
    EL CAMPO LIGHT, ICE & WATER CO. et al. v. WATER & LIGHT CO. OF EL CAMPO et al.
    (Court of Civil Appeals of Texas.
    Nov. 17, 1910.
    Appellees’ Rehearing Denied Dec. 1, 1910.
    On Appellants’ Motion for Rehearing, Dec. 15, 1910.)
    1. Appeal and Error (§ 100) — Appealable Orders.
    Where a hearing on an application for a temporary injunction was postponed by agreement of counsel, in which it was stipulated that the “hearing on the restraining order heretofore issued herein shall be continued to and taken up on the hearing of the merits of the case, and that the said order as now existing shall be in full force and effect until such time and until the further o'rder of this court,” the language of the agreement having been induced by a mistaken belief of all the parties thereto that a temporary restraining order had theretofore been granted, the agreement did not operate as a restraining order, so as to make subsequent proceedings on the application for injunction nothing more than a motion to dissolve a restraining order, from which an appeal would not lie.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 100.]
    2. Corporations (§ 481) — Restraining Foreclosure.
    In an action for an injunction by a company which had purchased machinery from another corporation, which corporation had agreed to make certain repairs on the machinery transferred, to restrain the selling corporation from requesting the trustee of bonds given for the price of the property sold to declare a default of the bonds or deed of trust for nonpayment of interest, and to enjoin the trustee from declaring a default of the bonds and deed of trust, or from declaring the principal of the bonds to be payable, the bill alleging that, while plaintiff owed defendants the amount of interest accrued on the bonds, defendants owed plaintiff a sum for repairs of the machinery sold which was more than sufficient to offset the interest, so that nothing was due to defendant, but that, notwithstanding, plaintiff had reason to believe and did believe that defendants would, because of nonpayment by plaintiff of the interest, declare all the bonds matured and cause the trustee to foreclose by sale of the property, was sufficient as against a general demurrer.
    [Ed. Note. — For other cases, see Corporations, Dec. Dig. § 481.]
    3. Corporations (§ 481) — Restraining Foreclosure — Adequate Remedy at Law.
    That plaintiff held bonds of the individual stockholders of defendant company, guaranteeing that defendant company would put the machinery in good condition, and make the repairs as soon as practicable, would not relieve defendant company of liability upon its promise to make the repairs nor confine plaintiff to its remedy on the bonds, as an action on the individual stockholders’ bonds for the cost of repairs would not be adequate to prevent the declaration of the maturity of the bonds given the corporation.
    [Ed. Note. — For other cases, see Corporations, Dec. Dig. § 481.]
    4. Injunction (§ 16) — Grounds—Adequate Remedy at Law.
    In courts administering both law and equity, the rules denying injunction where there is a remedy at law should not be applied as rigidly as at common law, where the issuance of the writ in equity was to a certain extent an invasion of the jurisdiction of another tribunal.
    [Ed. Note. — For other cases, see Injunction, Cent. - Dig. § 15; Dec. Dig. § 16.]
    5. Corporations (§ 481) — Restraining Foreclosure by Teustee — Default in Payment of Interest — Set-Off—Pleading.
    In an action for an injunction to restrain a selling company and the trustee of bonds given for the purchase price of the property and machinery sold from declaring a default for nonpayment of interest on the bonds, where plaintiff claimed that the sellers had violated their agreement to make repairs of the machinery, and claimed the right to set off against the interest the cost of the repairs and certain damages, and a gas producer and gas producer engine included with the machinery, title to which passed to plaintiff by the sale was not shown not to have been received by plaintiff, plaintiff was not entitled to offset the value of the gas producer and engine with the cost of installing it, where the bill merely stated that the gas producer and engine had not been installed, and the cost of installation, which was to be borne by the seller, was not stated separately from the value of the producer and engine.
    [Ed. Note. — For other cases, see Corporations, Dec. Dig. § 481.]
    6. Appeal and Error (§ 1153) — Disposition of Cause — Rendition of Judgment.
    On appeal from a judgment granting an injunction, where it appears that plaintiff did not execute and file with the clerk of the court a bond for injunction, and that the district judge who granted the writ did not fix the amount of the bond to be executed as a condition precedent to the issuance of the writ as expressly required by Rev. St. 1895, art. 2997, the Court of Civil 'Appeals, where the petition states grounds for injunctive relief, may enter such orders and judgment as should have been entered by the lower court, requiring the execution of the bond by plaintiff to be approved by the clerk of the district court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4507 — 4512; Dec. Dig. § 1153.]
    On Appellants’ Motion for Rehearing.
    7. Injunction (§ 152) — Proceedings to Obtain — 'Scope of Hearing.
    At a hearing before the judge in chambers in an action for an injunction, when the only question properly before him was whether he should grant an injunction upon the verified pleadings of plaintiffs and the answer and controverting affidavits presented by defendants, it was not error for him to refuse to sustain special exceptions urged to the petition, since they could be acted upon only by the court.
    [Ed. Note. — For other cases, see Injunction, Dec. Dig. § 152,]
    Appeal from District Court, Wharton County ; Wells Thompson, Judge.
    Action by the Water & Light Company of El Campo and others against the El Campo Light, Ice & Water Company and others. Judgment for plaintiffs, and defendants appeal.
    Reformed and affirmed.
    G. G. Kelley and Geo. P. Willis, for appellants. N. C. Abbott and W. L. Hall, for ap-pellees.
    
