276 F. 625 | D.C. Cir. | 1921
This case is here on special appeal granted from an order of the Supreme Court of the District of Columbia refusing an injunction pendente lite to restrain the sale of certain real estate under a deed of trust.
Appellant, plaintiff below, and defendant were partners engaged in the real estate business. As a condition of dissolution of the partnership, plaintiff purchased from defendant his one-half interest in. certain property known as “Shadyside,” for which he agreed to pay defendant $12,500, represented by notes secured by deed of trust on part of the property. Plaintiff'avers in his bill for accounting that the books of the company at the time of the dissolution showed as.sets aggregating $258,957.60, with but trifling outstanding obligations. It subsequently developed that the total assets in -cash, bills, and accounts receivable were less thqn $5,000, with debts outstanding far in excess of this amount.
Plaintiff in his bill charges that the condition of the business was unknown to him, but thát defendant had exclusive supervision and control of the books and was familiar with the actual financial condition of the company, and, by secreting and concealing the true situation, induced plaintiff to enter into the contract of separation under which he paid defendant $12,700 in cash and made a delivery to him of various promissory notes secured by deeds of trust, including those involved in this action. Prior knowledge of these conditions is not expressly denied by defendant.
Plaintiff, in order to secure the retention of the notes or the proceeds thereof to await, the result of the suit for an accounting, in his bill makes the following offer and tenders himself ready to comply therewith :
“The amount of che said note, principal and interest, should be held to await the outcome of the said accounting, whether so held in the hands of the plaintiff, receivers or trustees appointed by the court to hold the same, or in the registry of the court, or covered by an indemnifying or other bond according to the judgment and discretion of the court, or by depositing Liberty Bonds or other security in lieu thereof, or indeed by making payment in cash to the said defendant, without prejudice to the plaintiff’s rights, upon the delivery by the defendant to the plaintiff or to some disinterested third party or parties of adequate securely for the repaying to Ihe plaintiff of the moneys so advanced, and the plaintiff has offered to pursue any of the courses so suggested, all of which have been declined by the defendant.”
‘‘It is a general, though not universal, rule, repeatedly enforced in this district, that a preliminary injunction will not be granted on ex parte affidavits unless in a clear case. The rule admits of important exceptions. Those exceptions include, among others, cases in which the function of the preliminary injunction is merely to maintain the status quo until final decree, where comparatively great injury may result from the withholding, and comparatively little can flow from the granting, of such injunction. In such cases the court regards with just discrimination the balance of convenience and hardship, and, in the absence of a final determination of right, aims so to resolve for the time being whatever doubt may exist as to do the most good and the least harm.”
The decree is reversed with costs, and the cause is remanded with instructions to grant the injunction.
Reversed and remanded.