JOHN A. BARBER vs. SAMUEL STRONG ET AL.

JOHN A. BARBER vs. SAMUEL STRONG ET AL. At Law No. 3561. I. S. agreed that D. D. and B. should negotiate certain certificates, to become due him from the board of public works, so far as he might require; and it was held that the amount of certificates tobe disposed of depended upon his discretion, and he could not, therefore, be enjoined from receiving them himself. II. S. gave D. and B., two of the parties to the above agreement, a power of attorney to receive all certificates due him from said board of public works, and it was considered that the two instruments ought to be construed as one, and that S. had, therefore, the same right to receive the certificates himself, should he so require, instead of the attorneys. III. The complainant alleges that he became surety on the bond of S. in consideration of an agreement that the power of attorney was to be held as his indemnity. The answer denies such agreement, and, there » being no proof to sustain it, the injunction was properly refused. IV. No liability can ever arise on complainant’s suretyship, if S. fulfills the contract for the performance of which the bond was given.— Wylie, J. V. A preliminary injunction is not a final order or decree, and is, therefore, not appealable. — Olin, J, VI. The power of attorney has a different object from the contract, and, the parties not all being the same, the two instruments do not constitute one agreement; there is consequently a misjoinder of parties defendant in the bill, and for that reason it is incapable of sustaining an injunction. — MacArthur, J. STATEMENT OR THE CASE. The bill alleges that the defendant Strong contracted with the board of public works of the District of Columbia to construct a sewer and to do certain work in Georgetown, in said District; and that, for the purpose of enabling him to carry on said work, he entered into an agreement with, complainant and the defendants Dodge & Darneille, of which the following is a copy: “ Memorandum of an agreement made and entered into by and between Samuel Strong, of the first part, and Messrs.. Dodge & Darneille and John A. Barber, of the second part. The said Dodge, Darneille, and John A. Barber, for the consideration hereinafter mentioned, hereby agree to negotiate for the said party of the first part all the bonds, certificates of indebtedness, or vouchers issued by the board of public works to him, (so far as it may be necessary and required by said Strong,) and to furnish to said Strong as-much money as may be necessary to pay for the labor and materials necessary to enable said Strong to complete and carry out his subsisting and unfinished contract with the board of public works to construct a sewer along Boundary, street and-Creek to the eastern branch of the Poto- mac; and the said Strong, in consideration of the said services, hereby agrees to furnish to said parties of the second part sufficient certificates, vouchers, or bonds of the board of public works upon which to raise the said money to carry on said work; and said Strong further agrees hereby to pay-to said parties of the second part the sum of six thousand dollars, ($6,000,) to be paid in eight-per-cent, bonds of the board of public works," at their par value, as follows, to wit, viz: Two thousand dollars ($2,000) at the end of five weeksfrorn this date, two thousand dollars ($2,000) at the end of ten weeks, and two thousand dollars ($2,000) at the end of fifteen weeks from this date; provided, however, that if said' sewer shall not be completed within fifteen weeks the said last-mentioned payment shall not be due or demandable until' said sewer shall have been fully completed. It is further mutually agreed and understood that said parties of the second part shall not pay for loans for said Strong more than. the legal rates of interest, without the consent of the said Strong first had thereto. In witness whereof we have hereunto set our hands this 9th day of August, 1873. SAM’L STRONG. DODGE & DARNEILLE. JOHN A. BARBER.” The bill then alleges that, to facilitate the object of the agreement, the defendant Strong created said Darneille and the plaintiff his attorneys, to obtain from said board of public works all bonds, certificates, or other evidence of debt due, or to become due, to him, Strong, under said contract, or for work done and materials furnished therefor in Georgetown aforesaid; and “to, from time to time,furnish” any other evidence necessary, or that might be demanded, giving his said attorneys full power to do all things necessary in the premises, as fully as he, Strong, could do. These instruments are of the same date; but there is no reference in one to the other. It is further alleged that complainant was induced by said Strong to become one of his securities on a bond in the penal sum of $50,000 to said board for the performance of his sewer contract, said Strong agreeing that the said power of attorney should be held by Darneille and complainants, so as to indemnify complainant from any loss on account of said bond. That, on the 13th day of December following, Strong filed in the office of the board a revocation of the power of attorney, of which the board gave notice to complainant and Darneille, and informed them that they would not recognize them as the attorneys of Strong. That thereupon complainant and Darneille' notified the board that they were interested in- the power of attorney, that it was still in