where an injunction restrained the owner of premises from leasing or transferring them or bringing an action to recover possession, the money which the owner was required to expend in repairing waste done or permitted during the pendency of the injunction, the rental value of the property for that time, and reasonable attorney's fees were proper elements of damages

FULLER, J. In an action by the defendant Fenner to perpetually restrain plaintiff from leasing, transferring, or bringing an action to recover possession of the Palace Hotel and fixtures, which the latter owned in the city of Hot Springs, a temporary injunction was granted, and afterward dissolved at the trial, where all the issues were determined in favor of the defendant McLennon, who thereupon instituted this action on the bond to recover damages sustained by the improvident injunction; but Fenner, who was not served with process, made no appearance, and this appeal is by the American Bonding & Trust Company from a judgment fixing its liability as surety at $825, and from an order overruling a motion for a new trial.

For a reversal of the judgment and order thus presented it is urged that the damages sustained by reason of the injunction must be assessed before an action on the bond is maintainable, and that the judgment in the former case of Fenner v. McLennon is res judicata. Apparently mindful of the fact that the principal may or may not be financially able to promptly respond in damages, and that his sureties on the bond must have their day in court, a considerate Legislature has left much to judicial discretion with reference to such contingencies by the enactment of section 200 of the Code of Civil Procedure, which relates to the point in view, and provides that "the damages may be ascertained by a reference, or otherwise, as the court shall direct." An examination of all accessible statutes, upon which many of the decisions relied upon by counsel for appellant are predicated, discloses the imperative requirement that the damages shall or must be assessed upon the dissolution of the injunction in the action instituted for its procurement, and we find no cases holding that such an action on the bond is not maintainable under a statute similar to the provision above quoted. Manifestly, the right to have the damages sustained by the improvident issuance of an injunction assessed in the action brought to procure the same is discretionary with the trial court, and a remedy which may be waived without prejudice to

an action upon the bond by the party enjoined and for whose benefit the statute was apparently intended. In construing an identical provision in Hayden v. Keith, 32 Minn. 277, 20 N. W. 195, it is held that such damages may be assessed in the same action or by suit upon the bond, and the court say: "The parties signing the bond contract with reference to the statute, which provides the manner in which the damages may be ascertained. They are therefore bound by it as a part of the contract. But we do not think that this remedy ought to be held exclusive, and, whatever may have been the chancery rule, we see no good reason why the parties may not waive this method of assessing the damages, and have the same ascertained directly in the suit upon the bond." Nor is there any merit in the contention that respondent is limited by the recovery of costs in the former action by reason of the fact that the damages herein recovered were alleged in his former answer by way of counterclaim, but no evidence thereunder was introduced, and which, according to the stipulation of the parties, was eliminated therefrom, as follows: ""The defendant now dismisses the cause of action alleged in the counterclaim in the eighth paragraph of the answer with reference to any damages.' Which withdrawal was allowed by the court, the same being the damages and the whole thereof claimed by the defendant in said former suit (McLennon plaintiff in this suit) on account of Fenner's wrongful withholding said property as set out in the eighth paragraph of said answer, being the damages covered by the bond in this action." Assuming, as a general proposition of law, that such damages existed, and are available as a counterclaim to Fenner's alleged cause of action, the failure to plead and offer proof thereof would not estop respondent from maintaining this suit on the bond for damages sustained by reason of the injunction. Shankle v. Whitley, 131 N. C. 168, 42 S. E. 574. As appellant was not a party to the action in equity for an injunction, instituted by Fenner, who has not been called upon to answer respondent's complaint in this action at law for damages, there is neither identity of persons nor subject-matter, and the decree dissolving the temporary injunction by which respondent herein was restrained from occupying his own premises is not res judicata. This conclusion is justified by the following authorities: Turner v. Williams (S. D.) 97 N. W. 842; Selbie v. Graham (S. D.) 100 N. W. 755; Cromwell v. County, 94 U. S. 351, 24 L. Ed. 195. It is said in Bouvier's Law Dictionary that: "In order to make a matter res judicata, there must be the concurrence of the four conditions following: (1) Identity in the thing sued for; (2) identity of the cause of action; (3) identity of the persons and parties to the action; (4) identity of the quality in the person for or against whom the claim is made."

