Webster v. De Bardeleben
| Decision Date | 30 June 1906 |
| Parties | WEBSTER v. DE BARDELEBEN ET AL. |
| Court | Alabama Supreme Court |
Appeal from Chancery Court, Elmore County; W. W. Whiteside Chancellor.
"To be officially reported."
Bill by A. M. Webster against T. E. De Bardeleben and others. From a decree adverse to complainant, he appeals. Affirmed.
The bill in this case was filed by appellant against appellees seeking to have a contract attached thereto construed and to enjoin appellees from interfering with the conduct of appellant's business in reference to the subject-matter of the contract, and to enjoin an attachment suit begun by appellees against appellant and levied upon certain property of the appellant. Appellees filed an answer specifically denying the allegations of the bill, and a cross-bill asking for affirmative relief, the allegations and purposes of which are sufficiently set out in the opinion. On a final hearing the chancellor dissolved the injunction, dismissed the bill but retained the cross-bill, and granted appellees affirmative relief thereunder.
The contract to be construed, as set out in the exhibit to the bill, was in the following language: It was signed in duplicate by all the parties thereto on the day and date above written.
F. W. Lull and E. S. Thigpen, for appellant.
J. M. Holley, D. D. Askew, and Martin & Martin, for appellees.
The case is to be considered in two aspects. The first is, whether under the original bill, as filed by the complainant therein, A. M. Webster, the appellant here, against De Bardeleben and wife, the appellees, he was entitled to the relief he sought in the perpetuation of the preliminary injunction granted to him. The chancellor denied such relief.
When the allegations of a bill, "upon which its equity depends, are fully, directly and completely denied in the answer, and none appears by the case made, why the injunction should be retained," it should be dissolved. Brooks v. Diaz, 35 Ala. 601; Robertson v. Walker, 51 Ala. 487; Rice v. Tobias, 83 Ala. 351, 3 So. 670; 1 High on Injunctions, § 162; Id. §§ 1470, 142.
In this case, all the material averments of the bill are denied with that positiveness and clearness required by this rule. In addition the affidavits introduced, as was held by the court below, abundantly fortified the denials of the answer.
There was a difference between the complainant and the defendants, in their construction of the contract between them, as to how the timbers cut by complainant were to be measured, the complainant contending, that he was to pay two cents per cubic foot, measured or scaled after it was squared at the mill, while the contention of the defendants was, that he was to receive two cents per cubic foot measured as round timber. It must be admitted that there is some indefiniteness in the contract as to this matter. The chancellor held, that by a proper construction, the contention of the defendants was the proper one. The contract sets out, that complainant "agrees to purchase all of the pine and poplar timber that will square twenty (20) cubic feet in one stick, except as otherwise provided, and to cut and remove the same, between the 1st day of January, 1905, and the 1st day of January, 1910, and to pay the parties of the first part, the sum of two cents per cubic foot, for all the timber cut under the terms of this contract, the first payment to be made sixty days after the party of the second part, commences to cut said timber, and to pay for all the timber scaled up to that time at the mill," and so to pay, at the end of each sixty days thereafter, for all timber which has been scaled.
It was further agreed, "that should either one of them violate any of the terms of the contract, then...
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