Central Ohio Co-op. Milk Producers, Inc. v. Rowland, CO-OPERATIVE

• Decision Date: 13 March 1972
• Docket Number: CO-OPERATIVE
• Parties: , 58 O.O.2d 421, 10 UCC Rep.Serv. 814 CENTRAL OHIOMILK PRODUCERS, INC., Appellant, v. ROWLAND et al., Appellees.
• Court: Ohio Court of Appeals

Page 236

29 Ohio App.2d 236

281 N.E.2d 42, 58 O.O.2d 421, 10 UCC Rep.Serv. 814

CENTRAL OHIO CO-OPERATIVE MILK PRODUCERS, INC., Appellant, v. ROWLAND et al., Appellees.

Court of Appeals of Ohio, Fourth District, Washington County.

March 13, 1972.

Syllabus by the Court

1. In an action for an injunction wherein the ultimate relief sought is the adjudication of plaintiff's and defendant's property rights in a contract, the granting of a temporary injunction is a final order and appealable. An injunction restraining the breach of a contract is a negative specific enforcement of that contract.

2. It is generally true that if a party who has a power of termination by notice fails to give the notice in the form and at the time required by his reservation, it is ineffective as a termination unless such requirements are waived by the parties.

3. Before a finding that the termination clause of a contract is unconscionable, the trial court must conduct an evidentiary hearing to determine whether that clause is in fact unconscionable in the light of its commercial setting, purpose and effect as required by R.C. § 1302.15(B).

Davidson, Heckler & Riggs, Marietta, for appellant.

Summers, Haupt & Theisen, Marietta, for appellee.

GRAY, Judge.

This cause is in this court on appeal from a judgment of the Common Pleas Court granting a preliminary injunction enjoining each of the defendants from consigning milk to anyone other than plaintiff. Plaintiff feeling aggrieved filed its notice of appeal and assigned the following errors:

'The orders of the Common Pleas Court of Washington County entered February 23, 1971, nunc pro tunc, as of 11:45 a. m. on February 22, 1971 should be reversed in toto and so much of the orders of the Common Pleas Court of Washington County entered March 2, 1971 as provide, 'd. That the provision with respect to notice of termination of the agreement is unconscionable as to the Defendants,' should be reversed because of error therein, to-wit:

'1. Said orders are contrary to law

'2. Said orders are against the manifest weight and without sufficiency of evidence and are an abuse of discretion.'

Defendants, feeling aggrieved, filed its notice of cross-appeal and assigned the following errors:

Assignment of Error No. 1: The granting of an injunction was against the manifest weight of the evidence and without sufficiency of evidence, and is contrary to law.

(A) In a court of equity, irreparable injury to plaintiff must be found before an injunction is properly granted.

(B) A showing of irreparable injury is not accomplished in a vacuum and the record shows more actual and potential damages to defendants than to plaintiff.

(C) Central Ohio Co-Op failed to sustain its burden of showing by clear and convincing proof a clear legal right to an injunction.

(D) In any event, the record clearly shows that Central Ohio Co-Op did not do equity and should not have been denied equity.'

Defendants filed a motion to dismiss the appeal of plaintiff as it was based upon a non-appealable order. We think that this motion is not well taken. The purpose of the temporary injunction was to compel defendants to honor the contract which they had entered into. An injunction restraining the breach of a contract is a negative specific enforcement of that contract. The jurisdiction of equity to grant such injunction is substantially coincident with its jurisdiction to compel specific performance. See Pomeroy, Equity Jurisprudence, Section 1341 (4th ed.). In an action for injunction wherein the ultimate relief sought is the adjudication of plaintiff's and defendant's property rights in a contract, the granting of a temporary injunction is a final order and appealable.

Plaintiff association was organized for the sole purpose of marketing milk produced by cows owned by its members, and performing such functions as are incidental thereto. From the very nature of things, it must have the milk or it cannot exist. It has no money with which to buy milk; hence, it cannot go on the open market and purchase milk...