Poisson v. City of Manchester

• Decision Date: 20 June 1957
• Citation: Poisson v. City of Manchester, 133 A.2d 503, 101 N.H. 72 (N.H. 1957)
• Parties: Albert D. POISSON v. CITY OF MANCHESTER et al.
• Court: New Hampshire Supreme Court

Page 503

133 A.2d 503

101 N.H. 72

Albert D. POISSON v. CITY OF MANCHESTER et al.

Supreme Court of New Hampshire.

Argued April 2, 1957.

Decided June 20, 1957.

Sheehan, Phinney, Bass, Green & Bergevin, Manchester, for plaintiff.

McLane, Carleton, Graf, Green & Brown, Manchester, specially for Amoskeag Industries, Inc.

J. Francis Roche, City Solicitor, Manchester, for the other defendants.

LAMPRON, Justice.

At the opening of the hearing counsel for Amoskeag Industries stated that he was appearing specially and was not participating in the hearing which pertained to a prayer for temporary orders. Its counsel did not examine witnesses or offer evidence on its behalf and was excused and permitted to leave without objection from counsel for the other parties before the hearing was concluded. At the conclusion of the evidence during arguments of counsel for the plaintiff and for the City, the Court stated 'We are hearing now the temporary restraining order: we are not hearing the merits.' The parties did not object and are therefore bound by the proceedings as they were conducted. Kusky v. Laderbush, 96 N.H. 286, 74 A.2d 546, 21 A.L.R.2d 536; Rosenblum v. Judson Engineering Corp., 99 N.H. 267, 270, 109 A.2d 558.

Plaintiff's bill for specific performance did not raise any issue as to the validity of the rights in the premises involved asserted by Amoskeag Industries nor was this issue litigated between the parties interested. Amoskeag's offer to release, made without consideration, had already been rejected by the City and was to expire by its terms two days after the day of the hearing. Restatement, Contracts, s. 34. There was no evidence that Amoskeag had incurred any contractual obligation to either the plaintiff or the City in connection with this property. No rights or obligations of Amoskeag having been raised or litigated the Court's action dismissing it as a party was proper. Jones v. Herbert, 77 N.H. 282, 90 A. 854.

The granting or refusal of a restraining order rests in the sound discretion of the Trial Court under the circumstances and the facts of the particular case. Hatch v. Hillsgrove, 83 N.H. 91, 96, 138 A. 428, 139 A. 366; 43 C.J.S. Injunctions § 14, p. 420. Its action cannot be arbitrary or capricious but must be controlled by established principles of equity. 4 Pomeroy, Equity Jurisprudence (5th. ed.) s. 1404, p. 1040. In the absence of a showing of an abuse of discretion by the Trial Court its action will not be disturbed. Perkins v. Exeter Associates, 100 N.H. 247, 123 A.2d 825; 5 C.J.S. Appeal and Error § 1591, p. 485.

The plaintiff has failed to establish a clear title in the City especially in view of the claim of rights in Amoskeag which has not been litigated between the interested parties. It is conceded that the sale is subject to the approval of the Finance Commission of the City of...