Opinion
02-04-1901
GIBBS v. WARD.
Elijah S. Cowles, for the motion. D. J. Pancoast, opposed.
Suit by William W. Gibbs against John F. Ward to enjoin the trial of an action at law. On motion to dissolve injunction. Injunction modified.
Elijah S. Cowles, for the motion.
D. J. Pancoast, opposed.
EMERY, V. C. I reach the following con elusions on this motion:
1. The present motion must be disposed of as if made at the time when the motion to dissolve was submitted to the late chancellor.
2. Defendant having filed an answer, to which no exception was taken, the answer must be taken to be a sufficient discovery for the purposes of the bill and of this motion.
3. Complainant, having obtained an injunction ex parte, was obliged, after the filing of a sufficient answer, to prosecute his injunction suit with diligence by filing a replication and proceeding to proofs. Having done neither, defendant was entitled to move to dissolve the injunction, and was not deprived of the right to this motion by reason of any previous acquiescence in the injunction order, pending the settlement of the sufficiency of the answer.
4. So far as discovery was necessary or material to the complainant's defense in the action at law, it must be taken to have been made by an answer which has been accepted by the complainant, and the continuance of the injunction against trial of the suit at law-must therefore depend upon the complainant's right, after discovery, to retain the bill for relief, and enjoin the suit at law, because of the existence of defenses to the action not admissible at law.
5. The circumstances set up in the bill as grounds of equitable relief are not admitted by the complainant in his bill to be inadmissible as legal defenses to the action. On the contrary, this question is expressly reserved in the bill by a statement that it is doubtful. According to my present view, and on the consideration which I have been able to give to the case, these defenses, if admissible at all, are equally admissible at law and in equity. If they are so admissible at law, the suit should be disposed of by the court of law as the tribunal which first obtained jurisdiction, and, if admitted, no interference by a courtof equity is necessary. If it should be held that they are not admissible at law, complainant may then, by supplemental bill or otherwise, as he may be advised, present the question whether there are equitable grounds for relief against the verdict, if one should be obtained. This is the usual course where a complainant is not willing to admit legal liability, and there are legal questions to be decided. 1 Kerr, Inj. 20. Vice Chancellor Van Fleet, in one of the preliminary applications in the case, seemed to be of opinion that the general restraining order obtained by a third person, restraining complainants from delivering or transferring by the defendants any of the bonds of the company (an order which would include the bonds covered by the complainant's contract with defendant), presented only an equitable defense. The question, however, was not intended to be decided by him, nor was a decision necessary. The question is involved and distinctly raised on this motion as to the effect on the complainant's obligation, under his contract, of this injunction or restraining order, obtained by a third person in a suit against complainant. Defendant does not appear to have been a party to the cross bill or proceedings upon which the restraining order was obtained. The question whether the nonperformance of a contract which results from an injunction or restraining order, obtained by a third person, excuses the performance, is, as it now strikes me, a question which must be decided upon the application of the same principles in a court of law and in a court of equity, and does not, of itself, involve any application of equitable, as distinct from legal, principles. In either court, as it now strikes me, the question is whether the performance of complainant's contract was prevented by an act of the law, or, if the injunction be not held to be an act of the law, then whether it was an act with which the defendant is chargeable or by which he is bound. This question will be answered by the application of the same principles in both courts. No authorities upon either side of this question, as to the sufficiency of the defense in either court, have been presented by counsel, and no authorities which I have found, in the short time which I have been able to give to the case, seem to lead to the conclusion that in respect to a question of this character, relating not to forfeitures, but to the relief from performance of contracts, a court of equity will dispose of it on principles different from those which would be applied in a court of law. The defendant, therefore, should be allowed to proceed with the trial of his action at law to verdict and judgment (if the verdict be in his favor), reserving, however, to the complainant, the right to apply upon supplemental bill, after verdict and final judgment, for an injunction, in case the defenses to the action set up in the bill are overruled at law. Final decision upon the question whether the defenses overruled at law are equitable grounds of relief will be reserved until the question is so raised. An order modifying the injunction, so as to allow the action at law to proceed to final judgment, will be advised.