      
       For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   MeMEANS, J.

This suit was instituted by appellee, the Water & Light Company of El Campo, on the 29th day of September, 1909, in the district court of Bexar county, Tex., Pifty-Seventh judicial district, against the appellants and the West Texas Bank & Trust' Company, trustee, alleging, in substance: That the appellee was a private corporation, organized under the laws of Texas, and having its principal office at El Campo, in Wharton county, Tex., and authorized by its charter to manufacture and supply ice, electric light, and motor power, and to supply water to the public, etc. That the appellant El Campo Light, Ice & Water Company was a corporation organized under the laws of Texas, with its principal office at El Campo, Tex., and was by its charter authorized to do and perform the same business as the appellee until it ceased doing business as hereafter alleged. That the West Texas Bank & Trust Company was a corporation organized under the laws of Texas, with its principal office and agents located in San Antonio, Bexar county, Tex. That the appellants W. J. Hefner, Mack Webb, E. L. Carroll, W. Einkelstein, A. Fah-renthold, Jr., and F. J. Hardy were each residents and citizens of El Campo, in Wharton county, Tex. That on or about the 19th day of December, 1908, the individual defendants above named owned and controlled all the stock of the defendant El Campo Light, Ice & Water Company, and were operating an electric light, ice, and water plant at El Campo. That on or about said date , they contracted with plaintiff to sell to it said plant, with all the property rights and franchises belonging thereto, and that in consideration therefor the plaintiff was to issue its negotiable 6 per cent. 20-year bonds, in denominations of $1,000 each, the payment of which was to be secured by a deed of trust on the said plant and franchises of said plaintiff company. That of said bonds 46 thereof, aggregating $46,000, were to be delivered to tlie defendant light company in payment for said property, and the balance were to be delivered to and held by the defendant West Texas Bank & Trust Company as trustee, to be delivered only in payment for improvements to the plant to the extent of 80 per cent, of said improvements. That also, as part of the consideration for said sale and delivery of said plant to plaintiff, the defendant light company and the individual defendants were to have all property and machinery put in good condition and working order, including a certain gas producer and gas producer engine, which passed by the sale, but had not then been installed, and was not connected with the machinery. That the said defendants guaranteed that the said gas producer and gas producer engine would develop 25 horse power, in addition to the power required to run the motor in connection with the amount of coal guaranteed, and that, upon the faith of these promises and agreements, the plaintiff took possession all of said property, and has operated said plant ever since. That at time of making said contract and delivery of said property, for the purpose of securing the faithful performance of said contract, and as a part of said transaction and consideration, each of the individual defendants entered into a bond to plaintiff in the penal sum of $6,000, guaranteeing that the defendant light company would put all the property and machinery, so by it then used in its plant, in good condition and working order, as soon as practicable. That at the time of said contract and sale a considerable portion of said machinery was needing repairs in order to put it in good condition and working order, and that it was for the purpose of protecting the plaintiff and insuring the making of these repairs that said contract and bond was made. That plaintiff kept and performed its said part of said contract of sale, but that neither the defendant company nor the individual defendants complied with their contract and guaranty to place said machinery in good repair and condition, but wholly failed and refused to do so, and that it therefore became necessary for the plaintiff to do so, which it did at great cost and expense.