force, and was on its face irrevocable. The bill charges that the board have delivered to Strong certificates and other vouchers under his contract which had been assigned to the complainant and Darneille, and thereby inflicting irreparable damage, &c. Prayer for injunction and account. Strong, in his answer, admits the power of attorney, but denies that it is coupled with an interest in Barber and Darneille, and he had a right to revoke it. He admits that complainant became surety on his bond, but denies that he agreed that the power of attorney was to be held as an indemnity for his suretyship; and avers that nothing was said, when the ¡complainant consented to go on the bond, about the power of ¿attorney, and that the same was signed without the suggestion of security. He admits he revoked the power of attormey, and that the board aforesaid recognizes the validity of the revocation, and have refused and now refuse to recognize ¡said Barber and Darneille as his attorneys. He is informed ¡and believes the plaintiff served his notice on the said board. Be denies their interest in the power, or in the certificates ¡and vouchers therein referred to, and says it is not true either of them can be injured by said revocation. And after several allegations, not material to be mentioned, he sets forth that there is a misjoinder of parties defendant in the bill, and prays the same benefit and advantage as if the objection had been taken by demurrer, and he prays, also, that his answer may be taken as if he had demurred generally, A restraining order was granted on the 25th of January, 1874, and at the hearing on the 14th day of March following, &he preliminary restraining order was discharged, and the application for an injunction denied, and an appeal taken by the complainant. Peter and Darneille for complainant. Enoch Totten for the defendant Strong. At the conclusion of the argument the-judges delivered ■¡oral opinions: [MAJORITY — Cartter, Ch. J.:] Cartter, Ch. J.: The contract of the 9th of August, 1873, must be regarded sas the foundation of the bill, and according to its express terms Dodge, Darneille, and Barber were to negotiate bonds and certificates only so far as may be necessary and required Iby Strong. The amount to be disposed of is to depend on bis discretion, and is to be more or less, as be pleases. I think the power of attorney is to be construed with the contract, and as Strong has reserved the right in the contract to have no more certificates negotiated than he may require, he cannot be enjoined from receiving them himself. Whenever he chooses he can stop the parties he contracted with, and he can also stop the attorneys, as their power is but a part of the contract. The bill states that Barber became surety upon Strong’s bond to the board of public works, upon an agreement that the power of attorney should be held for his indemnity against all loss by reason of his suretyship upon said bond ; but the answer denies this allegation, and the agreement is not otherwise proved. I do not see how, upon this state of the proofs, an injunction could issue. The order denying it ought to be affirmed. Wylie, J.: Another ground for refusing the injunction is that Barber has never been called upon to make good any default by reason of his undertaking in the bond, and it never can be -enforced against him if Stroug fulfills his contract with the board of public works. If it be true, as Barber states, that he has notified the board of his interest in the power of attorney, and that it has not been revoked, no liability can ever arise, for he would be released from the performance of the undertaking in his bond, at least to the amount of the .certificate which the board afterward delivered to Strong. Olin, J.: The motion in this case was heard after an answer denying the equity of the bill, and consequently no injunction would lie. But I am further of opinion that the order made in this case was not appealable. The language of the statute confines the right of appeal to such orders or decrees as involve the merits of the case. A preliminary injunction is not the final determination of the action, and I think the decree must be final in order to be appealable. I am, however, for affirming the order on the ground already stated. MacArthur, J.: I concur in the decision that the order appealed from ought to be affirmed. I think, however, it should be affirmed for the reason that there is a misjoinder of parties defendant-in the bill. The answer makes this objection, and in my view it is fatal to the bill. I cannot agree to the view that the contract and power of attorney constitute but one agreement. Strong made the contract with Dodge, Darneille, and Barber, but the power of attorney is given to only two of these parties. The rule which permits separate instruments to be read together applies only when the parties are the same and they relate to the same subject. Such is not the case here. The power of attorney has a different object from the contract, nor are all the parties the same, and there is no reference in one to the other on their face. The former cannot be construed to affect the rights of Dodge, who is not named in it, and who, as far as the case shows, has never waived his interest in the contract. I am satisfied that the portion of the answer which is interposed by way of demurrer is fatal to the maintenance of the bill, and the latter is> therefore, incapable of sustaining an injunction.