Saxon v. Parson

McCLELLAN, J.

This is an appeal from an order dissolving a temporary injunction, issued on a bill filed by appellant against appellee to restrain appellee from violating the obligation of a contract whereby appellant purchased of appellee his “taxicab business,” cars, and “good will” as defined in the writing. The report of the appeal contains the contract. The submission, on motion to dissolve, was on “bill, sworn answer of respondent, affidavits introduced by complainant [appellant], and oral testimony of respondent.”

[1, 2]

For the appellee it is contended that the omission to provide a note of testimony (Chancery Rule 77; Civ. Code, p. 1552) on the hearing of the motion to dissolve operates to debar appellant from consideration or relief on this appeal. Just the converse is true, if chancery rule 77 is applicable. See Jackson v. Hooper, 107 Ala. 634, 640 , 18 South. 254 . The appellee was the movant, the actor; and, if the omission to provide a note of testimony was essential, the order of dissolution was erroneously entered (Watson v. Kirkland, 204 Ala. 655 , 87 South. 93 ), being, in that event, unjustified by any so noted supporting matter not even the answer upon which appellee relies (Goodloe v. Dean, 81 Ala. 479, 480 , 8 South. 197 ). Regardless, however, of that matter, the order dissolving the injunction was, in our opinion, erroneously entered. Code, § 4535, governing hearing on motion to dissolve injunction, changed the rule which accorded a measure, at least, of concluding effect to the full denials of a sworn answer, and, while giving to such an answer an effect as evidence, constituted the issue on hearing of motion to dissolve one of fact mainly, if the bill possesses equity. Nelson v. Hammonds, 173 Ala. 14, 19, 20 , 55 South. 301 ; Lynne v. Ralph, 201 Ala. 535 , 78 South. 889 .

[3, 4]

The particular provision of the contract 'the breach of which is sought to be prevented through this bill for injunction— an appropriate remedy in proper cases (Harris v. Theus, 149 Ala. 133 , 43 South. 131 , 10 L. R. A. [N. S.] 204, 123 Am. St. Rep. 17 , among others) — is that stipulating against appellee’s operation or having operated a car or cars for hire in Ashland for 12 months from the 1st day of December, 1920. The bill avers a breach or breaches by appellee of this engagement. The effect of the indicated feature of the contract is unmistakable. The last paragraph in the contract was designed to introduce an exception to the broadly stated obligation of appellee not to engage in hiring ears in Ashland during the period stipulated. The last paragraph cannot be read otherwise than as introducing an exception without imputing to it an intent to annul the previous comprehensively expressed obligation of the seller, the appellee. Considering the contract in its entirety, the exception set out in the last paragraph meant this: That, if appellee established a taxi business in any other place than Ashland, the appellee, during the 12 months defined in the contract, might bring passengers becoming such at places other than Ashland into Ashland and take those passengers — becoming appellee’s passengers at places other than Ashland for transportation to Ashland — from Ashland to other places. Unless so construed, the earlier expressed intent of the parties would be completely negatived, thereby introducing an inconsistency not to be expected in writings of this character. Reading the bill, affidavits, sworn answer, and the oral testimony in the light of this construction of the contract, it is clear, even from appellee’s testimony, that the appellee’s acts temporarily enjoined through the writ dissolved were in violation of appellant’s rights under the contract, and that the temporary injunction was erroneously dissolved.

The decree dissolving the injunction is reversed. The cause is remanded for further proceedings consistent with this construction of the contract.

Reversed and remanded.

; ANDERSON, O. X, and SOMERVILLE and THOMAS, JJ., concur.