Carlisle v. Smith

• Decision Date: 16 October 1912
• Docket Number: 28.
• Parties: CARLISLE v. SMITH et al.
• Court: U.S. District Court — Northern District of Georgia

200 F. 268

CARLISLE v. SMITH et al.

No. 28.

United States District Court, N.D. Georgia.

October 16, 1912

Anderson Felder, Rountree & Wilson, of Atlanta, Ga., for complainant.

Robert C. & Philip H. Alston, of Atlanta, Ga., for defendants.

NEWMAN District Judge.

This is an application for an injunction pendente lite. The case rests mainly upon the theory that there was a partnership between C. Elmore Smith, E. L. Ashley, and W. A. Carlisle the complainant. The proof submitted fails to sustain this theory. It fails to show, in my opinion, that a partnership existed between the three parties named, or what is termed by counsel 'a partnership adventure.' It would be necessary to show more than is here shown, it seems to me, to constitute a partnership, and the allegations of the bill on that subject are expressly denied in the answer, and by the affidavits of both Smith and Ashley, defendants in the case.

So far then, as the bill seeks an injunction pendente lite to restrain the defendants Smith and Ashley from disposing of stocks and bonds received by them from the Georgia Power Company, or the Georgia Railway & Power Company, for their interest in those corporations, on the ground that Carlisle, the complainant, was in partnership with them, or in a joint adventure with them, the same is not sustained by the evidence submitted on this hearing to the extent that it justifies the court in granting an injunction pendente lite, especially in view of the fact that there is no allegation of insolvency, but, on the contrary, the evidence submitted shows both defendants to be solvent, and one of them apparently a man of large means.

A prayer of the bill, however, seeks to recover on a quantum meruit, being for services claimed to have been rendered in connection with obtaining rights of way, water rights, and other services in connection with the reorganization and rehabilitation of the properties involved. As to this the complainant seems to make a stronger case on this hearing than he does with reference to the matter of the alleged partnership. No opinion is expressed, however, as to the merits of this or the other matters involved, further than is necessary to act upon and dispose of this application for an injunction pendente lite.

The complainant, Carlisle, has already received $100,000 of the stock of the Georgia Railway & Power Company, which, it is conceded by his counsel, must be credited upon any amount which he may hereafter recover. This, with the clearly established solvency of the defendants, would make it improper, in my opinion, to tie up the bonds and stocks in the...