Davis v. Sowell & Co.

STONE, C. J. According to the averments of the bill, the Molino Mills Company was a partnership, composed of Daniel E. Sullivan, owning three-fourths interest, and Matthew L. Davis, owning one-fourth interest. The bill speaks of no other partners ; and if the averments are true, there are no other partners, as there can be no other interests owned by another. Daniel E. Sullivan died before the origin of any controversy, out of which this suit arose. It results, then, that according to complainant’s case, he was the sole surviving partner of the Molino Mills property. In Parsons on Partnership, §§ 440*, 442*, the rights and powers of the surviving partner are correctly summarized, as follows : “ The death of a partner invests the surviving partners with the exclusive right of possession and management of the whole partnership property and — 269 — business; but only for the purpose of selling and closing the same. . . . The survivors have possession, and keep possession of every thing. Until a settlement, the representatives of the deceased can not claim or take any one chattel, or any portion of the merchandise. The survivors are, from the death, trustees for all concerned in the partnership ; for the representatives of the deceased, for the creditors of the firm, and for themselves. Their trust is to wind up the concern in the best manner for all interested, and, therefore, without necessary delay ; and their powers are such as enable them most effectually to execute that trust. Nor do we know any difference, in this respect, as to the dioses in possession, and those in action.” If the averments of the bill be- true, Davis, the complainant, was entitled to the entire custody, management and control of the property and business interests brought to view and presented for determination in this suit. The answer of Martin H. Sullivan, one of the executors of D. F. Sullivan, deceased, admits that the Molino Mills property was owned in partnership by Sullivan and Davis ; admits that Davis’ interest is what he claims it to be, and that D. F. Sullivan, the testator, held in his own name the remaining three-fourths of the property. The bill and answer substantially agree thus far. The answer, however, sets up that, notwithstanding D. F. Sullivan was the only known partner with Davis in the Molino Mills property, yet he, the said Martin H., was a silent, equal partner with the said David F. in all his business enterprises, including the Molino Mills property, and that said property was in fact held and owned, three-eighths each, by the said Martin II. and the estate of David F., and one-fourth by complainant, Davis. The answer denies that Davis is the surviving partner, and sets up that he, Martin II., is also a surviving partner. If this be true, then Davis and Martin II.' Sullivan are surviving partners, with the powers enumerated above resting in the two ; and each would have the equal right to possess, manage, and control the partnership effects. It follows from this, that if Martin EL Sullivan was a partner, he was authorized, equally with Davis, to receive the lumber from Sowell & Co., and a delivery by the latter to him was lawful, and discharged them from all liability to Davis.— Crosswell v. Lehman, Durr & Co., 54 Ala. 363. So, thepivotal’point — the only really controverted issue of fact — in this aspect of the case, is, whether or not Martin II. Sullivan was a partner in the Molino Mills property. In this disputed question of fact, Sowell & Co. are largely interested ; for, if Davis be the only survivor, it is not perceived how they can defend themselves against a claim by the latter that the property of the partnership shall be delivered to him, the survivor. — 270 — As we have said above, there is but one material difference between the facts averred in the bilí, and those set up in the answer. 'It is not denied that Davis was a co-partner with D. E. Sullivan in the Molino Mills property, arid that the latter died, leaving Davis surviving him. It is averred, and is riot denied, that Davis was a partneronly in the mill property, and in large timber lands for supplying timber for the mills’ consumption ; that the business of that firm extended only to the procuring of logs, bringing them to the mill, sawing them into lumber or timber, and selling such lumber at a'horrie market; and in such connected enterprises, as were- tributary to this chief aim.’ Sullivan had other and larger employments and enterprises, with which Davis had no connection. Notably, he bought and sold lumber and sawn timber, and supplied cargoes for shipment, procured in part from the Molino Mills, and partly from other mills. It is not' stated in so many words, but the irresistible inference, alike from' the bill and answer, is, that to the extent he obtained lumber and manufactured timber from the Molino Mills', he, Daniel F. Sullivan, became a purchaser from the. Molino Mills Company — Sullivan & Davis. The latter was not interested in the profits or losses, made or suffered after delivery to Sullivan, at the home market. Shortly before Sullivan’s death, he made a contract with a lumber exporting company to deliver to them, at Pensacola, Florida, thirteen millions feet of lumber and timber, for shipment to South America. The delivery was not to be made at one and the same time, but at continuous iutervals, running through several months. Soon afterwards, Sullivan died, with little or no part of his contract complied with, but after some preparation'had been made for having the lumber manufactured, that it might be delivered. The bill avers that Sullivan contracted with the Milino Mills Company to manufacture and deliver to him two-thirds of this lumber, at the rate of two-thirds of a million feet per month, and that the remaining third he was to obtain from other mills. The answer, while admitting that Davis was no party to the sale to the'lumber exporting company, had no interest in' that contract, and yet was to furnish every month two-thirds of a million of feet of lumber, to be delivered by Sullivan on his contract with the lumber exporting company, denies that Sullivan made any contract with the Molino Mills Company. Its averment is, that Sullivan simply ordered that company' to furnish to him that proportion of the lufnber, at that rate per month. This is a distinction without á difference. If Davis had no part or interest in the sale to the lumber exporting company, then the supply of lumber by the Molino Mills Company to Sullivan, to be used in performance of his contract, was' a contract of sale, express or im — 271 — plied, by. the company to Sullivan, one of its own members. Taking, then, the substance of the bill and the answer on this question, when Sullivan died, he was under a large executory contract with the Lumber Exporting Company, a very small part of which, if any, had been performed; and the Molino Mills Company, of which Davis was a member, was under a similar contract, in amount two-thirds as great, complied .with only to a partial, if any extent. The death of Sullivan did not absolve either party from the performance of his contract, unless there was a stipulation that such event should work that result; and the pleadings are silent as-to such stipulation. This executory agreement, not having been performed when Sullivan died, liad the effect of. continuing the partnership in existence, with its active functions, until its terms were complied with. — Parsons on Partnership, 398*, 417*. So, it would seem to have been of great importance to Sullivan’s estate that this large executory contract with the Lumber Exporting Company, existing at the time of his death, should be complied with, and, as contributing thereto, that the Molino Mills Company; — Matthew L. Davis, survivor — should comply with its contract. — Mudge v. Treat, 57 Ala. 1. The Molino Mills were burned, before much progress was made in complying with its contract, but having on hand a large quantity of timber, cut and ready to be man u facta red into lumber. They had also very extensive timber tracts, from which to procure other timber. The firm of Sowell & Co., millmen, were employed to saw this timber, and, to this end, it was carried to their mill, and there sawrnd. They were also to saw other timber, to be furnished them from tiie lands of the Molino Mills, under the-superintendence and direction of Matthew L. Davis, the complainant in this suit. Under this contract, Sowell & Co.- had manufactured lumber, a considerable quantity of which had been shipped to Pensacola, consigned to Martin li. Snllivan, the executor of Daniel F. Sullivan’s will, to be used -by him in performing the contract .with the Lumber Export Company. They. were also engaged in sawing timber, so obtained from the Molino Mills Company, and in shipping the same to M. LI. Sullivan, as above. The business was large, -rapid and continuous, to meet pressing demands made by the Lumber Export Company, under the terms of their contract. Davis drew on Sullivan, the executor— amount not stated in the bill — which the latter dishonored. We have no means of knowing how the account then stood, in the matter of the lumber contract, between the Molino Mills Company, and the estate of Daniel F. Sullivan. The pleadings furnish no data for such calculation. Nor does the defense set up, as a reason for dishonoring the draft, that it was in ex — 272 — cess of the sum then earned and due from Sullivan’s estate to the Molino Mills Company, on the lumber contract. Davis then notified Sowell & Co. not to ship or deliver any more lumber to Sullivan, executor, except through, and under the orders of him, Davis. Sowell & Co. disobeyed this order, and thereupon Davis filed this bill, and obtained a preliminary injunction against Sowell & Co. and Martin H. Sullivan, executor, restraining the one from delivering, and the other from receiving lumber under said contract. This injunction was dissolved on answer, and an appeal taken to this court. It may as well be stated here as elsewhere, that in submitting to the chancellor the motion to dissolve, the note of submission states it was submitted on hill and answer. We will not, therefore, on this appeal, regard the affidavits which are found in the transcript. They were submitted on the other motion, heard at the-same time, and not on this. We need not determine whether, if offered, they would have been admissible on the motion to dissolve.