Joab Park's v. Spurgin, 38 N.C. 153, 3 Ired. Eq. 153 (1843)

Dec. 1843 · Supreme Court of North Carolina

38 N.C. 153, 3 Ired. Eq. 153

JOAB PARK’S vs. JOSEPH SPURGIN, ADMR. &c.

On a motion to dissolve ari injunction, every thing is to be presúnied against the defendant, in respect of any matter, to which he could answer and has not so' answered.-

A court of Equity will not support an injunction against an undoubted credit.- or, who has established his debt at law, merely upon the ground that there were other transactions between the parties, on which, possibly, there may be a sum of money coming to the patty obtaining the injunction.

A strong inference will be drawn against a plaintiff in an injunction till, from vagueness in its statements, and from suppressions on matters peculiarly within the plaintiff’s knowledge.

This was ¿in appeal from an interlocutory order, made in the Court of Equity of Randolph County at Fall Term, 1843, his honor Judge Manly presiding, dissolving the injunction which had been obtained in this case.

The bill states, that George Hoover i'n his life-time instituted four actions atlaw on bonds and accounts against the present plaintiff; that Hoover died pending the suits, and that Spurgin, as his administrator, revived them, and in February, 1843, obtained judgments ; in one of them, for $21; in another, for $199; in the third, for $270; and in the fourth, for $400.

The bill further states, that in 1837 Parks and Hoov'ef were partners in a contract for carrying the mail in coaches between Raleigh and Salisbury ; and that they purchased the original stock at $200 ; of which the plaintiff placed the greater, part in the hands of Hoover f that, besides, the' plaintiff purchased twelve or fifteen horses for' the line; bought harness, paid drivers and other expenses, and in person superintended the line that Hoover kept a tavern on: the route, which was a stage house, and that he received considerable sums of money from passengers for their fare, as shewn by way-bills: that Hoover was the sheriff of Randolph County and collected on execution a debt for $340, which one Love owed the plaintiff, and, by agreement between them,- was to apply it to the purposes of the stage line, out of which the plaintiff was to be reimbursed : that 'Parks and Hoover borrowed from one ot the Banks the sum of $2000, on their joint note, and, received, each, one half thereof; but that the plaintiff paid at least two thirds thereof out of his own funds, and was to have credit accordingly in their co-partnership accounts.

The bill then states, “ that in the course of the year 1838 the plaintiff took the entire stage line to himself; but the matters of said partnership have never been closed or settled ; and that said Hoover, on an account being taken of the partnership, will be largely indebted to the plaintiff, and to an amount equal to the four judgments recovered against him: That the estate of Hoover is insolvent, and that his administrator, notwithstanding, is endeavoring by execution to compel the plaintiff to pay the judgments, and at the same time refuses to come to any settlement of the partnership, although the sum due thereon to the plaintiff will be a total loss, unless he can have the benefit thereof by way of deduction from the judgments at law.” The prayer is for an account of the partnership, and that the plaintiff may be allowed the sum due him thereon as a credit to the judgments; and, in the mean while, for an injunction.

The answer states, thatthedefendanthas no personal knowledge or particular information of the dealings between his intestate and the plaintiff; but that he has been informed and beHeves, that they were at one time partners in transporting the mail, as stated in the bill — but upon what terms, or what sums were received or paid by either, and the true condition of the accounts between them, the defendant says, he knows nothing of his own knowledge; though, as to his information and belief, he states, that he has heard and has good reason to believe, that upon a fair settlement of the said partnership, the plaintiff would be largely indebted to Hoover.

. The answer then states, that, besides the suits in which the judgments, mentioned in the bill, were rendered, there were pending between the parties several others; among which was one brought by Parks against Hoover for one half of the debt of $2000, to the Bank, which Parks alleged he had. paid for Hoover, and two others by Parks for money which he alleged Hoover owed him on account sums received by the latter from passengers or for the proceeds of some of the property belonging to the stage line: That by an agreement between Parks and Spurgin all the suits had been referred to the arbitrament and award of three persons, who had heard the parties and their witnesses, and after a full investigation of all the matters in controversy and allowing all payments, set offs and deductions proved, made their award in favour of Hoover’s estate for the several sums, for which the judgments mentioned in the bill were taken, and also for $275 99 more, for which Hoover had not brought suit; and that they awarded, that nothing was due to the present plaintiff in any one of his actions, except the sums for which he had credit on the demands of Hoover against him. The answer states that be-' fore the arbitrators it was proved by several witnesses, that the plaintiff, Parks, had repeatedly declared, that the terms, upon which the partnership was dissolved, were, in substance, that Parks was to take all the property of every kind belonging to the line, receive all the moneys due, and pay all the debts, and that Hoover was to be discharged from all liability to Parks or any other person : which statements the defendant avers he believes. The answer also states, that' the plaintiff has never exhibited any account of the partnership, nor made any statement, from which it could be seen what he claimed thereon, or how he wished to haye the same settled : from which circumstances, and the proofs before and investigations by the arbitrators, the defendant says, that he verily believes that the award was not only honestly made, but that it determined justly and truly the rights of the parties.

