Appeal of Brown

62 Pa. 17, 1869 Pa. LEXIS 206

Opinion

The opinion of the court was delivered,

by Williams, J.

It is clear, that under the conflicting proofs in this case the complainants were not entitled to a preliminary injunction to enforce the specific performance of the alleged contract. Such an injunction ought never to be granted except in a clear case of right, in order to prevent irreparable mischief. Where there are disputes in regard to the rights of the parties under the contract which is sought to be enforced, especially when the dispute involves, as it does here, the very terms and obligations of the contract, an injunction ought not to be awarded until the rights of the parties are ascertained and settled. The affidavits in this ease are in direct conflict, but the preponderance of the proof is clearly in favor of the contract as alleged by the respondents; but if the proof had been so equally balanced as to leave the terms and stipulations of the contract in doubt, this would have been sufficient to have prevented the granting of an injunction: Mammoth Vein Coal Co.’s Appeal, 4 P. F. Smith 183. The court below did not find the contract to be as alleged by the complainants, but came to the conclusion, “ giving equal credit to all the affidavits,” that the parties misunderstood each other, and that the complainants would not have entered into the agreement if they had understood its terms and stipulations as the respondents did; and that the conflicting proofs disclosed such a case of mutual mistake going to the essence of the contract, as would render it voidable, and relievable in equity. But if a court of equity would set aside the agreement on the ground of the mutual mistake of the parties, it needs no argument to prove that it would not enforce by injunction its specific performance, by either party as understood by the other. But it is contended that the complainants were entitled to the injunction under the terms of the agreement as alleged and proved by the respondents, because the managers had no authority to discontinue the arrangement by giving the sixty days’ notice, and there is no averment in the answer, nor was there any proof, that the parties in interest had authorized the managers to give the notice which they caused to be served on the complainants. But it is plain that the injunction cannot be sustained on this ground. The complainants did not allege as the foundation of the title to the relief prayed for, that the parties in interest had not authorized the notice given by the managers, and therefore, the respondents were not required to aver in their answer that the notice was given by their authority. The answer admits, that the notice was authorized and directed by the managers, as alleged by the complainants, and avers that it is the respondents’ purpose and d'esign, to divert the course of consignment of the coal from the complainants, after sixty days from the service of said notice upon them; but the respondents deny that in so doing they shall violate any contrast made by them with the complainants, or any of their rights or interests in the pre- • mises. The fair inference from the answer is, that the managers were authorized by the respondents to give the notice which they caused to be served on the complainants. But whether this be so or not, the complainants were not entitled to any injunction on a ground not alleged in their bill. On the complainants’ own showing, this is not a case for a preliminary injunction. Its effect is to take the coal mined at the colliery out of the possession and control of the respondents and put it into the possession of the complainants. This can only be done by a final decree after the rights óf the parties have been settled : Farmers’ Railroad Co. v. Reno, Oil Creek and Pithole Railway Co., 8 P. F. Smith 225. Nor is it a case of irreparable mischief. The quantity of coal that may be mined and sold by the respondents between the date of the filing of the bill and the final decree can be easily ascertained, and the complainants’ damages arising from the loss of commissions on the sale thereof can be readily estimated. As a general rule, mischief or damage, which is susceptible of compensation in damages, is not irreparable: Rhodes v. Dunbar, 7 P. F. Smith 274. The injunction must therefore be dissolved.

And now, to wit, July 6th 1869, it is ordered, adjudged and decreed, that the special injunction against David P. Brown and Jacob Huntzinger, as managers, and the other respondents in this case, ordered by the Court of Common Pleas, be dissolved.