Fullington v. Kyle Lumber Co.

• Decision Date: 13 January 1904
• Citation: 139 Ala. 242,35 So. 852
• Parties: FULLINGTON ET AL. v. KYLE LUMBER CO.
• Court: Alabama Supreme Court

35 So. 852

139 Ala. 242

FULLINGTON ET AL. v. KYLE LUMBER CO.

Supreme Court of Alabama

January 13, 1904

Appeal from City Court of Gadsden; John H. Disque, Judge.

Suit by the Kyle Lumber Company against W. F. Fullington and another. From a decree for complainant, defendants appeal. Reversed.

The bill in this case was filed on the 15th day of September 1902, by the appellee, the Kyle Lumber Company, a corporation, against the appellants, W. F. Fullington and Peter Wagnon. The following facts were averred in the bill W. F. Fullington was the owner of a leasehold estate in a certain sawmill site near Gadsden, upon which he owned and operated a sawmill up to April, 1902, when he removed said sawmill, and did not operate a mill upon said site up to the time of the filing of the bill. On or about April 1, 1902 Fullington proposed to the complainant company to take a one-half interest in said lease for a period of 10 years from the date of the proposition, and said to the complainant that, if he would assume one-half the burden of the lease, he (Fullington) would not surrender the lease to one Myrick from whom he had leased said premises, but that Fullington and complainant could hold the lease together, and keep any one from putting up a sawmill on said property, or otherwise interfering with said sawmill site; and Fullington further agreed that he would not interfere with said site nor operate a sawmill thereupon for a period of 10 years from April 1 1902. This proposition was accepted by the complainant company, and it and Fullington entered into an agreement as above set forth, and the complainant had paid the monthly rental for 1902, and for April, June, and July. Fullington paid the rental for May, and agreed to pay it for August and September. Complainant and Fullington were in joint possession of the sawmill site at the time of the filing of the bill, each paying one-half of the monthly rental. It was then averred in the bill that the defendants, Fullington and Peter Wagnon, were about to erect a sawmill upon said site and operate the same in direct violation of the agreement which Fullington had entered into with the complainant; that the only consideration moving to complainant to assume to pay one-half of the rental value for 12 months was the promise and agreement made by said Fullington that he would not keep or use said premises for sawmill purposes for a period of 12 months, nor allow any one else to do so, and that, unless said Fullington is required to carry out and perform his part of said contract, great injury and annoyance will result to complainant, and it will be without remedy to prevent such injury, and to prevent constantly recurring grievances resulting from a continuous violation of the contract, which injuries cannot be adequately compensated in damages. The prayer of the bill was that Fullington be required to carry out and...