Opinion
No. 4566.
Argued April 2, 1957.
Decided June 20, 1957.
1. Where the form of procedure before the Superior Court was accepted by both parties without objection its propriety cannot be attacked before the Supreme Court.
2. In an action for specific performance of a contract to sell to the plaintiff certain school land and buildings as the highest bidder at a public auction conducted by the defendant city, the action of the Court in dismissing the defendant corporation, holder of the reversionary title to the property, as a party defendant was not improper where the latter's right and obligations were never raised or litigated.
3. The granting or refusal of a restraining order rests in the sound discretion of the Trial Court under the circumstances and facts of the particular case and in the absence of an abuse of discretion its action will be sustained.
PETITION, for temporary orders in conjunction with a bill in equity for specific performance of a contract by the city of Manchester to sell to the plaintiff the Spring Street school land and buildings, so-called, in said Manchester.
The city acquired this land by virtue of a deed from the Amoskeag Manufacturing Company to School District Number Two in Manchester on September 25, 1845. The deed contained the following condition in its habendum clause. "Provided, however, and this conveyance is made upon the express condition . . . [that] if said district or its successors shall ever alienate or dispose of the whole or any part of said lot or shall ever bargain, sell or assign the same to any person or persons, or shall ever occupy or suffer the same to be occupied for any other purpose than a site for a school house . . . this deed shall be null and void."
On October 19, 1955, its committee on lands and buildings duly authorized by the board of mayor and aldermen held a public auction for the purpose of selling to the highest qualified bidder the above premises under the following terms: "Sale subject to approval by the Finance Commission: Release of existing restrictions by Amoskeag Industries, Inc.: Release by Board of School Committee of property for future school purposes: Bid less than $50,000.00 not to be accepted or considered: $500.00 deposit at time of sale: Balance cash upon delivery of deed."
Plaintiff was declared the highest bidder on his final bid of $66,800, made the required deposit and received a memorandum of receipt stating that the sale was "to become absolute subject to release of certain restrictions in the deed and other conditions or terms as announced at the time of said sale."
This sale has never been submitted to the finance commission for approval. On May 9, 1955, the board of school committee had voted that it "go on record as willing to release the Spring Street School back to the City Government with the stipulation that the city provide suitable warehouse facilities for the School Department" and had so notified the board of mayor and aldermen. On May 17, 1956, the directors of Amoskeag Industries, Inc. voted "to notify the City Clerk that . . . [it] would execute a release of its rights in the premises for the sum of $18,000. and that this offer be held open for a period of thirty days from notice to the City," until 5 P. M. June 22.
On June 5, 1956, plaintiff made a demand on the city for delivery of a deed and tendered the balance due on the purchase price. On June 12 becoming informed that the city was proposing to reject Amoskeag's offer, plaintiff filed this action in which he sought an ex parte temporary order directing the board of mayor and aldermen of the city of Manchester to refrain from taking any action that would prevent it from performing its contract with the plaintiff, to take such immediate action as may be necessary to allow it to perform its contract with the plaintiff and for an order directing it to accept the offer of Amoskeag and requiring the latter to release to the city all existing restrictions contained in the original deed pursuant to the terms of its offer. The Court refused to issue an ex parte temporary order and set June 20 for a hearing thereon.
On June 12 the board of mayor and aldermen rejected Amoskeag's offer and denied plaintiff's request for delivery of a deed and directed the city clerk to return his deposit.
After hearing, the Court (Sullivan, J.) granted the motion of Amoskeag, appearing specially, that the petition be dismissed as to it, granted some of plaintiff's requests for findings and rulings and denied others and denied his prayer for a temporary restraining order, all subject to plaintiff's exceptions which were reserved and transferred.
Sheehan, Phinney, Bass, Green Bergevin (Mr. Bergevin orally), for the plaintiff.
McLane, Carleton, Graf, Greene Brown (Mr. Brown orally), specially for Amoskeag Industries, Inc.
J. Francis Roche, city solicitor (by brief and orally), for the other defendants.
At the opening of the hearing counsel for Amoskeag Industries stated that he was appearing specially and was not participating in the hearing which pertained to a prayer for temporary orders. Its counsel did not examine witnesses or offer evidence on its behalf and was excused and permitted to leave without objection from counsel for the other parties before the hearing was concluded. At the conclusion of the evidence during arguments of counsel for the plaintiff and for the city, the Court stated "We are hearing now the temporary restraining order; we are not hearing the merits." The parties did not object and are therefore bound by the proceedings as they were conducted. Kusky v. Laderbush, 96 N.H. 286; Rosenblum v. Company, 99 N.H. 267, 270.
Plaintiff's bill for specific performance did not raise any issue as to the validity of the rights in the premises involved asserted by Amoskeag Industries nor was this issue litigated between the parties interested. Amoskeag's offer to release, made without consideration, had already been rejected by the city and was to expire by its terms two days after the day of the hearing. Restatement, Contracts, s. 34. There was no evidence that Amoskeag had incurred any contractual obligation to either the plaintiff or the city in connection with this property. No rights or obligations of Amoskeag having been raised or litigated the Court's action dismissing it as a party was proper. Jones v. Herbert, 77 N.H. 282.
The granting or refusal of a restraining order rests in the sound discretion of the Trial Court under the circumstances and the facts of the particular case. Hatch v. Hillsgrove, 83 N.H. 91, 96; 43 C.J.S., Injunctions, s. 14, p. 420. Its action cannot be arbitrary or capricious but must be controlled by established principles of equity. 4 Pomeroy, Equity Jurisprudence (5th ed.) s. 1404. In the absence of a showing of an abuse of discretion by the Trial Court its action will not be disturbed. Perkins v. Associates, 100 N.H. 247; 5 C.J.S., Appeal Error, s. 1591, p. 485.
The plaintiff has failed to establish a clear title in the city especially in view of the claim of rights in Amoskeag which has not been litigated between the interested parties. It is conceded that the sale is subject to the approval of the finance commission for the city of Manchester. Laws 1921, c. 226, s. 6. There is no denial that the premises were under the control of the board of school committee until it relinquished it. RSA 199:4. The board voted to do so provided suitable warehouse facilities were provided for the school department. There was no evidence that this had been done. It was not clear from the evidence whether the city undertook to obtain a release from Amoskeag Industries if it could do so without cost or whether it agreed to obtain it regardless of its cost. In view of all of the above uncertainties surrounding the contract sought to be specifically enforced we cannot say that the Trial Court acted arbitrarily in denying plaintiff's prayer for temporary orders. 4 Pomeroy, Equity Jurisprudence, ss. 1405a, 1405b, pp. 1042-1048.
This being an interlocutory proceeding only and there having been no showing of abuse of discretion in the Court's denial of plaintiff's prayer for temporary orders, no useful purpose would be served in considering plaintiff's exceptions to the denial of certain of his requests for rulings and findings. Most of them pertain to issues which go to the merits of the controversy and which cannot be decided until all the evidence thereon has been presented by all the interested parties.
The order as to plaintiff's other exceptions is
Exceptions overruled.
WHEELER, J., took no part in the decision; the others concurred.