Davis v. Hart

• Decision Date: 13 May 1889
• Citation: 6 So. 318,66 Miss. 642
• Court: Mississippi Supreme Court
• Parties: NOAH L. DAVIS v. JUNIUS HART

6 So. 318

66 Miss. 642

NOAH L. DAVIS v. JUNIUS HART

Supreme Court of Mississippi

May 13, 1889

April 1889

FROM the chancery court of Lowndes county, HON. T. B. GRAHAM Chancellor.

This is an appeal from a decree dissolving an injunction. Appellant Davis, bought a piano from the appellee, Hart, in October 1888. The price was four hundred dollars, of which amount he paid cash, November 1, 1888, fifty-five dollars, and gave twenty-three notes for fifteen dollars each, one being made payable on the first of each succeeding month until all were settled. The notes bore eight per cent. interest from date and provided for the payment of exchange on New Orleans, and also for the payment of an attorney's fee "if collected by law." These notes not being paid as they fell due, Hart obtained judgment on two of them in a justice court, from which the defendant appealed to the circuit court. He brought suit in the justice court on the third note, when he was enjoined by the bill in this case. In his bill Davis alleged that the notes were not to bear interest, and that the stipulations for the payment of interest, exchange and an attorney's fee were fraudulently inserted in said notes by one J. S. Johnston, the agent of Hart; that they were presented for his signature when he had no time to examine them; that he signed them without reading and hurriedly to accommodate the agent, who was going away, and relied upon the statement of the agent that the notes were as agreed upon in the contract of purchase, whereas, with these stipulations, they varied from the contract, and in this way complainant was imposed upon. The bill prayed that the suits be enjoined, and that the defendant be enjoined from suing on the other notes, and that all the notes be reformed. The bill was sworn to by the complainant. The defendant answered under oath, denying all the allegations of fraud and imposition, and averring that the stipulations of the notes accorded with the agreement between the parties. The testimony of several witnesses was taken on behalf of complainant, and that of Johnston, the agent, on behalf of defendant. The bill was filed February 12, and the answer was filed February 28, 1889. On the 11th of April following, before the expiration of the five months allowed for taking testimony, the court sustained the motion of defendant to dissolve the injunction on bill, answer and proofs, and entered a decree of dissolution. The testimony on the part of complainant tended only remotely, if at all, to establish the allegations of the bill, while the agent of defendant testified positively in support of the averments of the answer. It was shown that the defendant, Hart, had no personal knowledge of the facts in making his answer, and that all the transactions were had with his agent, Johnston. The agent negotiated the sale of the piano with the complainant, Davis, and took the notes in question, no other persons being present. The testimony of the complainant was not taken.

On dissolution of the injunction the defendant sought to have the court enter a decree in his favor for the damages he had sustained by the wrongful suing out of the injunction, in accordance with the provisions of § 1919 of the code of 1880. This the court declined to do, because the proof of damages was insufficient, but provided in the decree that it should be "without prejudice as to defendant's right to sue for damages on the injunction bond."

From the decree of dissolution the complainant appealed.

Decree affirmed.

Harrison & Landrum, for appellant.

1. On motion to dissolve an injunction, the burden of proof is on the party making the motion. High on Inj., § 881. And on such motion the allegations of the sworn bill are to have the same effect as if the deposition of complainant had been taken and read as evidence. Ib., § 882.

2. The defendant can claim no benefit of his answer as evidence, because it is shown that he had no personal knowledge of the facts. An answer on information and belief is no answer at all, so far as the injunction is concerned. High on Inj., § 896. Defendant, having made a motion to dissolve on such an answer, admits the allegations of the bill.

But, aside from this, the only testimony for the defendant is that of Johnston, and it is not sufficient to meet the burden of proof and overthrow the equity of the sworn bill. This witness is contradicted in several material points by the witnesses for complainant, and he does not stand as a man above reproach.

3. The bill is filed to reform the written instruments, and, as auxiliary to this, for an injunction to restrain the suits on the notes, and it was error to dissolve the injunction in advance of a final hearing on the merits on full proof. Since the injunction is dissolved, if the complainant finally succeeds in reforming the notes, as he is likely to do, he will not enjoy the fruits of it, because of the prosecution of the suits in the meantime. Such is the legal paradox the case presents as it now stands.

We refer the court to the language of the opinion in Jones v. Brandon, 60 Miss. 560.

L. D. Landrum, for appellant, made an oral argument.

Z. P. Landrum, for appellee.

1. The injunction was properly dissolved. The complainant introduced no testimony on the hearing of the motion, save as to collateral matters having no bearing upon the question of dissolution or the merits of the cause.

2. It is a significant...