Upon this answer and on the motion of the defendant the injunction, which was granted on the bill, was dissolved ; and from that order his Honor allowed the plaintiff to appeal.

Mendenhall for the plaintiff.

Winston for the defendant.

Ruffin, C. J.

As the answer is silent upon the charge of the insolvency of Hoover’s estate, we assume it as established, for the purpose of the motion to dissolve the injunction. For, in this stage of the cause, every thing is to be presumed against the defendant in respect of any matter, to which he could answer directly and has not so answered.

Though some of the suits at.law, brought by the present plaintiff, were for demands, which he states in the bill were items in the partnership accounts, yet there was no suit directly on the partnership dealings; and as only the suits pending between the parties were" referred, the award does not, therefore, conclude the parties on the point of a settlement of the partnership. The plaintiff would therefore be entitled to come into this court to have the benefit of the equitable set off of the sum due him. on the partnership, if any : and, especially, in the case, which we here take for granted, of the insolvency of the plaintiff at law. But we are not satisfied, that the plaintiff is entitled to any such set off. ft is not sufficient, that he should shew that there have been transactions between him and the other party, on which, possibly, a sum of money may be coming to him. Upon a bare possibility of that sort the Court ought not to tie up an undoubted creditor, who has established his debt at law, from reaping the benefit of his recovery. The present plaintiff says, that there was a certain partnership between himself and the defendant’s intestate, which was dissolved in 1838, but has never been settled, up to 1843 : and upon which, if settled, a large balance will be due him, the plaintiff. This result the defendant, who is an administrator, cannot deny positively, because he says he has no knowledge of his own upon the subject. But he denies it as far as an honest man can deny it: which is upon his information and belief. And he states the sources and particulars of his information, so that it may appear whether his belief, deduced therefrom, be fair and reasonably entertained. The answer does not aver, that the partners actually came to an account and that a balance was found due to Hoover: but it states, that, in the course of a judicial investigation,'credible witnesses proved, that the plaintiff himself said that they had dissolved upon terms, which, ot themselves, imported that owed nothing on that transaction. The fair meaning of the statement is, that Hoover simply retired from the firm, giving up any thing be may have advanced, and leaving Parks to pay for all the property and to have it. And the answer further states, that, if such settlement had not really been made and an account were taken, the defendant from information believes the balance would be found due to Hoover, and not to the plaintiff, We do not see, that more could have been expected in an administrator’s answer; and it strikes us as making a candid statement upon the material points, and, as fully as it could, deuying any sum to be due to the plaintiff, and as entitled to more credit in that respect, than if the denial had been less scrupulous and more peremptory. But' the answer does not constitute the entire case against the plaintiff. Much more is to be inferred from the vagueness of the statements of the bill, and from its suppressions on matters peculiarly within the plaintiff’s knowledge. It merely states a partnership to transport the mail : but as to the terms, the capital and how much each was to advance, or what personal services to render, or how share the profits, there is not a word in the biil. Then it states, that the next year after the business began, the plaintiff took all the partnership effects to himself: but at what price, when or how payable, or upon what other terms is wholly suppressed. How are the accounts of such a partnership to be taken 7 There is nothing to begin with : though the plaintiff, as the surviving partner, is the person best, and, perhaps, alone capable of furnishing the requisite data for the action of the court. Besides all that, the bill does not even undertake to account, why, when there was so much litigation between the plaintiff and Hoover, in his life time, the plaintiff did not then file his bill for a settlement of the partnership, if it had not been settled, or why he did not propose to the defendant to include it in the reference, if he thought he could make it appear that any thing was coming to him thereon to cover the recovery that would be made against him on other demands, We find, indeed, that the had brought some of those actions at law for demands, which the bill now states to have been partnership transactions. Upon the whole case we must say, that it wears the aspect of a suit, not to get an account, but to get an injunction for the time being ; and, therefore, that there is no error in the decree. This will be accordingly certified to the conrt below.

The plaintiff must pay the costs in this court.

Per Curiam, Ordered accordingly.