Fargo & Co. v. Ames

45 Iowa 494 | Iowa | 1877

Seevers, J.

The existence of the partnership is expressly averred in the petition, and admitted in the answer. The petition does not state that the firm had been dissolved, or that Lawson had sold his interest therein to D. B. Ames. All that is said on this subject is, that the firm continued to do business until about January 7th, 1876. The answer then alleges that Lawson on that day sold his interest in the partnership, and delivered possession, of the property to D. B. Ames. This averment is not.responsive to the petition but constitutes new matter in avoidance of the allegations thereof. If the defendants, by motion for a more specific statement, had, under the order of the court, compelled the plaintiffs to state whether or not there had been a dissolution, sale and delivery of the goods to Ames, the legal effect of the averment in the answer would have been materially different.

1. ikjvnctogfmatteif" m avoidance, We regard the established rule to be, where the equity of the petition is admitted or riot denied, and the answer sets up new matter in avoidance, or contains matter which am°nnts to a defense, such answer is not equivalent to a denial of the plaintiff’s equities, and that the injunction should not be dissolved, but continued to the hearing. High on Injunctions, Sec. 895; Shricker v. Field, 9 Iowa, 366.

If the firm had never been dissolved, arid the business at the time possession was taken of the property under the mortgage was being conducted by the partnership, we think the plaintiffs’ right to an injunction for the protection of their interests would be clear.

It, therefore, follows that, by reason of the new matter in the answer, the injunction should not have been dissolved.

2. —:--7: $oubt.onsof It is a matter of doubt whether the preponderance of the evidence is in favor of the defendants, as to the fact whether there had been a dissolution and sale of the property by Lawson to D. B. Ames. The learned judge before whom the cause was heard concedes that this question of fact “was' left in great doubt, and it would have been much more satisfactory had.the question been more clearly established.” In this view of the evidence we fully concur. Under such circumstances what is the rule? In High on Injunctions, Sec. 901, it is said, “Where it is apparent from the answer that there are still questions of doubt on which additional light is required, to satisfy the court before deciding the rights of the parties, a dissolution should not be granted, especially where the very purpose for which the relief was originally allowed was the prevention of irreparable injury.” In accord with- this rule the injunction should not have been dissolved.

Without doubt the rule, is, where fraud is the gravamen of the petition, or where it is apparent that by the dissolution the plaintiff will lose all benefit Which would otherwise accrue to him should he finally succeed in his cause, the court may in the exercise of a sound discretion continue the injunction to a hearing. High on Injunctions, Sec. 899; Stewart et al., v. Johnston & Co., 44 Iowa, 435.

We think it quite evident that the effect of the dissolution of the injunction in the present case would be to deprive the plaintiffs of any and all benefit, even should they succeed in making out a case requiring an accounting, and the rendition of a decree for the payment of the partnership creditors from the proceeds of the mortgaged property. In fact no possible object could be subserved by continuing the suit, for long before there could be a final decree the property will have been sold and appropriated to the payment of the mortgage debt. For the reasons stated the order dissolving the injunction must be ~d

Eeversed. ■