121 Ill. App. 508 | Ill. App. Ct. | 1905
delivered the opinion of the . court.
Appellant asks for a reversal'of the order granting the injunction upon the alleged grounds that the bill does not present a case entitling appellee to equitable relief; that even if the bill is sufficient yet on the showing made he was not entitled to a temporary injunction and that in any event the injunction should not have been issued without notice. We are unable to discover from appellant’s argument wherein the bill fails to present a case calling for relief in equity. The contention is that the absence of the sign “To Rent” might not prevent appellee from procuring a tenant/ that there were other means of notifying the public that the place was for rent, that the only damage appellee could possibly sustain would be that he might not obtain a tenant for a term commencing May 1, 1905, but from aught that appears, his ability to procure one for a period commencing some time after May 1st would not be impaired. It is scarcely necessary to say that we are able to find no force in such contentions.
It is argued that appellee has a complete remedy at law in an action for damages, since it does not appear that such a judgment could not be collected. But the exercise of the preventive jurisdiction of courts of equity in cases of violation of negative or restrictive covenants annexed to leases is sustained by abundant authority, and is based “in part upon the necessity of preventing a constantly recurring grievance resulting from the continuous breach of the covenant which can not he adequately compensated by an action for damages.” High on Injns. 3rd ed. sec. 436. In Consolidated Coal Company v. Schmisseur, 135 Ill., 371-378, it is said that courts will interpose by injunction and indirectly enforce specific performance of negative covenants in contracts or leases even though their breach may occasion no substantial injury or though damages, if any, may be recoverable at law. See also United States Trust Co. v. O’Brien, 18 N. Y. Supp., 798-800, where it is said that such a covenant as that here in question could be more effectually enforced at the time with perfect and complete justice in equity, than afterward by the uncertain character of proof available in an action at law for compensatory damages.
It is assigned as error that the injunction issued without notice to appellant. The bill is accompanied by an affidavit stating that complainant’s rights will be unduly prejudiced if the injunction is not issued immediately and without notice. The issue of an injunction without notice is forbidden by the statute “unless it shall appear from the bill or affidavit accompanying the same that the rights of the complainant will be unduly prejudiced” otherwise (R. S. chap. 39, sec. 3). The affidavit is positive in its averments, not on information and belief, and is we think sufficiently supported hy the facts stated in the bill and the showing that appellant was actually proceeding to do the thing complained of. Parish v. Vance, 110 Ill. App. 50. The bill shows that appellee was entitled under the covenants of the lease to maintain a sign or notice on the premises showing that they were for rent, that appellant had twice removed ■or torn down such notice and refused to allow such notice to he again put up on the premises. There remained only about a month before the first of Hay in which to secure a tenant, and it was evident that if delay were had appellee might be unduly prejudiced by inability to at once notify the public passing by, that the premises were for rent. Appellant’s conduct in the matter as stated in the bill warranted the apprehension that if notified of the application for injunction he would delay the proceeding so far as lay in his power. Upon the whole we are of opinion that the issue of the writ without notice was justified by the facts of the particular case.
The order complained of must be affirmed.
Affirmed.
