No. 311.

61 S.E.2d 596 (1950)

232 N.C. 531

AREY et al. v. LEMONS et al.

Supreme Court of North Carolina.

November 1, 1950.

Attorney(s) appearing for the Case

C. C. Horn and Joseph C. Whisnant, Shelby, for plaintiffs, appellees.

Falls & Falls, Shelby, for defendants, appellants.

ERVIN, Justice.

Upon an appeal from an order granting or refusing an interlocutory injunction, the Supreme Court may review both the findings of fact and the conclusions of law. Finger v. Rex Spinning Co., 190 N.C. 74, 128 S.E. 467; Coates v. Wilkes, 92 N.C. 376.

The purpose of an interlocutory injunction is to preserve the status quo of the subject matter of the suit until a trial can be had on the merits. Boone v. Boone, 217 N.C. 722, 9 S.E.2d 383; State v. Scott, 182 N.C. 865, 109 S.E. 789; Harrison v. Bray, 92 N.C. 488. For this reason, an interlocutory injunction does not lie to take property out of the possession of one party and place it in the possession of another. Jackson v. Jernigan, 216 N.C. 401, 5 S.E.2d 143; Stevens v. Myers, Mo.App., 73 S.W.2d 334; Spoor-Thompson Mach. Co. v. Bennett Film Laboratories, 105 N. J.Eq. 108, 147 A. 202; Eastern Farms Products v. Wampsville Dairymen's Corporation, 173 Misc. 413, 17 N.Y.S.2d 954. Besides, equity will not undertake by injunction to protect the property rights of a party who has an adequate remedy at law. Merchants Oil Co. v. Mecklenburg County, 212 N.C. 642, 194 S.E. 114. When these rules are applied to the case at bar, it is manifest that the court below erred in awarding injunctive relief to the Arey Oil Company.

The defendants are in the actual and peaceable possession and enjoyment of the property in dispute under claim of right. Yet, the order of the court enjoins them from making further use of such property so as to coerce them to transfer its possession to the Arey Oil Company. Hence, the order disturbs rather than preserves the status quo of the subject matter of the suit.

Moreover, the evidence does not indicate any inadequacy in the legal remedies available to the Arey Oil Company. Whitford v. Bank, 207 N.C. 229, 176 S.E. 740; Kistler v. Weaver, 135 N.C. 388, 47 S.E. 478; Wilson v. Respass, 86 N.C. 112; Hettrick v. Page, 82 N.C. 65; Baxter v. Baxter, 77 N.C. 118; Jordan v. Lanier, 73 N.C. 90; Howell v. Howell, 40 N.C. 258.

The provision of the injunction relating to the filling station is improper for another reason. To obtain an interlocutory injunction, a plaintiff must make out at least a prima facie showing of a right to the final relief demanded by him. Plott v. Com'rs., 187 N.C. 125, 121 S.E. 190; Gray v. Central Warehouse Co., 181 N.C. 166, 106 S.E. 657; Jones v. Lassiter, 169 N.C. 750, 86 S.E. 710; Newton v. Brown, 134 N.C. 439, 46 S.E. 994.

The Arey Oil Company predicates its demand for a final judgment for the possession of the filling station during the remainder of its supposed term upon the premise that Lemons and wife have forfeited their right of occupancy under their purported sublease through breach of the condition of the writing of November 19, 1945, requiring them to handle the petroleum products of the Arey Oil Company to the exclusion of similar merchandise marketed by any other person, firm, or corporation.

The writing of November 19, 1945, is a somewhat startling document. According to its language, the parties to it entered into a single transaction whereby Lemons and wife, as owners of the fee, leased the filling station rent-free to the Arey Oil Company for a term of ten years, and the Arey Oil Company, as lessee, subleased the same porperty rent-free to Lemons and wife for the same term. This being the case, it may be argued with much persuasiveness that any rights which the Arey Oil Company hoped to acquire in the filing station by the transaction died a-borning through the merger of the lease and sublease in the fee. See: 51 C.J.S., Landlord and Tenant, § 96. We by-pass this intriguing question without decision, for its determination is not necessary to the solution of our present problem.

It is clear that the various provisions of the writing of November 19, 1945, are indivisible, and that there is no consideration to support them unless it can be found in the mutual promises embodied in the agreement therein contained whereby the Arey Oil Company promises to sell its petroleum products to Lemons and wife, and whereby Lemons and wife promise to handle such products to the exclusion of similar merchandise marketed by any other person, firm, or corporation. But any consideration inherent in these mutual promises is necessarily illegal; for the agreement has as its object the violation of the anti-monopoly or anti-trust statute making it unlawful for any person, firm, corporation, or association to make a sale, or to contract to make a sale "of any goods, wares, merchandise, articles or things of value whatsoever in North Carolina, whether directly or indirectly, or through any agent or employee, upon the condition that the purchaser thereof shall not deal in the goods, wares, merchandise, articles or things of value of a competitor or rival in the business of the person, firm, corporation or association making such sales." G.S. § 75-5, subsection 2; Florsheim Shoe Co. v. Leader Department Store, 212 N.C. 75, 193 S.E. 9. The validity of this conclusion is not impaired in any wise by the recital that the writing in suit was signed by Lemons and wife as a part of the consideration for the deed for the filling station executed to them by Robert J. Arey, who was not then a member of the Arey Oil Company. An agreement prohibited by positive law does not cast off its unlawful character, and put on legal holiness because it is entered into by some of the parties in consequence of a promise made by them to a third person in an independent contract.

For these reasons, the writing of November 19, 1945, is void in its entirety, and the Arey Oil Company has no right to the final relief demanded by it in respect to the filling station.

It is noted, in closing, that this case is distinguishable from Grubb Oil Co. v. Garner, 230 N.C. 499, 53 S.E.2d 441, where it appeared that the oil company had a valid leasehold estate in the filling station by virtue of its obligation to pay rent, and where it did not appear that the occupants of the filling station had agreed to purchase petroleum products from the oil company on the condition denounced by the statute.

The order granting the interlocutory injunction is



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