Hollister v. Barkley

9 N.H. 230

Opinion

PARKER; G. J

*

The only question arising in this ease, at this time, is on the motion of the defendant to dissolve the injunction.

The answer very distinctly alleges a personal contract by the plaintiff, to pay the defendant for one half of his personal services, at all events, whether any profits were realized by the partnership or not. If the statements of the answer are correct, the defendant has a just claim upon the plaintiff, personally, to that extent, and is entitled to maintain the action he has commenced; for those services, in such case, are not to be carried into the partnership account, but constituted a charge against the plaintiff, individually, on his personal promise. It is apparent, therefore, that so far as that suit is concerned, all the equity of the bill is denied by the answer; and the general principle is that in such case the injunction is to be dissolved. 2 Maddock’s Ch. 366 ; 8 Vesey 35, Clapham vs. White; 9 Ves. 355, Berkley vs. Brymer ; 19 Fes. 144, 153, Norway vs. Rowe; 1 Johns. Ch. Rep. 211, Hoffman vs. Livingston ; ditto 444, Eastburn vs. Kirk.

There may be exceptions to this general rule—cases where the court, in its discretion, from the nature and circumstances of the case, will continue the injunction. 2 Johns. Ch. Rep. 202, 205, Roberts vs. Anderson; 3 P. Williams R. 255, Gibbs vs. Cole, and cases cited in note ; 2 Eq. Cas. Abr. 14, B. 2. S. C. ; 2 Brown’s Ch. Rep. 88, Strathmore vs. Bowes ; 3 Brown 463, Isaacs vs. Humphage; 1 Ves., Jr., 427, S. C.; 16 Ves. 49, Peacock vs. Peacock; 19 Ves. 149, note C; 2 Madd. Ch. 366; 1 Newland’s Ch. Pr. 227.

But there is nothing in the nature of this case to take it out of the general rule, and the dissolution of the injunction is a matter of course, on motion. The effect of dissolving it will only be to permit the defendant to proceed in the regular course with his suit at law, in which the burden of proof will be on him to show a contract, by the plaintiff, such as is alleged in the answer, and in which the plaintiff will be at liberty to rebut any evidence of that character by showing, if he can, that he is not personally liable, but that the services for which the defendant makes his claim are properly chargeable to the partnership, as stated in his bill. The answer having denied all the equity of the bill, the plaintiff cannot be placed in a more favorable situation.

Injunction dissolved.

The case was subsequently, on motion, committed to a master, to state the partnership accounts.

Wilcox, J., haring been of counsel, did not sit.