The money which respondent was required to expend in repairing waste done or permitted by Fenner during his unwarranted occupancy of the premises, and the rental value of such property, together with reasonable attorney's fees, being clearly within the proximate consequences of the injunction, there is no merit in the contention that the true measure of damages was not employed, and the verdict for but little more than onehalf the amount named in the bond is amply sustained by competent evidence. In Nielson v. City of Albert Lea, 87 Minn. 285, 91 N. W. 1113, the court say: "In a suit upon a statutory injunction bond, where the bond is predicated upon a preliminary injunction issued in a cause the purpose of which was to enjoin defendants from prosecuting certain actions, counsel fees and the necessary expenses incurred in an unsuccessful effort to dissolve the injunction and in conducting the main action may be recovered upon final dissolution of the injunction." As the certificate of. the trial judge to the effect that an exception is deemed to be taken to each of his rulings without the formality of an exception is insufficient unless such exceptions are incorporated into the bill of exceptions, appellant, as a matter of legal right, was not entitled to a consideration of the foregoing questions, but, under the view taken of the case, respondent is not prejudiced by their determination.

From a careful study of the entire record, we are satisfied that no error occurred at the trial, and the judgment appealed from is affirmed.

GARDINER v. ROSS et al. SAME v. ROSS. (Supreme Court of South Dakota. July 6, 1905.)

1. CONTEMPT-FAILURE TO COMPLY WITH OBDER-DEFENSES.

Where a motion for an order adjudging defendant guilty of contempt for failure to comply with an order previously made in supplemental proceedings, requiring him to pay certain money to plaintiff's attorney, was denied without prejudice, defendant was entitled, on a subsequent motion for an order to show cause, why he should not be punished for contempt for the same reason to present a defense arising after the making of the order in the supplemental proceedings.

2. BANKRUPTCY EFFECT OF DISCHARGE SUPPLEMENTARY PROCEEDING RES JUDI

САТА.

Where, after the making of an order in supplemental proceedings, requiring the payment of a judgment, it was rendered void by a discharge of the judgment debtor in bankruptcy, he was entitled to move to set aside the order, and his liability was not res judicata by reason of the fact that the order in the supplemental proceedings was not appealed from.

3. SAME ORDER REQUIRING PAYMENT OF JUDGMENT.

Under Bankr. Act July 1, 1898, c. 541, § 67f, 30 Stat. 565 [U. S. Comp. St. 1901, p. 3450], providing that all levies, judgments, attachments, and other liens obtained within four

months prior to the filing of a petition in bankruptcy shall be deemed void, etc., an order issued in supplemental proceedings less than four months before the filing of the petition, and requiring the bankrupt to pay a certain judgment, is rendered void by the discharge.

4. SAME-SCOPE OF ACT-VOLUNTARY BANK

RUPTCY.

Bankr. Act July 1, 1898, c. 541, § 67f, 30 Stat. 565 [U. S. Comp. St. 1901, p. 3450], providing that all levies, judgments, attachments, or other liens obtained within four months prior to the filing of a petition in bankruptcy shall be void in case the party is adjudged a bankruptcy, applies to voluntary as well as involuntary bankruptcy.

Appeal from Circuit Court, Roberts County.

Action by Edward Gardiner against James Ross and another, and by the same plaintiff against James Ross. Plaintiff recovered judgment in both cases, and in supplementary proceedings an order was made requiring defendant to pay the judgments, and later defendant was adjudged guilty of contempt in failing to comply with this order. From an order denying a motion to vacate the order made in the supplementary proceedings, and from the order adjudging him guilty of contempt, defendant appeals. Reversed.

Howard Babcock and Thomas L. Bouch, for appellant. J. J. Batterton and A. J. Kinney, for respondent.

CORSON, P. J. This is an appeal by the defendant from two orders made by the circuit court of Roberts county bearing date of September 5 and October 27, 1903, in two cases which by stipulation are to be heard together upon abstract and brief in one case. As the proceedings were practically identical in the two cases, it will only be necessary to consider the proceedings and orders in one case. In February, 1900, the plaintiff recovered a judgment against the defendant James Ross and Alexander Ross for the sum of $514.11, and about the same time a judgment against James Ross individually for the sum of $812.45. Subsequently, on April 30, 1900, an order to show cause was issued against said James Ross requiring him to be examined on supplementary proceedings, and on May 10th the order was granted with the usual restraining clause, and upon the report of the referee on May 19, 1900, the court made the following order: "Ordered, that the defendant James Ross forthwith deliver and pay to J. J. Batterton, the plaintiff's attorney, a sufficient amount out of the sum of sixteen hundred dollars, in money, disclosed by said defendant, and now in his hands and under his control, and one share of one hundred dollars of the capital stock of the Sisseton State Bank, disclosed by said defendant, and now in his hands or under his control, or sufficient thereof to satisfy plaintiff's judgment herein and plaintiff's costs and disbursements of this proceeding. Dated at the city of Milbank, South Dakota, May 19, 1900." Said order was duly served

