Rolfe v. Burnham

Grant, J. (after stating the facts). It is claimed by the appellants that the bill does not warrant the issuing [664] of an injunction or the appointment of a receiver, and that the material charges are met by their answer and the affidavits in their behalf. There is no showing of any fraud on their part in obtaining the chattel mortgage. The conclusion, however, is irresistible that it was understood and agreed that the appellants were to take charge of this business and carry it on for their own benefit and the benefit of complainants and their copartners. While, under the terms of the chattel mortgage, their debt was due, and, if the provisions of the mortgage alone were to be considered, they were proceeding to sell in a lawful manner, still the mortgage and the agreement must be construed together. They, therefore, had no right to ignore the agreement, and sell under the mortgage, unless the mortgagors had violated that agreement, or had induced them to enter into it by false and fraudulent representations. Unless they had good cause to so proceed, equity would enjoin them from the violation of their agreement. While the bill does not ask for a receiver, the answer óf Zeigler and Streng, in which they claim the benefit of a cross-bill, does. The sole question, therefore, presented to the court, was whether, under all the pleadings and affidavits, the court was justified in making the order. We cannot interfere with the action of the court unless there has been a clear abuse of discretion. There were three creditors secured by three chattel mortgages. Unsecured- creditors were also interested, as were Zeigler, Streng & Rolfe. The partners themselves did not agree, and it seemed to be the clear duty of the court to take that course which would best protect the interests of all the parties. This, we think, the court did. We see no reason to interfere with the order, and it is affirmed, with costs. Long, C. J., Montgomery and Moore, JJ., concurred. Hooker, J. v did not sit.