Farmers Union Oil Co. of Epping v. Kilgore
| Citation | 299 N.W. 318,71 N.D. 199 |
| Decision Date | 09 August 1941 |
| Docket Number | No. 6760.,6760. |
| Parties | FARMERS UNION OIL CO. OF EPPING v. KILGORE. |
| Court | North Dakota Supreme Court |
OPINION TEXT STARTS HERE
On Petition For Rehearing.
Syllabus by the Court.
1. Injunction cannot be used for the purpose of dispossessing a party, entitled to the possession of property to which he holds legal title, and giving possession of said property to another, who has no title to the same or the right of possession.
2. A suit in equity for an injunction cannot be used to establish title and ownership in property.
Appeal from District Court, Williams County; A. J. Gronna, Judge.
Suit by the Farmers Union Oil Company of Epping against P. W. Kilgore to restrain the defendant from going on certain premises and from exercising any control over the premises and over structures thereon. From a judgment ousting defendant from possession and injunctional order issued thereunder, the defendant appeals.
Judgment and order reversed and action dismissed.
Walter O. Burk, of Williston, for plaintiff-respondent.
F. F. Wyckoff, of Stanley, for defendant-appellant.
This is an appeal from a judgment permanently restraining and enjoining the defendant from going upon certain premises within the village of Epping in Williams County, and from exercising any control over the same and over a warehouse, oil tanks, and other structures thereon.
Plaintiff, in its complaint, contends that on January 16, 1935, it purchased this property from the defendant, and at the same time employed the defendant as its manager, and that this contract of employment continued until March 24, 1939, when plaintiff discharged the defendant for violation of his contract of employment ( specific violations), served upon him notice of the termination of the employment; and that despite this, the defendant refuses to surrender possession of the premises, refuses to vacate, still continues to trespass upon the property, and will continue to do the same unless permanently restrained and enjoined. It further alleges that unless the defendant is ousted from the premises, he will continue there, that a judgment against him is uncollectable, and that plaintiff “has no plain, speedy or adequate remedy at law.”
The answer admits the sale of the property to the plaintiff, “but denies that under said contract the plaintiff was to have possession of said premises.”
The defendant alleges further that on February 7, 1939, the district court entered a judgment, ordering and decreeing that “upon the payment, by the plaintiff to the defendant of the balance of the purchase price remaining unpaid * * * the defendant should forthwith vacate said property, real and personal,” and “surrender to the plaintiff, custody of such books of accounts,” etc.; that the judgment has never been reversed or vacated; and if the defendant be restrained from keeping possession of the property, he will be deprived of his rights under the contract.
Plaintiff's right to the property is based upon a written contract for sale. The record shows that on or before January 16, 1935, the defendant owned “an Oil and Gas distribution station”, and had a leasehold interest in some railroad property. On that day the parties entered into this written contract, wherein the defendant is designated the first party, and the plaintiff is designated the second party.
There is no dispute as to the contents of this instrument. It is lengthy, and we do not set it forth in full, sufficient reference being made in this opinion to the determining features.
Plaintiff contends that this contract consists of two independent component parts, one dealing with the purchase of the property, the other with employment; that irrespective of the part dealing with the sale of the property, the plaintiff had the right for good cause to discharge the defendant; and having so discharged him, it was defendant's duty to vacate the premises; that he had ample remedy to enforce the contract of sale; and upon his failure to leave, it was entitled to an injunctional order directing him to leave and to cease interfering with the plaintiff in the conduct and management of the business.
The trial court found that the contract was divisible, that the plaintiff was justified in discharging the defendant; and entered judgment, requiring the defendant to vacate the premises and cease “exercising any control over any and all” of the property involved.
In the major portion of the brief, respondent discusses the right of an employer to discharge an employee for cause, and to an injunction preventing the employee from trespassing upon the property of the employer. But this is not the real issue here. There are certain important provisions in the contract which must be noted. The defendant was the owner of the personal property and the lessee of the real estate. He was selling this property to the plaintiff for $1,884, with interest at six per cent until paid; he was to use and operate the oil station for the second party until the note was paid, and for payment was to receive “one half cents per gallon upon all gasoline sold direct to consumers,” the amount to be credited monthly upon the purchase price, being the only payments which the plaintiff was required to make. It will be noted that this allowance of one-half cent was only on the gasoline sold direct to consumers. On sales made otherwise, or deliveries made otherwise, he received an additional commission on sales as wages and for the expenses he was required to incur under the contract, such as paying help, furnishing truck, etc., but nothing further on the purchase price.
The defendant was “to be liable for any shortage or shrinkage of gasoline and other fuels”, and was to run this Such shortage was to be deducted from the commissions due him.
The legal title was to remain in the defendant until the said note is fully paid; when the note is paid defendant is required to deliver a bill of sale and an assignment of the lease.
There is no allegation in the complaint showing plaintiff has invested anything in the property, made any repairs, or paid any taxes or any rent for the lease; nor does the complaint show what amount, if any, the plaintiff is entitled to as credit on the note. Until the plaintiff has paid its note, it is not entitled to possession of the property. It may be dissatisfied with the way the business was being conducted; but it has remedies for this.
An examination of the contract shows it to be one and indivisible. While the defendant was selling property to the plaintiff, it is specifically agreed between the parties that the legal title was to remain in the defendant, and defendant was to use and operate this property for plaintiff until the purchase price was paid; and that when the price was paid, the defendant was to execute and deliver to the plaintiff a bill of sale, and an assignment of the lease to the property which the defendant held from the Great Northern Railway.
Under the contract the plaintiff was not required to make payments on the note, except by means of the commission mentioned. This commission could not be earned by the defendant if he made no sales. The right of the defendant to remain on, use and operate the property was part of the consideration for the contract. The defendant was to pay his assistants and help at his own expense, and pay the costs of heating and lighting. Clearly, he was to remain in control until he was paid.
Defendant's position was more than that of an employee. He held title to the property, and was to hold the title until he was paid. The plaintiff seeks to deprive him of this right by injunctional order.
[1][2][3] We need not determine whether the plaintiff had good cause of complaint against the defendant because of its charges against him. It cannot by this method dispossess the plaintiff of his property in which he has an interest, and which is in his possession. It does not seek to rescind the contract, nor ask for a receiver so as to protect the interests of both parties.
Provisional injunctions are regulated by the code of civil procedure (section 7212, Comp.Laws), and under the provisions of section...
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Gillies v. Radke
...the plaintiffs. No question is raised as to the propriety of the form of action to secure the relief sought. See Farmers Union Oil Co. v. Kilgore, 71 N.D. 199, 299 N.W. 318. The respondents question the procedure by which this appeal is taken and assert that the appeal is only from part of ......
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Frandsen v. Mayer
...in the strip of land in themselves, and, therefore, they are not entitled to an injunction. This court, in Farmers Union Oil Co. of Epping v. Kilgore, 71 N.D. 199, 299 N.W. 318, 320, The rule is set forth in 32 C.J. 134 that 'an injunction will not issue, the effect of which will be to take......