upon the appellant Ross on the same day, and duly filed in the office of the clerk of said court. Thereafter, on June 15th, the appellant, in answer to an order to show cause why he should not be punished for contempt for not paying over the money as directed in the order made on May 19, 1900, showed by affidavit that on the 26th day of May, 1900, a proceeding in bankruptcy was pending in the United States Court for the District of South Dakota against the defendant, and that upon the proceedings thereon he was adjudged a bankrupt, wherefore the appellant requested that all proceedings in the above-entitled action be stayed for a period of 12 months, and until the question of such discharge should be determined by the said bankruptcy court; and upon such hearing the circuit court made the following order: "Ordered, that the said defendant's motion to vacate said orders dated May 10th and May 19th, be, and the same is hereby, denied, and the said orders are hereby continued in full force and effect, and the plaintiff's motion to punish said defendant for contempt of court is hereby denied, without prejudice. Dated June 15, 1900." No further proceedings were had in the case until July 10, 1903, when, upon affidavits presented by the respondent, the court made an order to show cause why the appellant should not be punished for contempt for failure to pay over the money as directed by the order of May, 1900, and upon September 5, 1903, the court made the following recital and order: "And it appearing to the satisfaction of the court that none of the provisions of said order dated May 19, 1900, have ever been complied with by said defendant, and that he is able to so do, and that his failure and neglect to comply with the conditions thereof is a contempt of court, and that this is a proper case for the making of this order: Now, therefore, it is ordered, and the judgment of this court is, that said defendant James Ross be, and he hereby is, adjudged guilty of a contempt of this court for his failure and refusal to comply with the provisions of said order dated May 19, 1900; and it is further ordered that said defendant James Ross pay to plaintiff's attorneys within thirty days from the date hereof the sum of $734.13, being the amount of the principal and interest now due on said judgment, and the costs on said proceeding supplementary to execution, and all of which was ordered to be paid by said order dated May 19, 1900; and it is further ordered that in case of said defendant's failure or neglect to do or perform any of said acts within the time aforesaid that then the sheriff of Roberts county, South Dakota, shall forthwith arrest the said defendant James Ross, and confine him in the common jail of said county until such time as the provisions of said order of May 19, 1900, and the provisions of this order shall be fully complied with, and the clerk of this court shall issue his warrant of commitment to the sheriff of said county in accordance

with this order, and the said sheriff shall thereupon execute the same. Dated September 5, 1903." A similar order was made in the second case. On October 1, 1903, the defendant moved the court to vacate and set aside the judgment in favor of the plaintiff and against the defendants in the above-entitled action rendered on February 2, 1900, and for an order vacating and setting aside the order of said court made on May 10, 1900, and for an order vacating and setting aside the order of said court made on May 19, 1900, and for an order vacating and setting aside the order of the said court made on the 5th day of September, 1903, adjudging the defendant guilty of contempt of court for his failure and refusal to comply with the provisions of said order dated May 19, 1900, ordering the defendant to pay to plaintiff's attorneys the sum therein specified, and for an order vacating and setting aside and annulling all proceedings supplementary to the execution and enforcement of the judgment in the above-entitled action upon the ground, among others, that the judgment in the above-entitled action has been and is barred by the proceedings in bankruptcy in which he has been discharged as such bankrupt. This motion was denied upon a hearing on the 22d day of October, 1903. On October 27, 1903, the appellant perfected his appeal from the order dated September 5, 1903, and also an appeal from the order of October 22, 1903.

It will thus be seen that the judgments were rendered February 2, 1900, that the order requiring the defendant to pay over the moneys alleged to have been disclosed by him was made on May 19th, and that a motion that defendant be adjudged guilty of contempt of court in failing to pay over the said money was denied on June 15, 1900, and that the motion to set aside and vacate the former orders of May 10 and 19, 1900, was denied. No appeal was taken from either of these orders made in May and June of 1900. It further appears that the bankruptcy proceedings were instituted on May 26, 1900, and it is disclosed by the record that these proceedings culminated in an order discharging the bankrupt on the 4th day of June, 1902. It will thus be seen that more than a year prior to the order adjudging the defendant guilty of contempt of court made in September, 1903, the defendant had been released from liability upon the judgment. The discharge in bankruptcy was made a part of the defendant's answer to the order to show cause in September, 1903, and also used in evidence upon the motion of the defendant to vacate and set aside the proceedings of October 22, 1903.

