Fowler v. Loomis

Moran, P. J.

Appellee filed his bill, showing that in pursuance of certain contracts he had certain dealings with appellants in the purchase of paper; that appellants weighed the paper delivered to him, and that, in fact, he was charged by them with something over 66,000 pounds of paper more than they in fact delivered to him.

That believing their account of the amount delivered to be correct, he settled with them and gave them his negotiable promissory notes to the amount of some twelve or fifteen thousand dollars, which was in excess of the sum that he really owed them, in something over $3,000. Appellee stated that the overcharge of paper was “fraudulently” made, but he states no facts in his bill showing that overcharge was knowingly or intentionally made, or going to show that it resulted from anything other than carelessness or mistake. Fraud must be shown by the allegation of facts from which it is the necessary or probable inference. Fraud can not be made out by the profuse interpolation of adjectives, characterizing acts alleged to be done, as fraudulently done. This bill does not in any proper or sufficient manner allege fraud. The most that the allegations amount to is that appellants had obtained appellee’s notes for more than he owed them, and that they were about to transfer said notes to innocent holders against whom the facts would constitute no defense, as to any part of said notes. On the recommendation of a master, an injunction was issued on this [fill, not only restraining appellants from transferring the notes, but also restraining them from attempting in any manner to collect said notes, as they should mature.

This injunction was too broad in any view that can be taken of the case. No ground whatever is shown for preventing the appellants from proceeding at law to collect the notes as they matured. Whatever defense the statements of the bill shows that appellee had to the notes, might be made by him in a law court.

It might have been proper to restrain the transfer of the notes as long as they lacked maturity, but restraining action at law upon them after they matured was clearly wrong. As the notes have long since all matured, there is no necessity for retaining that part of the injunction which restrained their transfer, and as the injunction order as a whole was unwarranted, the entire order will be reversed.

Order reversed.