- — Barnard v. Davis, 51 Ala. 565. In the matter of making the contract with Sowell & Co., there is a difference of fact between the averments of the bill and the statements of the answer. The bill avers that Davis made the contract. The answer denies this, and states that Martin II. Sullivan contracted with Sowell & Co. So far as legal rights and liabilities are concerned, it would seem this can make no material difference. If, as the undisputed facts tend to show, Sowell & Co. were simply employed to aid in complying witli the Molino Mills’- part of the contract — that is, to manufacture the lumber the Molino Mills Company had promised to manufacture for Daniel F. Sullivan — then, if both Davis and Martin L. Sullivan were surviving partners, it was in effect a contract with both, and either would have the right to accept and receive the performance. On the other hand, if Martin II. Sullivan was not a partner, and, nevertheless, made the contract with Sowell & Co., then, in legal effect, the contract, if adopted by Davis, was made with him; Martin II. Sullivan being held, in such case, to have acted as the agent of Davis, the latter being the only partner authorized to make such contract. This question, like the other, must depend on the inquiry, whether Martin II. Sullivan was a partner in the Molino Mills Company. It is contended that the injunction was rightly dissolved, because the bill presents no case for equitable interposition. The precise form of this argument is, that Davis had a complete and adequate remedy at law. If the averments of the bill be true, then a refusal by Sowell & Co. to deliver the lumber to Davis, on his demand and payment or tender of their proper charges, would be a conversion, for which an action would lie — 273 — against them. And turning over the lumber to Martin LI. Sullivan, unless, as he alleges, he was a partner in the Molino Mills property, would give him no rightful possession; and any act of dominion he exercised over the property thus turned over, would render him personally liable therefor. If he applied it in part performance of Daniel F. Sullivan’s sale to the Lumber Export Company, then it fastened a legal liability on the estate of said Daniel F., for which Davis could maintain an action at law, for goods sold and delivered. This, because the death of Daniel F. Sullivan removed every obstacle to the maintenance of such action. — Lacy v. Le Bruce, 6 Ala. 904. There is another ground, however, on which, it is contended, the jurisdiction of the Chancery Court can be maintained. The performance of the contract made by Sowell & Co. manifestly contemplated many partial deliveries, running through many days, — in fact, several months. To sue at law, for each breach of duty, would require very many suits. The aggrieved party must incur this immense trouble and expense, or, taking the risks, wait until the entire contract is fulfilled, and then bring an action for the entire breach. Chancery sometimes intervenes to prevent a multiplicity of suits, or to quiet' a long, harrassing litigation. — 1 Pom. Eq. §§ 250, 252. We will not decide, at this stage of this case, and in the absence of further argument, whether or not this bill contains equity, in that it seeks to settle, in one suit, what it avers is a tortious wrong, continuous in its character. There is no averment that they are not solvent, or able to respond in the full measure of any injury the complainant may sustain. If it were averred that Sowell & Go. are not fully able to respond in damages, the complainant’s case would be the stronger. It would possibly be impregnable, if all the defendants are unable to answer in damages for the wrong the bill charges they are committing against complainant. We have, then, the naked case of a bill filed against parties who, in the absence of averment to the contrary, we must presume are amply able to make compensation for any tortious injury they may inflict. It is not charged that Sowell & Co do not deliver, and faithfully account to Sullivan, for all the logs turned into lumber and timber by them, according to the strict letter of their contract. It is not charged M. II. Sullivan is not faithfully and fully delivering the lumber and timber, thus received from Sowell & Co., to the Lumber Export Company, in performance of the large contract made by his testator with that company. The complaint is two-fold: first, that the lumber is not allowed to pass through the hands of Davis, surviving partner, who is thereby deprived of his right to know, and keep an account of the delivery, and its progress; second, that Sullivan, the executor, refused to honor Davis’ draft, without stating — 274 — its amount, and without stating whether or not it was in excess of the sum due to the Molino Mills Company from Sullivan’s estate, on the then partly performed contract to saw and deliver lumber, made by the company with Sullivan. Ought the injunction to have been awarded? In considering this question, we will regard as true the'averment of the bill, that Davis .was the surviving partner of' the Molino Mills Company. What is relied on as a denial of this, is not strictly such It is a confession and avoidance. — Rembert v. Brown, 17 Ala. 667. In High on Injunctions, § 13, it is said, the Chancery Court is sometimes “governed, it) deciding an application for a preliminary injunction, by considerations of the relative convenience and inconvenience which may result to the parties from granting or withholding the writ. .'