On Motion for Rehearing.
We have carefully considered the motion and note the contention made: (1) That we erred in going into the facts and deciding the case on them, since our only duty was to determine whether the trial court was authorized in concluding that the writ should not be dissolved, or whether he abused his discretion in refusing to dissolve it; (2) and that this court failed to recognize the distinction made by the authorities between mere silence on the part of a party to a contract, when he is under no obligation to disclose certain facts known to him and unknown to the other party, and positive misrepresentations as to such facts.
[4] We recognize the rule to be that it is not the province of an appellate court to pass upon the merits of the case on an appeal from a temporary injunction or from a refusal to dissolve a temporary injunction. We appreciate this rule, but it seems to us in the consideration of this case on original hearing that the facts did not show a reasonable ground upon which the trial court, in the exercise of his admitted discretion, should have refused to dissolve the writ. Only so far did we intend to go, and our opinion on original hearing is to be so construed. We did conclude that the balance of convenience was with the appellants, and that under the facts shown they would likely have been more injured by the continuance of the injunction than the appellees would have been by the failure to continue it. As to whether in a trial on the merits plaintiffs or defendants below should prevail, we express no opinion.
The motion for rehearing is overruled.