Johnson v. . Jones

119 S.E. 231, 186 N.C. 235, 1923 N.C. LEXIS 216

• Court: Supreme Court of North Carolina
• Decided: October 10, 1923
• Status: Published

Opinion

Adams',-J.

Tbe action was brought to enjoin tbe trustee from selling tbe property under tbe deed of trust, on tbe ground that tbe defendant Jones bad refused to comply with tbe contract by preventing tbe use of tbe side-track, and bad thereby caused tbe plaintiff to suffer loss. Tbe verified complaint contains allegations to this effect, and is supported by tbe plaintiff’s affidavit and other evidence. Tbe answer of tbe defendants, and tbe affidavits filed in their behalf, deny tbe plaintiff’s allegations, and thereby raise issues of fact. Under these circumstances, bis Honor made no error in continuing tbe injunction until tbe rights of tbe parties could be determined and tbe amount actually due could be ascertained. Harrington v. Rawls, 131 N. C., 39; Smith v. Parker, ib., 470; Jones v. Buxton, 121 N. C., 285; Harrison v. Bray, 92 N. C., 489; Pritchard v. Sanderson, 84 N. C., 300; Purnell v. Vaughan, 77 N. C., 268.

Tbe finding that tbe defendant is solvent does not affect this conclusion. It would be an obvious hardship on tbe plaintiff to require him to incur tbe risk of an assignment of tbe notes or to make payment of their face value and then bring suit to recover damages for tbe defendant’s breach of contract, when tbe whole controversy can be settled iii tbe pending action. Tbe policy of tbe law is to prevent a multiplicity of suits and needless litigation.

It is further argued that tbe receiver of tbe Bank of Coats is tbe owner and bolder in due course of one of tbe notes executed by tbe plaintiff, and tbat tbe land was advertised for sale at bis request; but in view of tbe allegations in tbe pleadings and affidavits, we regard it unnecessary to consider tbis question, especially as tbe receiver is not a party to tbe action and tbe issue between bim and tbe plaintiff is not properly raised.

Tbe judgment is

Affirmed.