Plaintiff sets out various items of expense alleged to have been incurred by it in repairing said machinery, aggregating the sum of $679.31. It further alleged: That between December 19, 1908, and April 1, 1909, plaintiff had expended the sum of $813.60 in making such repairs, the items of which it alleges it was impossible to give at that time, also the sum of $76.10 for expert labor. That the defendant failed to install the gas producer and gas producer engine, which was taken in said trade. That the total cash value of all the property turned over to it by defendant was $30,073, and the actual cost of the said gas producer and gas producer engine, with the cost of installation, freight, and motor attached, was $3,960.15, making a total value at the time of the sale of the property turned over to plaintiff the sum of $34,033.15; the value of the gas producer and gas producer engine being 11 per cent, of the total value of said property. That the plaintiff paid $46,000 in bonds for the entire property, and therefore it is entitled to a return of 11 per cent, of said bonds, or $5,290, for failure of that portion of the consideration. That by reason of the failure of defendants to make the repairs it agreed to make on said machinery, and to install and put in running order said gas producer and gas producer engine, it became necessary for plaintiff to expend, and. it did expend, between December 19, 1908, and April 1, 1909, tbe sum of $696.39 more for fuel than it would bave 'been required to do if tbe said defendants bad complied with tbeir contract. That, by reason of sucb failure to comply with tbeir contract on tbe part of defendants, tbe plaintiff has been prevented from doing tbe volume of business and filling tbe demands made upon its plant than it otherwise could and would bave done, and thereby plaintiff has sustained a loss of more than $2,000, wherefore it claims damages against them in said sum of $2,000.

Plaintiff further alleges: That tbe bonds so issued and delivered to defendant tbe El Campo Light, Ice & Water Company and tbe individual defendants as stockholders thereof contained the following provision: “If default shall be made in tbe payment of tbe principal or interest of any of said bonds, when tbe same shall become due, and sucb default, except in tbe payment of the principal of this bond, shall continue for a period of three (3) months, tbe principal of this bond may become immediately due and payable in tbe manner and with tbe effect specified in sucb mortgage or deed of trust.” That tbe deed of trust given to secure tbe payment of said bonds contains the following provisions: “In case default shall be made in tbe payment of tbe principal or interest of any of tbe bonds secured hereby, whe,n tbe same shall become due, and sucb default, except in tbe payment of the principal, shall continue for a period of three months, then in every sucb case tbe trustee may, and if requested by the holders of twenty-five (25) per cent, in amount of tbe bonds hereby secured and then outstanding, shall declare the principal of all of tbe bonds hereby secured and then outstanding to be due and payable immediately; and upon any sucb declaration tbe same shall become due and payable immediately, anything in this indenture, or in said bonds, to tbe contrary notwithstanding ; this provision, however, is subject to tbe condition that if, at any time after tbe principal of said bonds has been declared due and payable, all arrears of interest upon all sucb bonds, with interest at tbe rate of 6 per cent, per annum upon all overdue installments of interest, shall either be paid by tbe company or be collected out of tbe mortgaged property, before any sale of the mortgaged premises shall bave been made, then, and in any sucb case, tbe holders of a majority in amount of tbe bonds hereby secured and then outstanding, by written notice to tbe company and to tbe trustee, may waive sucb default and its consequences, but no sucb waiver shall extend to or affect any subsequent default, or impair any right consequent therein.”

Plaintiff further alleges “that tbe semiannual interest on tbe bonds held by tbe El Campo Light, Ice & Water Company and tbe individual defendants became due and payable on tbe 1st day of July, 1909, and the same has not been paid; that tbe said defendants, as plaintiff is informed and believes, and therefore alleges, are the owners and holders of said bonds, and tbe bonds so held by them are only bonds issued and outstanding ; that plaintiff has reason to believe, and does believe, that tbe defendant West Texas Bank & Trust Company, tbe trustee named in said deed of trust, will at tbe expiration of three months after said interest became due — that is, at or after tbe 1st day of October, 1909 — declare a default in tbe payment of said interest, and declare the whole of said bonds due and payable immediately, and further alleges that, in the event tbe trustee should not so declare, tbe defendant El Campo Light, Ice & Water Company, or tbe individual defendants, or all of them together, would request tbe said trustee to so declare tbe default and tbe entire principal of said bonds due and payable, and in pursuance thereof tbe said trustee act, to tbe great and irreparable injury of this plaintiff, for which it has no adequate remedy at law, and no adequate remedy except tbe restraining order of this court.”

