Sterback v. Robinson

Digges, J., delivered the opinion of the Court. This is an appeal from an order passed by the Circuit Court for Harford County, granting an injunction against the appellant, upon a bill filed by the appellee in that court. The exhibit filed with the bill, which constitutes, the contract sought to be specifically enforced, is as follows: “Exhibit A. “Growers’ and Packers’ Tomato Contract. “This agreement, made this 18th day of J an., in the year 1924, between W. E. Bobinson & Co., party of the first part, hereinafter called packer, and Victor Sterback, party of the second part, hereinafter called grower. The grower agrees to plant and grow for the packer 5 acres of tomatoes more or less at 40c. ²⁶ per' bushel of 60 lbs. to be delivered at the packer’s Hickory canning factory in good, ripe, merchantable condition during the season of 1924, and to haul either on spring wagon or provide suitable springs on road wagon to be approved by packer.

Grower further agrees to deliver all the merchantable tomatoes he grows on his farm during the year 1924. No tomatoes to be delivered on Saturday without permission from packer. “Either party ■ to this contract may be released in part or whole if prevented from performing same by providential hindrances beyond their control, by giving immediate notice to the other party. Packer agrees to settle for tomatoes on or before December 1st, 1924. “Send me.... tons.... fertilizer. “Send me... .lbs......tomato seed. “W. E. Robinson & Oo., Packer. (O. M. S.) “Victor Sterback, Grower.” “Dimensions of a standard bushel box: Slats, 24 inches long, two ends and one middle piece cut 10x14 inches.

If above size boxes are filled properly they will carry 60 lbs.” Upon the same day as the filing of the bill of complaint and exhibit, the chancellor passed the following order: “Upon the aforegoing bill of complaint and affidavit, it is ordered this 2nd day of October, in the year 1924, by the Circuit Court for Harford County, as ¿ court of equity, that the writ of injunction issue as prayed in said bill, upon 'the filing of a bond by or on behalf of the complainants in the penalty of two hundred dollars ($200), with security to be approved by the clerk of this court, but liberty is hereby reserved to the defendants to move for the rescinding of this order and for a dissolution of said injunction at any time after filing his answer, upon giving the plaintiffs five days’ previous notice of such motion, and the clerk is hereby directed to annex a copy of this order to the said writ of injunction. “Wm. H. Harlan.” ²⁷ The defendants named in the -original hill were Victor Sterbaclc and Frank Sterback. On October 4th, 1924, the answer of Frank Sterback was filed and at the same time a motion was made to- dissolve the injunction. On October 6th, 1924, after leave obtained, the plaintiff amended the bill of complaint by making Marie Sterback, the wife of Frank Sterback, a, party defendant.

Subsequently, the appellant, Frank Sterback, filed his motion to have the court rescind its order granting leave -to the plaintiffs to amend the bill of complaint by making Marie Sterback a party. This -motion was overruled. The appellant then obtained leave to withdraw the answer to the original bill of complaint, for the purpose of filing a demurrer. After filing the demurrer, that in turn was withdrawn, the answer refiled to the amended bill of complaint, and appeal taken to this Court.

The sole question presented on this appeal is whether or not the appellees are entitled to an injunction as prayed for in their bill of complaint. In determining the propriety of the action of the lower court in passing the order for injunction, we are confined to the averments of the bill of complaint and exhibits filed therewith. Section 31 of article 5 of -the Annotated Code of Maryland 1924, requires that an answer be filed before an appeal can be taken from an order granting an injunction. Under repeated decisions of this Court, we are not to consider the allegations or denials In the answer, but are confined to the case as made out by the bill of complaint, and all facts stated therein must he assumed to be true.

Shannon v. Wright, 60 Md. 521 ; Dittman v. Repp, 50 Md. 516 ; Haight v. Burr, 19 Md. 133 ; Chesapeake Co. v. Mt. Vernon Co., 107 Md. 528 . We have therefore only to consider and decide whether the facts s-ta-ted in the bill of complaint justify the passage of the order granting the injunction, from which the appeal is taken. The facts are few and simple.

The appellee is engaged in the business of packing or canning tomatoes, one of their ²⁸ canning houses being located near Vale Station on the Maryland & Pennsylvania Railroad, and another near the town or village called Hickory, in Harford County, Maryland. The defendants, Frank Sterback and Ma'rie Sterback, are the owners of a farm located near Vale Station, which was being occupied by Victor Sterback, brother of Frank Sterback, as tenant, at the time the contract filed as an exhibit with the bill of complaint was made. This agreement was made on January 18tb, 1924, and the parties thereto, as recited in the contract and as indicated by the signatures thereto, were W. E. Robinson & Co., party of the first part, called the “packer,” and Victor Sterback, party of the second part, called the “grower.” This contract provides that the grower, • Victor Sterback, agrees to plant and grow for the packer five acres of tomatoes, more or less, at forty cents per bushel of sixty pounds, to he delivered at the packer’s Hickory canning factory in good, ripe and merchantable condition during the season of 1924; the grower further agrees to deliver ail the merchantable tomatoes he grows on his farm during the year 1924; no tomatoes to he delivered on Saturday without permission from the packer. The bill further alleges that this contract was made with the authority of Frank Steyback and Marie Sterback, duly given to Victor Sterback to make the same; that shortly after the date of the agreement Victor Sterback removed from the farm and from Harford County, but notwithstanding the departure of Victor, Frank Sterback and Marie Sterback proceeded to plant and grow on the farm the acreage of tomatoes called for by the contract, and when the same began to mature and were ready for delivery, delivered to the appellee one hundred and forty-eight boxes of tomatoes from said acreage; that at the time of the filing of the hill there was on the acreage so planted tomatoes then ready to be delivered to the appellee in furtherance of the contract, but that Frank Sterback and Marie Sterback, his wife, notified the appellees that they would not deliver any more of said tomatoes; that they proposed to haul the same to Balti ²⁹ more and sell on the open market at prices then prevailing for said tomatoes, which prices were largely in excess of the price agreed upon in the contract; that the appellees declined to accept the refusal of the defendants to deliver the tomatoes, or to consent to their being sold elsewhere; yet notwithstanding said contract and agreement and the partial performance thereof by the defendants, Frank and Marie Sterback, the said defendants, in violation of their contract and in fraud of the rights of the appellees thereunder, persisted in their refusal to make further deliveries to the appellees and in their determination to haul said tomatoes to Baltimore and sell them in the open market.

The bill of complaint further alleges, that the complainants would suffer irreparable loss and injury if the defendants were not restrained from breaking their contract, and that such loss could not he measured in money damages; that the complainants were entitled to have said agreement for the sale and delivery of the tomatoes specifically enforced against the defendants, and that they were without redress in the premises unless the defendants were restrained from disposing of said crop of tomatoes and required to deliver them to the complainants in accordance with the agreement. The relief sought was: (a,) That the contract be specifically enforced; (b) that the defendants, Victor Sterback, Frank Sterback and Marie Sterback, his wife, their agents, servants, and employees, he enjoined from disposing of said tomatoes and required to deliver the same to the complainants as they ripened, according to the terms of the contract; (c) and