#### TOBACCO GROWERS CO-OPERATIVE ASSOCIATION v. JOHN BATTLE.

(Filed 27 February, 1924.)

1. Constitutional Law — Statutes—Co-operative Marketing.

A cooperative association formed under tbe provisions of chapter 87, Public Laws of 1921, whereby its members agree to sell and deliver to it all of the tobacco owned and produced by or for him or acquired by him as landlord or tenant, being, among other things, for the purpose of steadying the market and enabling the member to obtain a proper price for his tobacco and compensate him for his labor, skill, etc., exists by virtue of a constitutional statute, and the provisions of its standard contract with its members are valid and enforceable.

2. Equity — Specific Performance — Contracts—Personal Property — Vendor and Purchaser — Co-operative Marketing.

Injuries from the breach of contract by a member with the Cooperative Tobacco Marketing Association, formed under the provisions of chapter 87, Public Laws of 1921, to market his tobacco, etc., cannot be adequately compensated for in damages, and the equitable remedy of specific performance as allowed by the statute will be upheld by the courts.

3. Injunction — Co-operative Marketing — Contracts—Equity—Evidence.

Where in the suit of a tobacco marketing association for injunctive relief against the defendant for breaching his contract to market his tobacco with it according to its terms, he resists upon the ground that he had not become a member, and the plaintiff’s evidence tends strongly to show to the contrary: Held, the injunction should be continued to the *261hearing upon the principle that the plaintiff has established an apparent right to the relief sought, and that the writ is reasonably necessary to protect the property pending the inquiry. * .

4. Injunction — Appeal and Error — Evidence—Findings—Review.

On appeal from the denial of the continuance of a restraining order the facts as found by the Superior Court judge are not conclusive on the Supreme Court, and the latter may review the evidence appearing in the record.

Civil actioN beard on. return to preliminary restraining order before bis Honor, Connor, J., in chambers at Rocky Mount, on 3 December, 1923.

Tbe action is to obtain a permanent injunction forbidding defendant to dispose of bis tobacco crop for 1922, etc., in violation of bis contract as member of plaintiff association. Tbe case being beard on affidavits and evidence, tbe court dissolved tbe restraining order, finding, among other things, that defendant was not a member of plaintiff association. Plaintiff excepted and appealed.

Burgess & Joyner and Henry C. Bourne for plaintiff.

A. Sapiro, E. L. Hayes, and T. E. Bowen of counsel for plaintiff.

Thorne & Thorne for defendant.

Hoke, J.

It appears from tbe pleadings and evidence in tbe cause that plaintiff is an association duly organized under chapter 87, Laws of 1921, having a standard form of contract by which its members respectively agree to sell and deliver to tbe association “all of tbe tobacco produced by or for him or acquired by him as landlord or lessor during tbe years 1922, 23, 24, 25, 26,” etc., and for tbe professed purpose of steadying the market and enabling' tbe member to obtain a proper price for bis tobacco and a proper compensation for bis labor and skill in producing it. In tbe recent case of Coőperative Assn. v. Jones, 185 N. C., 265, where tbe questions were fully considered, it was held that tbe act was constitutional, and tbe associations formed under it and tbe contracts as made by them with members were valid and enforceable, and that tbe remedy of injunction was properly available to tbe companies when necessary to a proper enforcement of their rights under tbe contracts made with its members.

Not' only is a preliminary injunction expressly authorized by tbe statute and stipulated for in tbe contract itself, but it is clear from a proper consideration of tbe entire agreement, its nature, terms and purpose, that specific performance is required for its proper and adequate enforcement, and that an injunction will lie whenever it is shown to be reasonably necessary to conserve tbe property and tbe rights of plaintiff therein pending litigation.

*262True, as a general rule, specific performance is not allowed in contracts foi\sale and delivery of personal property, but tbe position does not prevail when it appears that a failure to deliver will frustrate tbe essential purpose of tbe contract, and tbe award of damages will prove entirely inadequate to compensate tbe injured party. Tbis in effect was beld in Coőperative Assn. v. Jones, supra, and cases cited, notably Oregon Coőp. Association v. Lentz et al., 212 Pacific, 811; and is in accord witb recognized principles applicable in sucb cases. Zeiger v. Stephenson, 153 N. C., 528; Ellett v. Newman, 92 N. C., 519; McGowin v. Remington, 12 Pa. St., 56; Pomeroy on Contracts, secs. 10, 11 and 12, and note 1 to sec. 11; 1 Joyce on Injunctions, sec. 444.

Plaintiff company, then, having a right to an injunction against its members who threaten to break their contract to tbe destruction or serious impairment of plaintiff’s rights thereunder, and defendant denying bis membership and avowing bis purpose and bis right to dispose of bis tobacco elsewhere, tbe question presented is chiefly dependent upon tbe fact of plaintiff’s membership, and considering tbe case in that aspect, our decisions are to tbe effect that an injunction should be continued to tbe bearing when a plaintiff has established an apparent right to property and tbe writ is reasonably necessary to protect and preserve sucb rights pending tbe inquiry. Cain v. Rouse, 186 N. C., 176; Johnson v. Jones, 186 N. C., 235; Yellow Cab Co. v. Creasman, 185 N. C., 551; Proctor v. Fertilizer Works, 183 N. C., 153; Seip v. Wright, 173 N. C., 14; Tise v. Whitaker, 144 N. C., 508; Cobb v. Clegg, 137 N. C., 153.

In Proctor’s case, supra, it is beld: “Where tbe plaintiff, applying for injunctive relief as tbe main remedy sought in bis action, has shown probable cause, or it is made to appear that be will be able to make out bis case at tbe final bearing, or where tbe dissolution of tbe temporary restraining order would probably work him irreparable injury, it should be continued to tbe final bearing.”

In Cobb v. Glegg, at page 159, Associate Justice Walker, delivering tbe opinion, said: “In tbe case of special injunctions tbe rule is not to dissolve upon tbe coming in of tbe answer, even though it may deny tbe equity, but to continue tbe injunction to tbe bearing if there is probable cause for supposing that tbe plaintiff will be able to maintain bis primary equity and there is a reasonable apprehension of irreparable loss unless it remains in force, or if, in tbe opinion of tbe court, it appears reasonably necessary to protect tbe plaintiff’s right until tbe controversy between him and tbe defendant can be determined.”

And in Tise v. Whitaker, supra, it was beld, among other things: “When tbe main purpose of an action .is to obtain a permanent injunction, if tbe evidence raises a serious question as to tbe existence of facts *263wbiob make for plaintiff’s right and are sufficient to establish it, a preliminary restraining order will be continued to the hearing.”

Applying these principles, we do not take the same view of the facts presented as seems to have impressed the court below. It appearing that the accredited representative of plaintiff swears that defendant signed the standard contract subject to the approval of his landlord, and that the landlord approved the same; that landlord swears that he was consulted by defendant and that he did approve it; and two ■ or more distinterested witnesses testify that defendant admitted to them that he had become a member. "

True, the defendant himself swears that he joined subject to the approval of his landlord and his supply merchant, and that the latter, who has since died, never gave his approval, and defendant’s wife swears that her husband told her he had not joined, and his Honor finds the facts to be as claimed by defendant. But this finding by his Honor is evidential only and not conclusive, and the decisions are that on a hearing of this character the Court will determine for itself the facts upon which it will act, and on consideration of the entire evidence we are of opinion that there is such serious question as to the rights of the parties involved in this controversy that the restraining order should be continued till they are determined at the final hearing, and the judgment of the lower court dissolving the same pending litigation be and the same is hereby

Reversed.