H. A. Llоyd sued the defendant Ernest Baker, doing a wholesale mercantile business under the name of Baker & Company, and the defendant Roy Flinchum, constable, to enjоin the levy of executions issued out of the justice court upon a stock of groceries and the sale of same. From a judgment in favor of the plaintiff, the dеfendants appeal.
In his petition, filed June 14, 1945, and the amendment thereto, the plaintiff alleged that he owned a stock of groceries located аt 418 East Main street in the city of Shawnee; that the defendant Baker & Company has obtained no judgment against him; that on June 13, 1945, Baker & Company caused an execution to issue out of the justice of the peace court, which was placed in the hands of Flinchum, as constable, and that Flinchum levied upon his stock of groceries, locked the doors of the store, and started to invoice the goods; that he was compelled to make a trip from his residence in Dallаs to Shawnee and to make a bond and employ an attorney; that the threatened acts are illegal and unless enjoined will work a great and irreparable injury to him, and that he has no adequate remedy at law. Plaintiff prayed that the defendants be permanently enjoined from levying upon or selling the stock of goods under the executions and that he have judgment for his attorney’s fees and expenses.
On June 16, 1945, a temporary injunction was issued as prayed.
At the trial, plaintiff introduced evidence to the effect that he was the sole owner of the stock of groceries; that he advanced all the money used in opеning and running the store; that before the store was opened, he advanced his brother $500 and about the time it was opened he gave him a check on a Dаllas bank for an additional $400 and that he later made a deposit for $200. His testimony was corroborated*by the introduction of the original check for $400 and the deposit slip for $200. The contract between H. A. Lloyd and J. E. Lloyd, dated March 15, 1945, reciting that H. A. Lloyd was the sole owner and that J. E. Lloyd was to operate the store on a percentage basis, was introduced in evidence. Both H. A. Lloyd and J. E. Lloyd testified that H. A. Lloyd was the sole owner of the business and that J. E. Lloyd was merely operating it for him. Plaintiff also introduced evidence to the effect that the judgments under which the executions were issued were rendered against J. E. Lloyd for merchandise furnished by Baker & Company to J. E. Lloyd while he was operating a grocery store known as Lloyd’s Grocery, located first on Kickapoo street and later on Highlаnd street, in the city of Shawnee, and that said store was closed about a year before the present suit was filed.
The defendants introduced evidence tо the effect that the account for the store was first opened in the bank under the name of J. E. Lloyd, was thereafter changed to Lloyd’s Food Market by J. E. Lloyd, and was later changed to Lloyd’s Food Market by H. A. Lloyd, but that at all times J. E. Lloyd, as manager of the business, had authority to issue checks upon the account. H. A. Lloyd applied for ration points but was
In the journal entry of judgment, the court made findings of fact to the effect that H. A. Lloyd was the owner of the stock of goods levied upon; that the judgments on which exеcutions were issued were not for merchandise sold to Lloyd’s Food Market but were for merchandise sold to J. E. Lloyd while he was operating Lloyd’s Grocery; that J. E. Llоyd was the manager of Lloyd’s Food Market, which was opened in March, 1945, and that to some extent the public understood that J. E. Lloyd was the owner; and that the threatened acts of levying upon and selling the stock of goods are illegal and would work an irreparable damage on the plaintiff and that plaintiff has no аdequate remedy at law.
The defendants’ argument may be disposed of under two propositions: (1) Did the petition state a cause of action for injunctivе relief? and (2) Is the judgment clearly against the weight of the evidence?
1. The defendants contend that the petition does not state facts sufficient to constitutе a cause of action for an injunction, for the reason that there is no allegation that the defendants were insolvent and there are no facts аlleged showing that the plaintiff has no adequate remedy at law, but that the statement in the petition that the plaintiff has no adequate remedy at law is a merе conclusion. They rely upon Bracken v. Stone,
The question, then, is whether, when the petition is liberally construed and is considered as having been amended tо conform to the proof, the plaintiff alleges facts showing that he has no plain, speedy and adequate remedy at law.
It is not always necessary thаt insolvency of the defendant be alleged or established as a condition precedent to a right for injunctive relief. Sunderland v. Bishop,
The general rule is that anticipated profits of an established commercial business are too remote and speculative
We conclude that the petition as considered amended to conform to the proof stated a cause of action for injunctive rеlief.
2.The next question is whether the judgment is clearly against the weight of the evidence. This being an action of equitable cognizance (43 C.J.S. 405), we will not reverse the judgment unless it is found to be clearly against the weight of the evidence. Wood v. Reed,
Judgment affirmed.