#### EPHRAIM CLAYTON against JOHN LYLE, ADM’R.

Where a bill for an injunction is answered by the administrator of one who is alleged to have been a party to an equitable contract, and such administrator says, that he is ignorant of the facts alleged in the bill, but that he has understood and believes them to be totally different from those alleged, and such statement is strengthened by some of the allegations in the bill itself and appears probable and consistent-, the injunction will be dissolved.

Where a memorandum of an agreement, made at the time when an absolute note was given, and the attendant circumstances show that such note was not to be absolute in reality, but was only to be collected on a contingency which has never happened, a Court of Equity will relieve against it

*189This cause lias been twice before this Court; first, upon an Appeal from an order of tbe Court of Equity of Burke County at tbe Spring Term, 1852, bis Honor Judge Dicic presiding, continuing tbe injunction (heretofore granted) to tbe bearing.

Tire motion to dissolve was made upon tbe coming in of tbe answer, and was considered upon tbe bill, answer and exhibits filed, tbe substance of which is sufficiently set forth in the following opinion of tbe Court delivered by tbe Chief Justice.

IU. W. Woodfim, for plaintiff.

Av&ry and T. R. Oaldwell, for tbe defendants.

ISTasii, C. J.

Tbe bill charges that the plaintiff and Samuel A. Lyle jointly undertook and did erect a certain public building in tbe State of Georgia, in tbe County of Lumpkin, for and at tbe price of $6850, and for additional work they were to be paid the additional sum of $1120 : that tbe Inferior Court of tbe said County bad full power to make such a contract, but their power, as to taxation to raise tbe necessary funds, is limited : Tbe bill further alleges that, upon tbe completion of tbe work, tbe plaintiff and S. A. Lyle bad a settlement, when it was ascertained, upon an adjustment of their accounts, that the sum due tbe latter was $4319, for which tbe plaintiff gave bis bond, absolute upon its face, but that it was agreed, by a written paper executed by tbe said S. A. Lyle at tbe same time, that it was to be paid when received from tbe County of Lumpkin. This bond and the agreement Avere dated on tbe 8th day of September, 1841. Tbe bill then charges, that tbe Inferior Court of Lumpkin County, though frequently applied to, refused to pay for tbe building erected, upon tbe ground that their authority to levy taxes is, by law', limited, and that they have gone to tbe limit of their power in that respect, and that plaintiff has been advised that be cannot compel payment from tbe Court.

S. A. Lyle is dead, and tbe defendant, John Lyle, is bis duly appointed administrator, and has endorsed this bond to the *190other defendant, R. C. .Pearson, for the purpose of enabling the latter to sue in this State, and accordingly an action was brought against him on this bond, to the Spring Term, 1850, of Burke Superior Court, and judgment obtained against him for the sum of $6988 63.

The prayer is for an Injunction and for general relief.

The answer of the defendant Lyle states, that, of his own knowledge, he knows nothing of the contract between plaintiff and his intestate, but that he has understood and believes that the contract for erecting the building in Lumpkin was made by the plaintiff on liis own account; that his intestate was employed by him to do the masonry and was not a partner in the contract; that at the ■ time of the settlement in 1841 between the parties, the plaintiff gave his bond to the intestate for the sum that-was due him for his portion of the work, and the intestate, at the same time, executed the paper set forth in the bill. The answer further alleges that the complainant and S. A. Lyle did make a joint contract with commissioners, duly appointed for that purpose, for building a court-house and jail in Lenoir, and a similar contract to build a house in the same place for 'William Davenport, and that he is informed and believes that the complainant has not used duo diligence in collecting his claim in Georgia; that he might, by a writ of mandamus, have enforced the collection of what was due from the County of Lumpkin. It admits the obtaining the judgment, and avers that all the payments which have been made, either to him or his intestate, are properly credited on the bond, and allowed in taking the judgment. Injunction was continued to the hearing, and the defendant appealed.

The sole ground upon which the plaintiff can rest his application for relief, is, that he and the intestate, Samuel A. Lyle, were jointly concerned in the contract made for the building of the jail of Lumpkin County. If they were so jointly concerned, the defendant ought not to be permitted to force the money out of the plaintiff until he had collected it; upon no principles of equity would it be allowed. The answer, as far *191as it can, denies that sucli was tlie fact, and the statements of the Rill strongly sustain it. When the work was completed, tire parties had a final settlement, and the plaintiff gave to defendant’s intestate his bond to pay him the sum mentioned to be due him. It may be asked, if they were joint contractors to the work, then the County of Lumpkin owed to the intestate what was due him and not the plaintiff, and how came the plaintiff to give his bond, thereby acknowledging that he owed the money ? That could not be, unless he had received it, which is not pretended, nor does the memorandum or paper, executed by the defendant, alter the case; the language of the paper is, “it was agreed that Samuel A. Lyle would receive the money due him from said Clayton as he collected it from Lumpkin Co., Georgia, provided he uses the lawful means to collect the money without delay.” How, this very paper, which is produced by the plaintiff, says expressly that the money was due the intestate from the plaintiff; so far from showing that the intestate was a joint contractor with the plaintiff, it is strong evidence to the contrary.

