Boone v. . Boone

Winborne, J. Bearing in mind that the principal relief sought in this action is permanent injunction against defendant violating an alleged agreement not to institute the threatened suit, we are of opinion that in the present state of the pleadings and the proof offered, the court below- properly ruled in continuing the injunction to the hearing. *727 Tbe doctrine that courts of equity may exercise their power to prevent actions at law when necessary to protect the rights of the parties is recognized and well settled. The order issues to the party, and not to the court. 14 R. C. L., 408, Injunctions, sec. 109; McIntosh, 982, sec. 862; Wierse v. Thomas, 145 N. C., 261, 59 S. E., 58, 15 L. R. A. (N. S.), 1008, 122 Am. St. R., 446; Bomeisler v. Forster, 154 N. Y., 229, 48 N. E., 524, 39 L. R. A., 240. It is said that the authorities are agreed that where a party has an unfair advantage in a proceeding in a court of law, which must necessarily make the court an instrument of injustice, and it is therefore against conscience that he should use that advantage, a court of equity will restrain him from doing so — the object being to prevent an unfair use of a court of law in order to deprive another of his just rights or to subject him to some unjust injury which is wholly irremediable in that tribunal. 14 R. C. L., 408; Injunctions, 109. Thus, in Bomeisler v. Forster, supra, a case in which the factual situation is quite similar to that in the present case, the Court of Appeals of New York said: “This case presents those separate features, which make the interference of a court of equity necessary in order that the plaintiff may have the full benefit of the contract, which as the court has decided, was made between him and this defendant. . . . The difference to the plaintiff between a trial of the action at law, in which all the scandalous matters would be made public and his reputation more or less affected, according as credence might be given to the statements and charges of the plaintiff therein, and a trial of the action in equity, where the issue would be confined to the question of whether there had been a release and settlement of all claims against him, which formed the basis of the complaint in the pending action, and an agreement not to sue further upon them, is quite perceptible and substantial. The fact of a release would not prevent, in the former case, the ventilation of all the matters of complaint, real or fabricated; whereas, in the latter case, if it should be found that it was validly made and that there was an agreement not to harass by suits upon claims which had been settled and released, this plaintiff would be spared a public discussion of charges which the settlement between him and the defendant had disposed of. ... A specific performance of that agreement is indispensable to the security of the plaintiff against defendant’s charges and revelations as to his past conduct, whether real or fabricated, which might affect his reputation and character in the community. This security he must be deemed to have obtained by his contract. It is not upon the principle that equitable relief is due to this plaintiff to protect him from oppressive or vexatious litigation, that we think that the decree of the trial court must rest for its correctness; but it is upon the principle that a specific performance *728 of the defendant’s agreement with the plaintiff is essential, if he is to receive its benefits, and, if he was entitled to specific performance, then the remedy of an injunction, restraining the defendant from doing the act which she has contracted not to do, was proper to be granted.” When motion for a restraining order is heard to determine the question as to whether it shall be continued until the final hearing, the judge upon hearing the parties may ascertain the probable effect of the continuance of such order upon the rights of the parties. In Cobb v. Clegg, 137 N. C., 153, 49 S. E., 80, Walicer, J., speaking of the distinction between the old forms of common and special injunctions, appropriately states: “If the facts constituting the equity were fully and fairly denied, the injunction was dissolved unless there was some special reason for continuing it. Not so with a special injunction, which is granted for the prevention of irreparable injury, when the preventive aid of the court of equity is the ultimate and only relief sought and is the primary equity involved in the suit. In the case of special injunctions the rule is not to dissolve upon the coming in of the answer, even though it may deny the equity, but to continue the injunction to the hearing if there is probable cause for supposing that the plaintiff will be able to maintain his primary equity and there is a reasonable apprehension of irreparable loss unless it remains in force, or if in the opinion of the court it appears reasonably necessary to protect the plaintiff’s right until the controversy between him and the defendant can be determined. It is generally proper, when the parties are at issue