Webster v. Debardelaben

41 So. 831 | Ala. | 1906

HARALSON, J.

The case is to be considered in two aspects. The first is, whether under the original bill, as filed by the complainant therein, A. M. Webster, the appellant here, against I)e Bardeleben and wife, the appellees, he was entitled to the relief he sought in the perpetuation of the preliminary injunction granted to him. The chancellor denied such relief.

When the allegations of a bill, “upon which its equity defends, are fully, directly and completely denied in the answer, and none appears by the case made, why the injunction should be retained,” it should be dissolved.— Brooks v. Diaz, 35 Ala. 601; Robertson v. Walker, 51 Ala. 487; Rice v. Tobias, 83 Ala. 351, 3 South. 670; 1 High on Injunctions, § 162, Id. §§ 1470, 142.

In this case, all the material averments of the bill axe denied with that positiveness and clearness required by this rule. In addition the affidavits introduced, as was held by the court below, abundantly fortified the denials of the answer.

There was a difference between the complainant and the defendants, in their construction of the contract between them, as to how the timbers cut by complainant were to be measured, the complainant, contending, that he was to pay two cents per cubic foot, measured or scaled after it was squared at the mill, while the contention of the defendant was, that he was to receive two cents per cubic foot measured as round timber. It must be admitted that there is some indefiniteness in the contract as to this matter. The chancellor held, that by a proper construction, the contention of the defendants was the proper one. The contract sets out, that complainant “agrees to purchase all of the pine and poplar timber that will square twenty (20) cubic feet in one stick, except as otherwise provided, and to cut and remove the same, between the 1st day of January, 1905, and the 1st day of January, 1910, and to pay the parties of the 1st part, the sum of two cents per cubic foot, for all the timber cut under the terms of this contract, the first payment to be made sixty days after the party of the second part, commences to cut said timber, and to pay for all the timber scaled up to that time at the mill,” and so to pay, at the end of each sixty days thereafter, for all timber which has been scaled.

It was further agreed, “that should either one of them violate any of the terms of the contract, then the same shall be null and void, and not binding on the other party.”

One of the purposes of the bill, as indicated in its prayer was and is-to obtain a judicial construction of the contract of lease from respondents to complainant. The prayer is, that upon final hearing of the cause, “your honor will construe the contract shown by Exhibit A to this bill, existing between the said De Bardeleben and tlie complainant, and enforce the rights of the complainant therein, and will direct the register to hold a reference and ascertain thereat, what sum is due by complainant to said De Bardeleben, and for an injunction restraining defendants, their agents and servants, from interfering with, in any manner, the conduct of complainant’s business until the further order of this court, by themselves, their agents and employes,” etc.

It thus fairly appears, that the purpose of the bill was two-fold, — the construction of the contract of lease and for the injunction on account of alleged interference by the De Bardelebens with complainant in the prosecution of his business, under his lease from them. If the object of the bill were only to have a judicial construction of a disputed stipulation in a lease, no element of trust being involved, it could not 'be maintained. — L. M. & M. Co. v. Hannon, 93 Ala. 87, 9 South. 539. But this object may be regarded incidental to the other purpose of the bill,— to procure the injunction referred to.

The defendants, besides the answer filed, also filed a ci'oss-bill, setting up additional facts relating to the same subject matter as, but not alleged, in the original bill, and prayed for affirmative relief in reference to it, and this, as we have repeatedly held presents a case of equitable cognizance, and the dismissal of the original bill does not dispose of the cross-bill. It becomes’ the duty of the chancellor, in such case, if he dismisses the original bill, to grant such relief under the cross-bill as would be proper, under its averments and proof, as if it were an original bill. — Wilkinson v. Roper, 74 Ala. 141; Abels v. P. & M. Insu. Co. 92 Ala. 386, 9 South. 423; Davis v. Cook 65 Ala. 623; Bedell v. N. E. M. & S. Co. 91 Ala. 326, 8 South. 494; Meyer v. C. L. Co. 133 Ala. 557, 21 South. 938.

Whether such relief can be granted under the cross-bill constitutes the second aspect of the case remaining to be considered.

It is averred in the cross-bill, that the complainant in the original bill, has cut and removed prior to the filing of his bill, a large lot of timber from said lands of the value of f600 and failed and refused to pay defendants therefor; that he has cut and disposed of timbers without giving defendants an opportunity of measuring the same, and without paying them therefor; that he has done this under the protection of the temporary injunction obtained in the cause, and has disposed of the same in every way and as fast as he could, without reporting the same to defendants, or giving them an opportunity to see to .the measurement thereof, .and without paying for the same; that complainant has gone over portions of said land and cut and carried away the most valuable trees, and left standing other and less valuable .ones which came within the terms of said contract, and that the cutting and disposing of such timbers at the contract price would swell the amount now due to defendants to more than 1,000; and in addition to this, complainant has so mixed and confused parts of timber cut by him from the lands described in said contract, that it Avould be impossible to separate the one from the other. It is further averred, that because of these violations of said contract, defendants elected to cancel and annul the same, and thereupon and before the bringing of this suit, they informed complainant of their said election, and notified him to stop the cutting of said, timbers, and to cease operations under said contract, but complainant paid no attention to them, and continued, to cut and remove said timbers, Avhereupon complainant filed this bill, and by the unfounded allegations therein procured the' said writ of injunction.

The defendants affirm their election to cancel and annul said contract because of the violations thereof by complainant, and ask that the same be canceled. It is averred, that complainant is insolvent, and does not own property aboAre his exemptions of value sufficient to compensate defendants for the damages they have already sustained and will sustain by reason of the cutting and carrying aAvav of said timber, which complainant Avill continue to do, unless restrained by law; that unless so restrained, defendants will suffer irreparable loss in that said lands will be denuded of their trees, and defendants will be Avithout adequate compensation or remedy therefor.

The prayer of the cross-hill is for an injunction against complainant to prevent his continuance of the alleged waste, for an accounting and ascertainment of the amount due defendants by complainant for the alleged damages he has inflicted on defendants and for general relief.

There can be no doubt but that the cross-bill presents a case for equitable relief by injunction. The defendant therein, — complainant in the original bill, — answered and denied the material averments thereof. The complainants in the cross-bill introduced many affidavits to sustain the allegations of their bill and the defendant introduced others. Such affidavits are admissible in cases of waste, and when irreparable injury might ensue.— Barnard v. Davis, 54 Ala. 565; Rice v. Tobias, 83 Ala. 351, 3 South. 670; Long v. Brown, 4 Ala. 631, 632; High on Injunctions, § 671.

After due consideration, the chancellor was of the opinion that the complainants in the cross-bill were entitled to temporary injunction against respondent therein, as prayed for, and so ordered, upon their filing an injunction bond in the sum of $750 payable to complainant and conditioned as prescribed. The appointmnet of a receiver was denied.

Upon consideration of the case as made by the bill and answer, and the cross-bill and answer thereto, and the affidavits introduced, we are unable to conclude that the chancellor erred in the decree rendered.

Affirmed.

. Weakley, O. J., and Dowdell and Denson, JJ., concur.