Gubbins v. Delaney

Decision Date14 March 1917
Docket Number9,581
Citation115 N.E. 340,64 Ind.App. 65
CourtIndiana Appellate Court

From Delaware Circuit Court; William H. Eichhorn, Special Judge.

Action by John F. Gubbins against Cornelius Delaney and others. From a judgment for defendants, the plaintiff appeals.


Edward R. Templer, for appellant.

George Koons, George Koons Jr., Frederick F. McClellan, Donald D Hensel and Leonidas A. Guthrie, for appellees.



Appellant brought this action against appellees Delaney and Lyons as principals, and appellee Matthews as surety, on an injunction bond to recover damages for its alleged breach. A trial before a special judge resulted in a finding and judgment in favor of appellees. The questions properly presented arise on appellant's exceptions reserved to conclusions of law stated on a special finding.

The substance of the finding is as follows: On and prior to September 13, 1911, Gubbins, Delaney and Lyons, under the firm name of John F. Gubbins & Co., were partners in doing brick, cement and street improvement work. On that day Lyons and Delaney filed in the Delaware Circuit Court their verified complaint making defendants thereto appellant and the People's Trust Company of Muncie, alleging, among other things, that appellant had been guilty of certain misconduct as a partner and that he was insolvent; and praying for a dissolution of the partnership, that a receiver be appointed over its property and assets, that an accounting be had, and that an injunction issue against appellant and the trust company. The cause so instituted was No. 6624 in the Delaware Circuit Court. Delaney and Lyons thereupon executed and filed the undertaking, on the alleged breach of which this action is predicated, Matthews being surety thereon, and asked and obtained without notice a restraining order directed to Gubbins and the trust company. The restraining order, a copy of which was duly served, is set out in the finding, and was to the effect that until the further order of the court on a hearing pursuant to notice Gubbins was restrained from disposing of or converting to his own use a certain sum of $ 10,392.78, collected by him on September 11, 1911, as the last installment of the contract price for the improvement of Broadway, a street in a suburb of the city of Muncie, which work was performed by the partnership pursuant to a contract with the city, and which sum was deposited by Gubbins with the trust company in his individual name. The trust company was likewise restrained from paying such money to Gubbins or on his order. It thereupon became necessary for Gubbins to, and he did, employ attorneys to represent him in said action and also to resist the injunction feature thereof. The court fixed September 15, 1911, as the day when there should be a hearing on the question of whether a temporary injunction should issue, and notice was accordingly served on defendants to said proceeding. Such hearing was not had however, and no temporary injunction was ordered or issued. The restraining order remained unmodified until November 1, 1911, and it was not formally dissolved by order of court until final judgment in the main action. The issues in the main action were completed September 28, 1911, by an answer in general denial filed by Gubbins and the trust company, at which time they filed also their verified motion to dissolve the restraining order. The cause was thereupon submitted to the court for trial on the issues as so formed, and on the motion to dissolve the restraining order.

On November 1, 1911, after the trial had proceeded several days, Gubbins, Delaney and Lyons filed in open court a certain written agreement executed by them on October 26, 1911, in substance as follows: That the judge of the Delaware Circuit Court might refer the cause to the probate commissioner of said court to hear the evidence and report his finding, and that to that end a longhand manuscript of the evidence already heard might be used as evidence; that the parties would submit their further evidence in a friendly manner, waiving technicalities, and with a view to arriving at a just accounting on the entire partnership business, and of all matters involved in said cause; that Gubbins should dismiss a certain slander suit commenced by him against Lyons, and that Lyons should make a proper retraction; that the firm of Gubbins & Co., with the consent of the common council of the city of Newcastle, should assign to Gubbins a certain street-improvement contract held by the partnership for the improvement of a public street in Newcastle, Gubbins to execute to Lyons and Delaney certain indemnity to save them harmless as against a certain bond executed by the firm to secure the performance of the work; that Gubbins in performing such contract should have the free use of a certain concrete mixer, owned by the firm, such use to continue until the completion of the work, unless the mixer should be sold by the receiver of the partnership; that as soon as the assignment of the Newcastle contract to Gubbins had been accomplished, the court might appoint a receiver for the firm, who should take charge of all its property and assets, including assets derived from the Broadway work and certain other public improvement contracts performed in the city of Muncie, as to certain of which, not including the Broadway work, there was recognized to be controversy between the parties as to whether they were partnership enterprises or the individual enterprises of Gubbins; that the receiver should reduce such assets to possession and to cash and pay the debts of the firm; that the court might order the trust company to pay two outstanding checks of the respective sums of $ 147.24 and $ 50, drawn by Gubbins against his account with the trust company, and that the amount of the balance of such account should be paid by the trust company to the partnership receiver, to be disposed of under order of court; that the receiver should make disposition of all the assets of the partnership and wind up its affairs under order of court, and subject to the court's determination whether such contracts as to which there was controversy, as aforesaid, were firm contracts or the individual enterprises of Gubbins, and also whether the moneys on deposit with the trust company in Gubbins' name were his moneys rather than that of the firm; that the court might decree a dissolution of the partnership and order and take an accounting.

Said agreement, as we have indicated, was filed in open court on November 1, 1911. The court thereupon ordered it spread of record, and rendered thereon and on the evidence that had been heard its finding and order, carrying out the stipulations of the agreement. Among the provisions of the order may be mentioned the following: The appointing of a receiver, with orders to take charge of the assets of the partnership, pay its debts and wind up its affairs under the order of the court, subject to certain matters to be...

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7 cases
  • National Sanitary Supply Co. v. Wright
    • United States
    • Indiana Appellate Court
    • 27 Diciembre 1994
    ...was made that the preliminary injunction was wrongfully granted because the covenants were unenforceable. In Gubbins v. Delaney (1916), 64 Ind.App. 65, 71, 115 N.E. 340, 342, this court held that no right of action accrues upon an injunction bond until the court has finally decided that the......
  • Democratic Party of Guilford County v. Guilford County Bd. of Elections, 116A95
    • United States
    • North Carolina Supreme Court
    • 8 Marzo 1996
    ...confessed that he was not entitled to the equitable relief sought.' " Id. at 472, 130 S.E.2d at 862 (quoting Gubbins v. Delaney, 64 Ind.App. 65, 71, 115 N.E. 340, 342 (1917). Two Court of Appeals decisions have adopted the rule set forth in Blatt. In Pinehurst, Inc. v. O'Leary Bros. Realty,......
  • M. Blatt Co. v. Southwell, 610
    • United States
    • North Carolina Supreme Court
    • 22 Mayo 1963
    ...since thereby the plaintiff is held to have confessed that he was not entitled to the equitable relief sought.' Gubbins v. Delaney, 64 Ind.App. 65, 115 N.E. 340; St. Joseph & Elkhart Power Co. v. Graham, 165 Ind. 16, 74 N.E. 498, and cases cited; Columbus, H. V. & T. Ry. Co. v. Burke, 54 Oh......
  • Pittsburgh, C., C. & St. L. Ry. Co. v. Kearns
    • United States
    • Indiana Appellate Court
    • 6 Junio 1917
    ...Appeal from Circuit Court, Wabash County; Nelson G. Hunter, Judge. On petition for rehearing. Petition denied. For former opinion, see 115 N. E. 340. See, also, 58 Ind. App. 694, 108 N. E. 873.G. E. Ross, of Logansport, for appellant. S. L. Strickler, of Marion, and Walter G. Todd, of Wabas......
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