Carpenter v. Danforth , 19 Abb. Pr. 225 ( 1865 )

Sutherland, J.

Though probably the relation of trustee and cestui que trust did not strictly exist between the plaintiff and Danforth, yet considering their situation and relations to the stock in question, I think Danforth was bound to disclose to the plaintiff all the material facts within his knowledge, which tended to enhance the value of the stock, and which might result in enabling the company to declare the enormous dividends which it did declare subsequently.

Whether the defendant Danforth did, or did not do so, can be better and more safely determined after the trial than on this motion.

Though the answer is drawn with great precision and fulness, and may be said fully to answer the equity of the complaint in words, yet I do not think it follows, as matter of course, that the continuance of the injunction should be denied. ■

I do not think I should be justified in dissolving the injunction before the trial, particularly as I cannot see that the retention of the injunction can be of any pecuniary damage to the defendants; while if the plaintiff finally succeeds in the action, lie will be entitled, among other things, to a re-transfer of the specific stock.

As to the plaintiff’s subsequent letter to the defendant, it is-difficult to give due effect to it, until the trial of the main issue as to the alleged original undue advantage.

The motion to continue the injunction must be granted, with $10 costs to abide the event of the action.