Wilmut v. Franklin , 268 S.W. 971 ( 1924 )

BUCK, J. H.

Wilmut, plaintiff below, filed suit in the district court of Archer county against J. T. Franklin, Harris-Otis & Co., E-. M. Hooper, L. M. Capps, L. W. Bigham, and the American Railway Express Company for injunction. He alleged that Franklin was the agent of Harris-Otis & Co., the name alleged in plaintiff’s reply to the defendants’ answer to be Stranahan, Harris & Aotis, a corporation, and it will be hereinafter so styled; that the Geraldine Commons school district issued $22,000 worth of bonds, payable at stated periods from 1934 to 1954, bearing 6 per cent, interest per annum. He alleged that he had offered, on July 23, 1924, to the trustees of the school district, to wit, L. M. Capps, L. W. Bigham, and George Parrish, to buy said bonds, and had offered to pay par value with accrued interest, plus $1 premium interest payable semiannually, at the county depository of Archer county. He alleged that .the proposition was made in writing, and that the trustees, in writing, on July 24, 1924, accepted the same; that plaintiff had always stood in readiness to purchase said bonds, and at the time of filing the suit was then able, ready, and willing to purchase the same, and that he. had called upon said trustees and the county superintendent of Archer county and had offered to pay for said' bonds upon delivery; that Capps and Bigham, without consulting their associate Parrish, and without notifying him of their intent, in conjunction with the defendant Hooper, who seems to have been the county judge and ex officio county superintendent of Archer county, had undertaken to breach their contract and had had bonds duly issued, registered, and signed by the proper officers, and, on August 3, 1924, said bonds were sent by the American Railway Express Company, by the defendant Hooper, to be delivered to Stranahan, Harris & Aotis, Inc., upon the payment of the principal and accrued interest thereon, although higher and better bids therefor had been received; that under the law, such bonds must be sold to the highest and best bidder. He further alleged that Hooper and Franklin had actual knowledge of the plaintiff’s contract with the trustees to purchase said bonds, and the acceptance thereof by the trustees, but that they had induced Capps and Bigham to undertake to violate said contract by causing said bonds to be sent to Stranahan, Harris & Aotis, Inc., whose domicile he alleged was in Toledo, Ohio; that the bonds, were at the time of filing the suit,, in the care of the American Railway Express Company at Toledo, and had not yet been delivered to Stranahan, Harris & Aotis, Inc., but would be so delivered unless restrained by the injunction prayed for; that said bonds had been unlawfully delivered to said express company, first, because they belonged to the plaintiff, and, second, because the said Capps and Bigham acted without any authority in undertaking to dispose of them or to deliver them to the said Stranahan, Harris. & Aotis, Inc. He prayed for an injunction restraining each and all of the defendants from interfering with his contract of purchase and his right to have, said contract carried out and the bonds delivered to him upon the payment of the contract price therefor.

The petition was- verified, and, upon being presented to the district judge of Archer county, á temporary restraining order was issued, plaintiff being required to give bond in the sum of $1,000.

The. defendants moved to dissolve the temporary injunction, alleging that prior to the application for the writ, and its issuance by order of tbe court, tbe bonds described in plaintiff’s petition bad been sold to Strana-ban, Harris & Aotis, Inc., of Toledo, and tbat all tbe acts of tbe trustees, L. M. Capps, L. W. Bigham, and tbe county judge, E. M. Hooper, and tbe defendant Franklin, wbicb were sought to be restrained by plaintiff in his petition and wbicb tbe court did restrain, or seek to restrain, by bis temporary writ, bad been committed, and said bonds, at tbe time of tbe application for an injunction and of its issuance, were in tbe bands of tbe defendant, tbe American Railway Express Company,' outside tbe state of Texas and in tbe state of Ohio; tbat said defendant American Railway Express Company is a foreign corporation, and tbat tbe trial court bad no jurisdiction to grant an injunction to restrain its officers and agents who were nonresidents of tbe state of Texas from delivering 'said bonds to tbe consignee in Toledo. Defendants further denied tbat the plaintiff bad a valid and . binding contract at tbe time of tbe filing of said application for injunction, for tbe reason tbat prior to tbe execution thereof by tbe trustt-es of said common school district, said trustees, acting through a majority thereof, bad made and executed a valid and binding agreement for tbe sale of said bonds of tbe defendant J. T. Franklin, acting for and in behalf of said Stranaban, Harris & Aotis, Inc., and tbat said contract was in full force and effect at the time of tbe attempted agreement to sell said bonds to said plaintiff; tbat, by reason of said prior sale to said Franklin, the said trustees were without authority in law and in fact to make another sale of said bonds to plaintiff; tbat plaintiff knew at tbe time of' tbe execution of bis purported contract tbat said prior sale had been consummated, and tbat said bonds belonged to said Stranahan, Harris & Aotis, Inc. Defendants further denied tbat said bonds bad been unlawfully delivered to said express company, and tbat tbe same belonged to plaintiff; and expressly denied tbat said Capps and Bigham acted without authority in making tbe contract for the sale of said bonds to Stranaban, Harris & Aotis, Inc., and in delivering tbe same through tbe county judge to the said American Railway Express Company, to be delivered to said buyer. This answer was verified by the affidavit of J. T. Franklin.