But further: though the bill charges a partnership in the work, it says not one word as to the terms. Again, as to the memorandum ; it only says to the plaintiff, “ if you will, without delay, use lawful means to collect what is due you, I will not press you for the money ; ” but it no where says, or intimates, if Clayton could not get it out of the County, that the intestate was to lose his money. Uo such thing. “ I will receive my money as yon receive it, provided you use the proper means.” The only effect of the paper was to give the plaintiff a reasonable time to collect the money due him. He has waited ten years, the bond is dated September, 1841, and the bill is filed September, 1851. But the very ground upon which the delay was granted is taken away by the bill; it states that the County of Lumpkin has refused to pay, and that he is advised that they cannot be compelled. Why wait any longer ? But further than this: the answer sets forth that several other building contracts wrere made between the intes*192tate and the complainant, and were so expressed; why was not this contract so expressed, if such was the fact?

Upon the whole, we consider the answer of the defendant Lyle as fully responsive to the hill, and that it answers its equity. The answer of Pearson is merely formal.

Per Curiam. The interlocutory order of the Court below is erroneous, and, therefore, reversed.

The bill was continued over in the Court below as an original bill; replication was made to the answer, and proofs taken. The cause was set down for hearing, and sent to this Court again by consent. The substance of the evidence is recited in the opinion of the Court.

Same counsel as before.

Pearsou, J.

"When this question was before us, upon the bill, answer and exhibits, on the motion to dissolve the injunction, we were of opinion that the equity of the bill wras fully and fairly met by the answer, and that the exhibits, viz: the note and the written agreement that “ Samuel A. Lyle would receive the money as Clayton collected it from the County of Lumpkin, Georgia, provided due diligence was used, &c.,” tended to repel the plaintiffs equity.

The case was continued over as an original bill, upon replication to the answer, and is now before us upon the bill, answer, exhibits and proofs taken. So the question is, does the evidence alter the case ?

The depositions of George Clayton, B. Smith and L. Sawyer, although they do not prove a co-partnership in its legal and technical sense, prove clearly that the bids were made and the work was done — Clayton doing the wood-work and Lyle the brick-work — upon an understanding that although, for certain reasons which it is not necessary to set out, the contract was taken in the name of Clayton, and at his bid, and Lyle signed the bond as his surety, yet in point of fact, although not partners, they were jointly concerned in the con *193 tract, in this way: Clayton was to do the wood-work at certain prices; Lyle was to do the brick-work at certain prices agreed on between them, as the basis upon which Clayton was to put in a bid, and, if be got the contract, be and Lyle were to be jointly concerned in doing the work at the prices previously agreed on, and were to look to the Comity of Lumpkin for their pay : so that if the County failed to pay, or there was any delay and difficulty in making the collections, the inconvenience and the ultimate loss, if any, were to be shared equally between them; because in this, as in many other building contracts, they found it to their mutual advantage to be jointly concerned.

The note, on which judgment at Law has been rendered, with the explanation given by the testimony of the witnesses, and the light thrown on the case by the other evidence and the conduct of the parties, (for instance, the fact that Lyle was on his way to Georgia, in the journey upon which he died, on purpose, as he told Sawyer, to try and collect a claim in which he and Clayton were jointly interested) was, therefore, in fact and substance, nothing more than a written memorail-dum, as is charged in the bill, for the purpose of showing how the balance stood at that time between the parties; and the agreement, that Lyle was not to be paid until Clayton got the money from the County of Lumpkin, was made, to show that the note was not to be taken as strongly as its words might import.

Upon full consideration of the pleadings, exhibits and proofs, we are satisfied that the parties were jointly interested in the contract, and if there is to be any loss ultimately, from the Tcp'u.diation or refusal of the County of Lumpkin to raise the necessary amount by taxes, or otherwise, the loss should be equally divided between them, for the parties have furnished no mode of ascertaining the relative value of the “ wood and the brick-work,” and the testimony shows there is but little difference.

Upon the plaintiff’s assigning to the defendant one-half of the claims which remain unpaid and unsatisfied, with power *194to use his name in the collection of the same, &c., he is entitled to a credit for that amount upon the judgment, or to a decree to recover the same if it has been paid on the judgment. To fix the amount, if desired, a reference •will be made to the Clerk.

Ho decree for costs on either side.

Pee Cueiam. Decree accordingly.