Tbe petition further alleges that tbe defendant light company, or tbe individual stockholders, are tbe owners of said bonds, and that they are indebted to tbe plaintiff in an amount far in excess of tbe amount due as interest, for the reason theretofore stated, and therefore there is nothing due tbe defendants, and no right exists to declare a default for nonpayment of interest, and that neither tbe trustee nor any of tbe defendants has any legal right to declare a default.

Prayer that plaintiff bave judgment against each of tbe defendants, except tbe West Texas Bank & Trust Company, for the sum of $4,265.40, with legal interest and costs of action, and tbe interest due on bonds held by tbe defendants, as paid out of said judgment ; also for judgment against each of the said defendants except tbe West Texas Bank & Trust Company, in favor of plaintiff, directing tbe delivery to plaintiff of 11% per cent, of tbe $46,000 of bonds, or, in tbe event they bave sold the said bonds, so that they could not be called in and canceled, that then a personal judgment against said corporation, and tbe individual defendants, for the face value of tbe bonds.

Plaintiff further prayed for a temporary writ of injunction, restraining tbe individual defendants from requesting tbe trustee, tbe West Texas Bank & Trust Company, to declare a default of said bonds and deed of trust, or either of them for nonpayment of interest, and for a like injunction against tbe West Texas Bank & Trust Company from declaring a default of said bonds and deed of trust, or declaring the principal of said bonds to be due and payable, either at the request of tbe bolder of said bonds, or by its own power, under tbe terms of said deed of trust or bonds, during the pendency of this action, and that on final hearing said injunction be perpetuated. Upon this petition the district judge in chambers indorsed his fiat ordering the clerk of that court to issue notice to all the defendants to be and appear before him on Monday, October 18, 1909, at 11 o’clock a. m., to show cause why such temporary writ of injunction should not be issued, as prayed for in said petition. The hearing on this application was postponed by agreement of counsel. In this agreement it was stipulated that the “hearing on the restraining order heretofore issued herein shall be continued to and taken up on the hearing of the merits of the case, and that the said order as now existing shall be in full force and effect until such time and until the future order of this court.” And on the 7th day of December, 1909, the defendants El Campo Light, Ice & Water Company and the individual stockholders filed a joint answer, containing a special exception to the jurisdiction of the court over their persons; also containing a general demurrer and special exceptions to plaintiff’s petition; also a general denial, and specially pleading facts under oath tending to negative all the material allegations of each paragraph of plaintiff’s petition. At the same time of filing this answer, defendant El Campo Light, Ice & Water Company and the individual defendants filed separate pleas of personal privilege. On December 20, 1909, the case came up before the district court of Bexar county, and that court, upon hearing the exception and pleas to the jurisdiction, sustained same, and transferred the case to the district court of Wharton county.

No further action was taken in this cause until July 15, 1910, when the judge of the Twenty-Third judicial district, in chambers, at Bay City, Tex., heard the motion of appellants to dismiss the plaintiff’s petition, and also heard said petition and answer, and the affidavits in support thereof, and rendered judgment overruling said motion, and also overruling the demurrer and exceptions of •defendants, and granting said application for injunction. The defendants have appealed.

Counsel for appellee contends that the stipulation in the agreement for postponement •of a hearing of the application for injunction, above quoted, operated as a restraining order, and that the subsequent proceedings after the venue of the action had been changed to Wharton county was nothing more than a motion to dissolve such injunction, from which an appeal does not lie. The only order made in the proceedings by the district court of Bexar county prior to the order ■changing the venue was one setting a date for hearing of the application for injunction. The only order of either court granting an injunction is the one appealed from. The answer filed by appellants in the district court of Wharton county was in the nature of a motion to “dismiss the petition for injunction applied for herein and to dissolve the temporary restraining order, alleged in a certain agreement to have been heretofore issued herein.” The language in which the agreement was couched was evidently induced by a mistaken belief on the part of all the parties to the agreement that a temporary restraining order had theretofore been granted by the district court of Bexar county. That no such order was made is shown by the entire record, and that the parties did not intend that the agreement should have the force and effect of an injunction is evidenced by the action of the district judge in granting the temporary injunction appealed from without in any way referring to the supposed former order or to the agreement itself. To this we may add that the appellants in the proceedings in the court below stated in their sworn pleadings that no such order had theretofore been granted, and that the language of the agreement was the result of inadvertence or mistake, and this was not denied by appellee.