By an unverified pleading, tbe plaintiff replied to tbe motion to dissolve, and alleged tbat before tbe issuance of the bonds involved in this suit, and before they were even voted, an illegal attempt was made to dispose of tbe same at less than par value to tbe defendant Franklin; • tbat the law provides that such bonds should be sold to tbe highest bidder, and at not less than par, with accrued interest, but tbat Franklin conceived a scheme of trying to defeat the law by creating a fictitious charge against said bonds for the printing thereof, claiming tbat tbe same would amount to a sum largely in excess of tbe 'cost thereof; tbat a suit was filed in the district court of Archer county to enjoin tbe issuance of said, bonds and tbe delivery thereof under said purported contract to the said Franklin, and tbat judgment was entered dissolving tbe injunction so far as tbe issuance of the bonds was concerned, but perpetuating the same and forbidding tbe trustees of said district to deliver said bonds under said contract to tbe said Franklin; that, immediately upon the announcement of said judgment by tbe court, the plaintiff stated to said trustees in open court tbat be desired to bid on tbe bonds when they should be offered, and that it was tbe duty of tbe trustees to receive and accept bids as provided by law; tbat tbe said Franklin induced two of tbe trustees of said district, acting severally and not as a board, to wit, tbe said Gapps and Bigham, to agree that said Franklin could have the said bonds, regardless of tbe outcome of said suit; tbat all of said facts were withheld from tbe other trustee, 'George Parrish, and tbat no such agreement was made by tbe board as such; tbat plaintiff did bid for said bonds and entered into a contract for their purchase, but that said defendants, acting clamjestinely, and with purpose to defraud, undertook to get tbe bonds into tbe bands of said Stranaban, Harris & Aotis, Inc., when it could be claimed tbat tbe same, being payable to bearer, bad gone beyond tbe processes of the trial court, and, in furtherance of that scheme, caused said bonds to be delivered to said express company. Plaintiff further alleged tbat the bonds bad a peculiar, value to him, inasmuch as be was a taxpayer in said district, and tbat tbe taxable values of such district were now abnormally high on account of oil production and activities.

We do not think tbat it was incumbent upon tbe trial court, or. is incumbent on this court, to attach any significance to any facts alleged for the first time in plaintiff’s unverified reply to the defendant’s motion to dissolve. It appears that no evidence was offered in the trial on the issues herein involved, and that tbe court decided the issues upon pleadings only. A material amendment to tbe petition for a temporary injunction, or a reply which alleges new facts, should be verified in tbe same manner and to tbe same extent as tbe original petition. 32 Corpus Juris, p. 336; Ross v. Veltmann (Tex. Civ. App.) 161 S. W. 1073; Allen v. Abernethy (Tex. Civ. App.) 151 S. W. 348. Especially is this true when the issues are tried upon tbe pleadings only and no other evidence is introduced. Defendants in their answer, under oath, denied tbat plaintiff bad a valid and binding contract with tbe trustees to-purchase tbe bonds at tbe time of filing tbe peti tion for injunction; and especially denied that said bonds were unlawfully delivered to the express company, and that the bonds at that time belonged to plaintiff; and especially denied that Capps and Bigham acted without authority in making the contract for the sale of said bonds to said Stranahan, Harris & Aotis, Inc.; and denied that, in delivering them by the county judge to the express company to be delivered to said buyer, they acted unlawfully. It may be argued that- in so denying the essential elements of plaintiff’s allegations that the defendants pleaded rather a conclusion of law than an' allegation of fact. But the trial court may have concluded that the offer alleged to have been made by plaintiff for the purchase of bonds, requiring interest to be paid semiannually, was not in fact as good a proposition as the one offered by the defendant, Stranahan, Harris & Aotis, Inc.

In granting or dissolving an injunction, the exercise of sound judicial discretion of the trial court will not be disturbed unless it affirmatively appears that the court has abused such discretion. We are unable to say that in the instant case the large discretion vested in the trial court -has been abused. Accordingly we affirm the judgment below.