Woodfin v. Johnston, 54 N.C. 317, 1 Jones Eq. 317 (1854)

Aug. 1854 · Supreme Court of North Carolina

54 N.C. 317, 1 Jones Eq. 317

JOHN B. WOODFIN against JAMES JOHNSTON AND JOHN PRATHER.

Where a bill for an injunction alleges that a note has been paid off, and agreed to be surrendered, and that it was nevertheless assigned to another, and it appears from the answer that an obligation containing the terms of the agreement, was in the plaintiff's possession, which was to stand in lieu of the note, if not surrendered,"and the bill does not set forth said obligation, nor offer to surrender it, the injunction will be dissolved.

Cause removed from fie court of Equity of Yancy county.

The plaintiff who was extensively engaged in procuring pensions from, the general government, for military services, had contracted with the defendant, James Johnson, as the agent of Mary Dowell, for one half of the pension to which o argil; entitled, as the widow of Captain Richard Dowell, for military services in the was of the revolution, at the sum of fourteen hundred dollars, and having adjusted and satisfied two hundred and thirty-five dollars.of the amount agreed to he paid, executed his note to defendant, Johnson, and Mary Dowell for eleven hundred and sixty-five dollars ($11G5). Upon a representation made to the obligees by the plaintiff, that he had received information that this purchase by him of half of Mrs. Dowell’s pension right was against the policy of the law, and void, it was agreed 'that the contract should be rescinded.

The plaintiff avers that in the adjustment of this business, and in cancelling the contract between them, there was an outstanding note payable to defendant, Johnson, for three hundred dollars, which had been given him for the unsettled balance of this consideration for the pension right, and which he says was to have been surrendered to Mm by the terms of this recision; but that as defendant, Johnson, did not have the note with him, it was agreed that he would bring or send it in a short time : that he afterwards made an excuse for not surrendering it, that he had left it behind him in his trunk in Wilkes county : that instead of surrendering the note, as he had agreed and promised that he would do, he assigned the same to one John Prather, with a full knowledge on the part of Prather, of the plaintiff's equity.

That suit has been brought by Prather on the note, and a judgment obtained by him, in his own name, as assignee and execution issued and about to be enforced. The prayer is for an injunction, and for general relief. -

' The answer of Johnson denies there was any agreement to surrender this note of $300, upon the.recisi on of the pension contract; that so far from that, he informed the plaintiff that he had parted with the interest in it to defendant, Prather, for a valid and full consideration : that he did not believe he could get it from Prather, but that he would do so if he could, and that in lieu of that note, which he had traded off, he gave the said Woodfin an obligation of which the following is a copy:

$300. Due John B. Woodfin three hundred dollars for value received of him, as witness my hand and seal. It is however understood that if James Johnson shall surrender to said Woodfin, a note of hand given to said Johnson by said Wood-fin, forthree hundred dollars, bearing equal date with this note, with a credit of five dollars thereon, which note said Johnson transferred to John Prather, that it is to discharge this note, this 26th day of Hay, 1852.” Signed by the defendant, Johnson. He states this obligation was ante dated to make it bear equal interest with the one traded to Prather. He says that not being able to get back the note in question, he assigned the same, in pursuance, and in virtue of his agreement with Prather, to whom he had already sold it and received his pay for the same.

Upon the coming in of this answer, at Spring term 1854, of said court, before Judge Dick, a motion was made to dissolve the injunction, and upon consideration, the injunction heretofore obtained, was ordered to be dissolved with costs, from which interlocutory order the plaintiff appealed to this court.

Gaither for plaintiff.

Weal for defendants.'

Battle J.

We have no hesitation in saying that the orde1' to dissolve the injunction, from which the appeal was taken, must be affirmed. Without considering whether there may not be other grounds of objection, to the injunction there is one, upon which it is manifest that it cannot stand. The plaintiff’s claim to equitable relief against Prather, cannot be sustained, unless upon the bill answer of the defendant, Johnson, it appears that he should be entitled to enjoin him, were he, the plaintiff, in the judgment at law. The bill alleges that when the contracts between the plaintiff and the defendant, Johnson, were all rescinded; “ Johnson said he had forgotten to bring the $300 (pension) note with him, but that he would bring or send it in a short time, and that in July when Johnson had removed part of his things to Yancy, the plaintiff asked him for the note, when he said it was, he believed, in his trunk in Wilkse.” To this allegation the defendant, ■Johnson, answers that neither at the time of the recission of of the contract, nor at any other time, did he tell the plaintiff’ “ that he had forgotten to bring the $300 note with him, or that it was behind in his trunk in Wilkes, nor did he, according to his best recollection, ever promise to x’eturn the said note. But upon the contrary, the defendant avers that upon the recission, he expressly told the plaintiff that he had sold the $300 not to his co-defendant, Prather, for a full and val-aable consideration, and therefore he executed in lieu thereof, his own. obligation to the complainants, for the same amount which the complainant accepted in full satisfaction of his own note, now the subject of complaint.” A copy of this allegation is set forth in the answer, and it provides as follows: “It is however, understood that if James Johnson shall surrender to said Woodfin a note of hand given to said Johnson, by said Woodfin, for three hundred dollars, bearing date with this note, with a credit of five dollars thereon, which note, ■ said Johnson transferred to John Prather: that is, to discharge this note, this 26th day of May, 1852.” The answer states that this obligation was ante-dated for the purpose of mating it bear interest from the same time with the ‡800 note in question.

This part of the defendant Johnson’s answer, is decidedly responsive to the above recited portion of the bill, and must upon this motion to dissolve, be taken as true. How, then can the injunction be supported without a surrender of this obligation, oí* at least an offer to surrender it upon the injunction being perpetuated. If the plaintiff were to bring suit upon the obligation, it may be that the court of equity would give relief against it, if it had enjoined collection of the other. But it is one of the main objects of a court of equity to prevent a multiplicity of suits, and we should, while sitting in equity, feel ourselves faithless to one of our highest duties, were we to decide one suit which paved a way for another, where we had the complete power to put an end to the whole litigation at once. Por this reason alone then, without adverting to any other, we affirm the order at the costs of the plaintiff. This opinion will be certified as the law directs.