Appellants’ first assignment of error is as follows: “The court erred in overruling the general demurrer to said bill, because said bill on its face showed no proper ground for the equitable relief prayed for; nor did it allege any facts showing that the defendants were threatenting to, or about to commit, the wrongs complained of in said bill, and also failed to allege any facts to show whereby it would sustain irreparable injury, if the acts complained of were done by defendants.” Appellant in its first proposition contends that, when a bill for injunction in its entirety fails to show any sufficient ground for the interposition of a court of equity in the exercise of the extraordinary remedy by injunction, it should be dismissed. We concede the accuracy of the principle stated, but cannot agree that the bill of appellee was not sufficient as against a general demurrer. The allegations of the bill, which, as against the demurrer, must be taken as true, are to the effect that, while the appellee owes the appellant the amount of interest accrued on the bonds, the appellant owed the appellee a sum for repairs, etc., of the machinery sold, which was more than sufficient to offset the interest, and that, therefore, nothing was due to the appellee, but notwithstanding which appel-lee had reason to believe, and did believe and charged, that appellant would, by reason of the nonpayment by appellee of the interest as such, declare all the bonds given for the payment of the plant matured, and cause the trustee to foreclose by sale of the plant.

The second assignment complains of the refusal of the court to sustain appellant’s fifth special exception to the petition, wherein it is urged that the petition is insufficient in law to show any ground for equitable relief by injunction, because it appears therefrom that the individual stockholders of the defendant company made and delivered to plaintiff their bond in the sum of $6,000, whereby they guaranteed plaintiff that the defendant company would put said property and machinery in good condition and working order as soon as practicable, and that, if plaintiff had sustained loss and damage by reason of any portion of said machinery failing to operate, plaintiff has an adequate legal remedy on the bond. It is true that, after appellee had caused the machinery to be put in repair and good working order, it could have looked to the bondsmen for reimbursement. But we do not know of any principle of law that would require the ap-pellee to look to the bondsmen alone, and, because of their undertaking, relieve appellant of liability upon its promise to make such repairs. The appellant was primarily responsible to appellee for the cost of repairs, and when it failed to keep its agreement in that regard, and when in consequence the repairs were made by appellee, the appellant became responsible and liable to pay to appellee the reasonable cost of the same, and, if at that time appellee was due and owing appellant interest upon the bonds in a less sum than the latter was owing the former for repairs, we see no reason why the lesser amount should not have been offset by the larger and payment made in that way. At least we see no reason why a refusal to pay the interest on the bonds at a time when the amount of the same was less than the sum alleged by appellee to be due it for repairs, and which was urged in the bill as an offset, should be such a breach of the obligation of the trust deed and bonds to pay the interest semiannually as would justify the trustee to declare the bonds, which by their terms did not mature for 20 years from their date, to be due and payable immediately. The injury which appel-lee was seeking 'by the injunction to avoid was the declaring that the principal of the 20-year bonds should be due at once, and this it could not have prevented if, in fact, as contended by appellant, recourse could be had only upon the bond given by appellee to guarantee the cost of repairs. An action upon the bond might be an adequate remedy for the collection of the cost of repairs, but not adequate to prevent a declaration of the maturity of the 20-year bonds pending an action upon the bond. As said in Sumner v. Crawford, 91 Tex. 132, 41 S. W. 995: “In courts administering both law and equity, like ours, the rules denying injunction when there is a remedy at law should not be applied as rigidly as at common law, where the issuance of the writ in equity was, to a certain extent, an invasion of the jurisdiction of another tribunal. If, as here, the appellant shows a clear right to be left in the undisturbed possession of certain property and that such right is about to be invaded without semblance of right by another, such an invasion, on principle, should be prevented in its incipiency by injunction, instead of allowing the injury to be inflicted, and then leaving the party to his legally adequate, but in fact very generally inadequate, remedy for an action for damages.”

