59 S.E. 1011 | N.C. | 1907
Judgment for defendant. Plaintiff appealed.
The facts sufficiently appear in the opinion. The plaintiff alleged in his complaint that the defendant agreed to sell him certain furniture in the Stoner Hotel, situated in Asheville, the price to be ascertained as soon as an inventory could be taken and the invoices examined, and that when this was done the defendant would assign to him an unexpired lease he then had of (383) said hotel and a new lease which the defendant would get from Stoner, the owner of the hotel, for the next year. On 10 June, 1907, the defendant gave the plaintiff a receipt for $1 "on account of the sale of the Stoner Hotel." Without setting out the evidence, it appears to us therefrom that the plaintiff failed to comply with his part of the contract and clearly abandoned the same, and that thereafter the defendant sold a one-third interest in the furniture to one J. L. Page for a valuable consideration, Page having no notice of the prior contract between the defendant and the plaintiff. The latter applied for an injunction to restrain the defendant from exercising any control over the premises and from conducting the business of a hotel thereon, and also prayed for a specific performance of the contract. The defendant and Page are now partners, engaged in conducting the hotel business in the Stoner building. The lease by Stoner to the defendant contained a stipulation that it should not be assigned or transferred without the written consent of Stoner, and he has never consented in writing to any assignment or transfer of the same, nor has the plaintiff ever applied to him for one. The motion, upon the pleadings and affidavits, was denied, and plaintiff appealed.
This Court, on appeal from an order refusing or continuing an injunction to the hearing, can review the findings of fact made by the court below.Jones v. Boyd,
Affirmed.
Cited: Faust v. Rohr,
(385)