. . . Where it appears that greater danger is likely to result from granting, than'from withholding the relief, or where the inconvenience seenis to be equally divided as betwoeen the parties, the injunction will be refused, and the parties left as they are, until the legal right can be determined .by law.” .In tlie .case' of the S. & C. Railway Co. v. S. &. B. Railway Co., 1 Simons, N. S. 410, the purpose of the bill was to restrain the consummation of an agreement then under negotiation, which materially changed the relations existing between the. two railway companies, under a prior contract still ih)expired. The gravamen of the bill was, that the proposed change was unauthorized, and would be greatly injurious to the party complainant. A temporary injunction was moved for. A .most elaborate opinion was delivered by Lord Cranwor'th, vice-chancellor, in which, after stating that “ there can be no doubt .o.f the fact, that the proposed agreement is an agreement altogether inconsistent with the contract of July, 1850,” he refused the injunction, giving the following condensed reiteration of the reasons which influenced him : “ Although I am perfectly satisfied of the authority of this court to issue an injunction, not merely to restrain parties from doing acts, but also from entering into contracts, pending litigation, tliat may embarrass the plaintiff in his suit; and that the court is entitled to do so, whenever it sees there is a fair ground for litigation raised by the plaintiff; yet, that right of the court .must be guided by a discretion, not to exercise it where it sees that, on the balance of convenience and inconvenience between interim interference and non-interim interference, the balance greatly preponderates in favor of the defendant, and against the plaintiff. Now, here, the injury to the plaintiffs, in comparison with the injury to the defendants, is extremely small. The contract between the plaintiffs and the defendants may be put an end to in three yqars. The present rate of through traffic seems to be — 275 — something like £12,000 a-year. Three years would be something like £36,000; that is, on both lines, so that it would be the half of that. The plaintiffs would be entitled, if there was no other remedy, to an action for that; and though it may not be quite easy for them to prove the exact amount they lose, yet that is a matter not altogether incapable of being estimated: and, on the whole, if the convenience and the inconvenience are weighed against each other, the inconvenience seems to me to preponderate, beyond all measure, in favor, of the party who has the legal right to enter into any legal contract he pleases. This is the short ground on which I feel .myself bound to refuse the injunction.” To the same effect are The Attorney-General v. The Mayor, 1 Myl. &. Cr. 171; Fielden v. L. & Y. Railway Co., 2 De Gex & Sm. Rep. 531; Dyke p. Taylor, 3 De Gex, F. & J. 467. And in this country the same doctrine prevails. In Hack. Imp. Com. v. N. J. M. Railway Co., 7 N. J. Eq. 94, it is said : “An injunction will not issue, when the benefit secured by it is of little importance, while it will operate oppressively and to the great annoyance and injury of the defendant, unless the wrong complained, 'of is wanton and unprovoked.’.’ To .the same effect aire M. & E. R. R. Co. v. Prudden, 5 N. J. Eq. 530; Olmstead v. Kolster, 14 Kan. 463; Brown v. Pacific Mail Steamship Co., 5 Blatch. 525; McCorkle v. Brem, 76 N. C. 407. The granting or withholding a preliminary injunction is, and, for manifest reasons, should be, largely a matter within -enlightened discretion, controlled materially by the balance of-convenience and inconvenience. Such writ, in .this case, .may cause a breach of Sullivan’s contract .with the Lumber Export Company, and entail large prospective damages for the breach. It may, moreover, render it impossible for the Molino Mills Company to perform its contract with D. F. Sullivan. This would entail a probable loss on the company, withpossible damages for its breach of contract. Against these, we can conceive of no possible injury Davis can suffer from thé failure to obtain an injunction, which approximates them in amount. The injunction granted, taking only the averments, of the bill as our guide, was improvident^ granted; and having been dissolved, we 'think we should not reinstate it.' The decretal order of the chancellor, dissolving the injunction, is affirmed.