Opinion
(August Term, 1854.)
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 the Court of Equity of YANCEY.
Gaither, for plaintiff.
Neal, for defendants.
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 she might be entitled, as the widow of Captain Richard Dowell, for military services in the war of the Revolution, at the sum of $1,400, and having adjusted and satisfied $235 of the amount agreed to be paid, executed his note to defendant Johnson and Mary Dowell for $1,165. 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 Dowell's pension right was against the policy of the law and void, it was agreed that the contract should be rescinded.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 canceling the contract between them, there was an outstanding note payable to defendant Johnson for $300, 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 him by the terms of this rescission, but that as defendant Johnson did not have (318) 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 rescission 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 Woodfin for three 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 26 May, 1852." Signed by the defendant Johnson.
He states this obligation was antedated 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, (319) of said Court, before Dick, J., 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.
We have no hesitation in saying that the order 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 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 Yancey, the plaintiff asked him for the note, when he said it was, be believed, in his trunk in Wilkes." To this allegation the defendant Johnson answers that neither at the time of the rescission 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 return the said note. But, upon the contrary, the defendant avers that upon the rescission he expressly told the plaintiff that he had sold the $300 note to his co-defendant Prather for a full and valuable consideration, and therefore he executed in lieu thereof his own obligation to the (320) complainant 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 26 May, 1852." The answer states that this obligation was antedated for the purpose of making it bear interest from the same time with the $300 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 or 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 sititng [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. For this reason alone, then, without adverting to any other, we affirm the order at the costs of the plaintiff.
PER CURIAM. Affirmed with costs.
(321)