Berger & Yeiser v. Armstrong, 41 Iowa 447

Berger & Yeiser v. Armstrong

41 Iowa 447 | Iowa | 1875

Miller, Ch. J. —

The only question for our determination is whether the District Court erred in refusing to allow to plaintiff an injunction as prayed in their motion.

*450í practice' injunction. *449The Code (section 3386) provides that in cases of “breach *450of contract, or other injury, where tbe party injured, is enti^ecl to maintain,, .and has brought,'an . action by ordinary proceedings, he may, in the same cause, pray, and have a writ of injunction against the repetition, or continuance of suchbreach of contract, or other injury, or the committal of any breach of contract or injury of a like kind, arising out of the same contract, or relating to the same property or right.” * * *

pleading. Appellants insist that under this provision of the statute, and upon the facts shown in the petition and answer, they were entitled, as a matter of right, to an injunction. In this we think they are mistaken. Aside from the question whether the employment of defendant as a clerk in .a drug and grocery store constitutes a breach of the contract alleged in the petithe court below was warranted in refusing ^ wrjft 0f injunction, on the ground that the petition fails to show a continuance or repetition of the alleged breach of contract. It is not shown that the plaintiffs at the commencement of the proceedings, or at the time of moving for an-injunction, were themselves engaged in, or carrying on ,the drug business in the town of Toledo, nor does it state other facts showing that they had any longer a right to insist upon an observance of the contract on the part of the defendant. The petition does not, indeed, distinctly state that they ever did carry on the drug business in Toledo, and it is only to be. inferred that they did so from the averment that the defendant sold to plaintiffs his drug store in Toledo, Iowa, but this was several years before this action was brought, and it will not be inferred that they' have continued to so carry on said business, in the absence of any allegation of the fact. To entitle a party to an injunction, he must allege the facts upon which his right thereto rests. This the plaintiffs have failed to do. Without expressing any opinion as to the alleged breach of contract, we are clear that the motion for an injunction was properly overruled.

Affirmed.