The appellant seeks a reversal of the orders appealed from upon the grounds (1) of the insufficiency of the evidence to justify an order for contempt, and that the court had no authority to make such an order on a judgment obtained in an action on con

tract; (2) that the bankruptcy proceedings were a bar to proceedings supplementary to execution; (3) that the property ordered to be turned over was exempt from forced sale and execution. The respondent has interposed a preliminary objection to the hearing of this appeal on the ground that the orders made on May 19 and June 5, 1900, not being appealed from, are res judicata, and cannot be questioned in any subsequent proceeding, and that the motion of the appellant to vacate and set aside said order was properly denied on the ground that the said order had become res judicata, and could not be subsequently attacked after the expiration of 60 days from the date of the order; and the respondent further contends that the only question before the circuit court was as to whether or not the appellant had complied with the order so made on May 19 and June 5, 1900. But, as we have seen, the motion made in June, 1900, that the defendant be adjudged guilty of contempt for failure to comply with the order of May 19th, was denied without prejudice; and hence, when the order to show cause issued more than three years later why the defendant should not be adjudged guilty of contempt and punished therefor in failing to comply with the order of May 19th it was competent and proper for the defendant to present to the court any defense that he might have to such order to show cause arising subsequently to the making of the order of May 19th. As we have seen, subsequently to the making of the orders of May 19th and June 5th the defendant was released from all liability upon the judgment by his discharge in bankruptcy, and hence such defense was proper, and is subject to review on this appeal. And again, the judgment having become null and void as against the defendant by virtue of the bankruptcy proceedings subsequent to the making of the order of May 19th, it was competent and proper for the defendant to move to vacate and set aside such proceedings, and hence a review of that order of October 22, 1903, is proper on this appeal.

In the view we take of the case, it will only be necessary to consider and discuss the effect of the bankruptcy proceedings, and we therefore shall express no opinion upon either of the other two questions presented. Assuming, therefore, without deciding, that the order of May 19th was properly made upon the evidence then before the court, we are inclined to agree with the appellant that the subsequent proceedings in bankruptcy rendered null and void not only the judgment of February 2d, but also the order of the court made on May 19th, such order having been made within four months of the defendant's application to be discharged as a bankrupt. The defendant's discharge in bankruptcy is as follows: "Whereas, James Ross has been duly adjudged a bankrupt under the acts of Congress relat

ing to bankruptcy, and appears to have conformed to all the requirements of law in that behalf, it is therefore ordered by this court that said James Ross be discharged from all debts and claims which are made provable by said acts against his estate, and which existed on the 26th day of May, A. D. 1900, on which day, the petition for adjudication was filed by him, excepting such debts as are by law excepted from the operation of a discharge in bankruptcy. Witness the Honorable John E. Carland, Judge of said District Court, and the seal thereof, this 4th day of June, A. D. 1902. Oliver S. Pendar, Clerk." It is stated in the abstract, and not controverted by the respondent, that the judgments obtained against the defendant were in actions brought on contracts for the recovery of money only, and hence it affirmatively appears by the record that the exception mentioned in the order has no application to this case. Proceedings supplementary to execution necessarily fall when the judgment becomes invalid or void. Newell v. Dart, 28 Minn. 248, 9 N. W. 732; McAfee v. Reynolds, 130 Ind. 33, 28 N. E. 423, 18 L. R. A. 211, 30 Am. St. Rep. 194; Miller v. Melone, 11 Okl. 241, 67 Pac. 479. 56 L. R. A. 620; Bank v. Braithwaite, 7 N. D. 358, 75 N. W. 244, 66 Am. St. Rep. 653; In re Kletchka (D. C.) 92 Fed. 901.

Section 67f, Bankr. Act July 1, 1898, c. 541, 30 Stat. 565 [U. S. Comp. St. 1901, p. 3450], provides: "That all levies, judgments, attachments, or other liens, obtained through legal proceedings against the person who was insolvent, at any time within four months prior to the filing of the petition in bankruptcy against him, shall be deemed null and void in case he is adjudged a bankrupt and the property affected by levy, judgment, attachment, or other lien, shall be deemed wholly discharged and released from same." While this section of the act does not mention in terms proceedings supplementary to execution, they must be regarded as included within the spirit of the sec tion and within the intention of the lawmaking power, and such proceedings are clearly no more effective in obtaining a lien upon the bankrupt's property than would be an attachment proceedings or a chattel mortgage lien thereon, and it would seem to logically follow that when the defendant is released from the judgment, and the same is rendered null and void as against him, that any proceedings taken within four months prior to the application in bankruptcy would necessarily be rendered also null and void, for it certainly would be an anamoly in the law to permit a party to be adjudged guilty of contempt for failure to pay a judgment that had become by the action of courts null and void; and such seems to be the view of the courts in analogous cases heretofore cited.

It is contended by the respondent that the provisions of the bankruptcy act above re