Cowles v. Carter, 39 N.C. 105, 4 Ired. Eq. 105 (1845)

Dec. 1845 · Supreme Court of North Carolina

39 N.C. 105, 4 Ired. Eq. 105

COWLES AND WILCOX vs. THOMAS W. CARTER.

A preliminary injunction, granted ex parte upon the bill alone, should be dissolved, upon an answer fully denying the facts, upon which the bill raises the plaintiff’s equity.

A general allegation in a bill, specifying no facts upon which it is founded, requires no answer ; or, at most, a general denial in the answer is sufficient to meet it.

Appeal from an interlocutory order of the Court of Equity of Surry County, at the Spring Term, 1845, his Honor Judge Bailey presiding, by which order, the injunction, which had been granted in the case, was directed to lie over until the final hearing.

The Bill charged that the defendant had been employed by them, as their clerk Snd agent in a certain store owned by them, in Surry County; that he had mismanaged their concerns wilfully and corruptly; that he had been guilty, in 'the course of his employment, of divers frauds upon them, which were specified; and, among other things, that he was in the habit, during such term of employment, of using his private funds in “ iniquitous, usurious” operations with their customers, whereby they sustained great damages ; and calling upon him to account, &c., and praying for an injunction against a judgment at law he had obtained against them for his wages.

The defendant, in his answer, denied specifically all the charges of fraud, corruption and mismanagement, alleged against him, and denied, also, generally, the charge of usurious operations to the prejudice of the plaintiffs.

An injunction having been granted upon the filing of the plaintiffs’ bill, on a motion to dissolve the same, the Court below directed the injunction to be continued to the hearing, from which order the defendant, by leave of the Court, appealed.

Badger, for the plaintiffs.

Boyden, for the defendant.

Ruffin, C. J.

The decree, continuing the injunction to the hearing, was erroneous, we think. The established rule of the Court is, that a preliminary injunction, granted ex parte upon the bill alone, is to be dissolved upon an answer, fully denying the facts upon which the bill raises the plaintiffs’ equity. In the present case, the answer could not be more direct, unequivocal, full, and, apparently, founded on probable truth, than it is.. It is nearly incredible, that the defendant could have been carrying on dealings on his own account, of the character imputed to him, for so long a period, without the knowledge and, therefore, the presumed concurrence of the plaintiffs, who were residing in the immediate neighborhood, and who had a personal agency in some of the cases, in which joint securities were taken for debts due to the .plaintiffs and those due also to the defendant. At all events, the answer is positive, that the plaintiffs well knew of those transactions, and not only acquiesced, but they approved of them. The charge in the bill, that the plaintiffs lost a number of debts, which are mentioned, because their debtors became insolvent by reason of “ the outrageous usury,” which the defendant had practised on them, is of such a character, that it cannot be answered with any precision, nor be acted on by the Court. Pleaders ought to be aware that in judicial proceedings epithets avail nothing ; and that the Court requires facts to bo alleged and proved as tlie grounds of relief. The bill sets forth nothing, whereby it can be seen that the defendant perpetrated usury in a single instance ; and, therefore, even if the matter itself would entitle the plaintiffs to relief, if property stated, we do not require an answer to that part of the bill, it is to be remarked, however, that the defendant does answer it as far as he can; that is, by a denial in general terms, similar to those in which the allegation was made. When the allegations are precise, in respect to particular acts of negligence or unfaithfulness in respect to deeds of trust and the like, the answer meets the bill fully. And it states, that the debts, lost by the plaintiffs through the insolvency of customers, were not greater than must be expected in such extensive dealings ; on which, upon a capital of about $8000, the defendant in four years made for the plaintiffs and paid over to them, upwards of $8,000 clear profit, after returning the stock. And it further states, Avith respect to losses from persons, Avho Avere debtors to both the plaintiffs and the defendant, that the losses of the latter Avere fully equal to those of the plaintiffs, in proportion to their debts. The justice of the debt recovered at law by the defendant cannot be contested, and there is nothing in the transactions embraced in these pleadings, (according to the answer, at all events,) on Avhich the plaintiffs ought to be relieA’ed from any part of it. Therefore, the injunction ought to have been dissolved with costs in the Court of Equity. That will be accordingly certified: and the plaintiffs must pay the costs in this Court. •

Per Curiam.

Decree accordingly.