concerning the legal or equitable right, to grant an interlocutory injunction to preserve the right in statu quo until the determination of the controversy, and especially is this the rule when the principal relief sought is in itself an injunction, because a dissolution of a pending interlocutory injunction, or the refusal of one, upon application therefor in the first instance, will virtually decide the case upon its merits and deprive the plaintiff of all remedy or relief, even though he should be afterwards able to show ever so good a case.” See, also, Zeiger v. Stephenson, 153 N. C., 528, 69 S. E., 611, and Castle v. Threadgill, 203 N. C., 441, 166 S. E., 313. Under these principles and this rule plaintiff Martha Lightner Boone seeks special injunction for the prevention of irreparable injury. The question arises as to whether on the present state of the pleadings and proof there is (1) probable cause for supposing that she will be able to maintain the primary equity alleged, and (2) reasonable apprehension of irreparable loss'unless the injunction remain in force, or (3) does it appear reasonably necessary to protect her rights until the controversy can be determined. In connection with the first, plaintiffs contend and have offered affidavits of Martha Lightner Boone and of the attorney who represented *729 ber at the time, tending to show that the agreement between her and her husband was in part written and in part oral, and that the oral part was expressly omitted from the written to avoid the publicity incident to public record of it. They further contend that the oral part is not required by law to be in writing — and may be proven by parol evidence. On the other hand, while defendant denies, and offers affidavits tending to support his denial, that oral agreement covering all the matters alleged by plaintiffs was made, he admits that a part of the agreement was in parol, that is, that part relating to the ground for divorce to be alleged in the event he sues therefor. Defendant further contends that under the circumstances parol evidence of the alleged oral agreement is inadmissible and incompetent. It is a well established rule of law that parol evidence will not be admitted to vary, contradict or add to a written instrument. “But the rule applies only when the entire contract has been reduced to writing, for if merely a part has been writ ten, and the other part has been left in parol, it is competent to establish the latter part by parol evidence, provided it does not conflict with that which has been written.” Evans v. Freeman, 142 N. C., 61, 54 S. E., 847. In this case, as in Cobb v. Clegg, supra, Walker, J., clearly states the principles and reviews the authorities. See, also, McGee v. Craven, 106 N. C., 351, 11 S. E., 375; Colgate v. Latta, 115 N. C., 127, 20 S. E., 388; Cobb v. Clegg, supra; Typewriter Co. v. Hardware Co., 143 N. C., 97, 55 S. E., 417. In Colgate v. Latta, supra, quoting from Abbott on Trial Evidence, this Court said: “A written instrument, although it be a contract within the meaning of the rule on this point, does not exclude oral evidence tending to show the actual transaction . . . where it appears that the instrument was not intended to be a complete and final statement of the whole transaction, and the object of the evidence is simply to establish a separate oral agreement in a matter as to which the instrument is silent, and which is not contrary to its terms nor to their legal effect.” Applying these principles to the case in hand, while the separation agreement in so far as it affects real property is required by law to be in writing, there is no requirement that an agreement not to bring an action which would reflect upon the character and reputation of another shall be in writing. (2) In this connection it is proper to say here that the conduct of Martha Lightner Boone, whatever it may or may not have been prior to the date of the alleged agreement, is collateral to the question now before the Court. But if it should be ascertained that defendant made the oral agreement with plaintiff Martha Lightner Boone as alleged by plaintiffs, which is a question for the jury, and she should be denied the injunction here sought, it is readily perceivable that irreparable injury would result, as indicated in the case of Bomeisler v. Forster, supra. *730 (3) 'Without passing upon or intimating any opinion as to controverted facts, we are of opinion that in order to safeguard plaintiff’s rights, whatever they may be, the injunction should be continued until the facts are ascertained and the controversy determined. As to the right of plaintiff Allen J. Jervey to relief: It is well settled that where a contract between two parties is made for the benefit of a third, the latter is entitled to maintain an action for its breach. Gorrell v. Water Supply Co., 124 N. C., 328, 32 S. E., 720; Parlier v. Miller, 186 N. C., 501, 119 S. E., 898; Land Bank v. Assurance Co., 188 N. C., 747, 125 S. E., 631; Thayer v. Thayer, 189 N. C., 502, 127 S. E., 553. The judgment below is Affirmed.