From the pleadings we deduce the following : Bonds in the sum of $46,000, dated December 19, 1908, bearing interest at the rate of 6 per cent, per annum from date, payable semiannually, and secured by a mortgage upon the property and franchise of the Water & Eight Company of El Campo are owned by the appellant. With the exception of $600, the interest has not been paid. The interest accrued and that which will accrue up to January 1, 1911, deducting the payment of the amount above stated, will amount to $4,-920. The items claimed by appellee in offset to this sum, including the cost of repairs, etc., and the further item of $2,000 damages, and the value of the gas producer and gas producer engine “with the cost of installation, freight and motor attached” amount to $8,185.65. If all the items stated could be allowed, we see no good reason why the appellant should not be enjoined from proceeding to have the bonds declared due and the mortgage securing the same foreclosed until such time as the interest to accrue upon the bonds would equal the amount of appellee’s claim, when by process of cancellation the claims of each against the other would be discharged. But we do not think the petition sufficiently shows that appellee is entitled to charge the value of the gas producer and gas producer engine to appellant, for it is clearly alleged that appellee purchased the same with the plant from appellant, and that the title thereto passed by the sale. Nor is it shown that appellee did not receive the gas producer and engine with the other property purchased, nor are any facts stated to show liability of appellant for their value. The cost of installation was to be borhe by appellant, but this cost is not stated in the petition separately from the value of the producer and engine, and we are without means to tell what amount this was. For aught that appears in the petition, appellee now has the producer and engine in its possession, claiming and owning the title by virtue of its purchase. Clearly then the value of the producer and engine should not in view of this state of the pleadings be allowed in offset to interest accrued and to accrue; nor do the facts stated show appellee to be entitled to a cancellation of bonds in the proportion that the gas producer and engin& bears to the entire property for which the bonds were given in payment; and, inasmuch as there is no allegation of the cost of installation separately from the value of the producer and engine, no basis is stated for an offset of such cost as against the interest. The elimination of these items leaves the several items above stated, which amount to $4,265.-40. As before shown, the interest that will have accrued upon the bonds by January 1, 1911, will amount to more than the sum that can be allowed under the pleadings in offset, and we think that the ends of justice will be fully met by preventing a declaration of default of the bonds for any interest that may accrue prior to that time.

Appellee did not execute and file with the clerk of the court below a bond for injunction, nor did the district judge who granted the writ fix the amount of the bond to be executed as a condition precedent to the issuance of the writ. This was error, and appellants’ assignment raising the point must be sustained. Rev. St. 1895, art. 2997. But in the view we take, this error, In our opinion, does not necessitate the reversal of the judgment and remanding the case for a new trial, but that this court, having the case before it, can, when the petition states grounds for relief by injunction, make and enter such orders and judgment as should have been rendered by the court below. It is therefore the judgment of this court that upon the appellee executing a bond in the sum of $10,-000 within 15 days from the 10th day of November, 1910, payable and conditioned as required by law, to be approved by the clerk of the district court of Wharton county, the injunction heretofore granted by the district judge in chambers be continued in force in so far as it restrains the appellants from requesting the trustee, the West Texas Bank & Trust Company, from declaring a default of said bonds and deed of trust for nonpayment of interest accrued and to accrue on said bonds on or before the 1st day of January, A. D. 1911, unless the suit now pending in the court below shall be sooner finally determined and in so far as it restrains the said trustee, its officers, and agents from declaring a default because of the nonpayment of such interest accrued and to accrue on or before said date unless said suit shall be finally determined before then. The judgment appealed from as reformed is affirmed.

Reformed and affirmed.

On Appellants’ Motion for Rehearing.

Appellant in its motion for a rehearing insists that we pass upon certain assignments of error presented in its brief based upon the refusal of the district judge to sustain certain special exceptions urged by it to plaintiff’s petition, and especially the ninth assignment, which complains of the action of the lower court in overruling appellant’s special exception to the paragraph of the petition wherein plaintiff claims damages in the sum of $2,000, which it claimed it lost because of its inability to do the volume of business it would have done had appellant made the repairs of machinery it agreed to make. All these exceptions were urged before the judge in chambers, and at a time when the only question properly before him was whether he should grant an injunction upon the verified pleadings of plaintiff and the answer and controverting affidavits presented by defendant. Manifestly the special exceptions could not have been acted upon except by the court, and could not with propriety have been passed upon by the judge in chambers. The time for such action was not then present. It was upon these considerations that this court did not pass upon said assignments.

Nothing in our opinion should be taken as indicating any conclusion of this court upon the merits of said special exception.

The motion for a rehearing is refused.  