Rembert v. Brown , 17 Ala. 667 ( 1850 )

DAB.GAN, C. J.

Without inquiring into the particular merits of this cause at this time, as that can be better done on the final hearing, when the evidence is before the court, we will briefly examine whether the chancellor erred in dissolving the injunction.

We do not think it can be doubted but that the bill contains equity. As a general rule, if there has been an account stated between the parties, this will be a bar to discovery and relief; but if there has been mistake, omission, accident, or fraud, or .undue advantage, by which the balance is 'incorrectly fixed or ascertained, a court of equity will not suffer it to be conclusive upon the party injured, but will allow it to be opened and reexamined. — 1 Story’s Eq. 523. And if the account settled is between client and attorney, or between others standing in confidential relations to each other, a court of equity will more, readily interpose and open the account, and even, it is said byr some authorities, upon the general allegations of errors. But when to these confidential relations are added charges of fraud and undue advantage taken of a principal, of a weak and confiding mind,.no authority, we apprehend, can be found that holds the stated account a bar to equitable relief. — Story’s Eq. Plead. 804. This 'view of the law applied to the facts, disclosed by the bill, shows that it contains equity, and that the injunction was properly granted, restraining the further proceeding at law on the note given by William C. Wood to the defendant. We have therefore only to inquire whether the answer so far denies the equity of the bill, as to authorise the dissolution of the injunction.

It is a well settled rule, .that upon a motion to dissolve an injunction, the answer can be regarded only so far as it is responsive to the allegations of the bill. — Hardy v. Summers, 10 Gill & J. 317; Morwen v. Smith, 1 Green’s Ch. R. 172. The agreement set up in the answer, by which the parties stipulated to litigate their rights at law, cannot therefore be considered on this motion; for this part of the answer is in no wise responsive to the bill. - Whether or not this agreement will constitute a bar. to relief on the final hearing, if the complainant should show that he was otherwise entitled to it, is a question in reference to which we will express no opinion. But looking alone to the denials of the answer in reference to the consideration of the note, we think it clear that the chancellor should have retained the injunction until the final hearing.

The alleged consideration of the note sued on appears to have been four receipts for money, executed by Middleton G. Wood to the defendant. But how those receipts could create any indebtedness from Middleton G. Wood to the defendant we cannot understand. The money paid by the defendant appears to have belonged to Middleton G. and William C. Wood, and consequently the receipts could only be evidence in favor of the defendant of the amount thus paid by him, but they could create no indebtedness from Wood to him, and could not form a valid consideration for the note. This appears to us to be the consideration relied on by the answer. At all events, we feel assured that the answer does not in clear and distinct terms set forth a valuable consideration for which the note was given, and therefore the equitable right of the complainant to enjoin the suit is not denied in such a manner as authorised the dissolution of the injunction. An injunction should not be dissolved, unless the answer in clear and explicit terms denies the equity of the bill, (Moore v. Heylton, 1 Dev. Eq. R. 429; 1 Bland, 195; lb. 199,) and it is said that an injunction will - not always be dissolved, even if the answer deny the equity of the bill, if the court can see good reason in the facts disclosed, why the injunction should be retained. — Poor v. Charlton, 3 Sumner, 75; Hollister v. Barkly, 9 N. Hamp. 230; Sherrill v. Harrell, 1 Ired. Eq. R. 194. But if the answer be evasive or uncertain, or if the case made by the answer does not clearly show that the complainant is not entitled to relief, the injunction should be retained until the final hearing. The application of this principle to the answer-of the defendant shows that the court erred in dissolving the injunction, and its decretal order must therefore be reversed and the injunction here re-instated. The cause will be remanded for further proceedings.