American courts are few, and do not show that they have as yet adopted all of the foregoing distinctions established by the modern English judges.(1)

SEC. 24. Enforcement by injunction. - Another class of contracts stipulating for personal acts are now enforced in England by means of an injunction. Where one person agrees to render personal services to another, which require and presuppose a special knowledge, skill, and ability in the employe, so that, in case of a default, the same services could not easily be obtained from others, although the affirmative specific performance of the contract is beyond the power of the court, its performance will be negatively enforced by enjoining its breach. This doctrine applies especially to contracts made by actors, public singers, artists and others possessing a special skill and ability. It is plain that the principle on which it rests is the same with that which applies to agreements for the purchase of land or of chattels having a unique character and value. The damages for the breach of such contracts cannot be estimated with any certainty, and the employer cannot, by means of any damages, purchase the same services in the labor market. In the leading case, which first established this doctrine, an artist agreed to sing at the plaintiff's theatre, and not to sing at any other during the term of the engagement. The court, conceding that it could not enforce the affirmative stipulation, granted an injunction restraining the defendant from singing elsewhere than at the plaintiff's opera house.(2) The rule has since been extended to cases in which the contract contained no negative stipulation, and it is now settled that such a negative clause is not a necessary prerequisite to the exercise of the jurisdiction.(3)

(1) While the jurisdiction to compel performance of such contracts has been exercised, it has not been systematized and reduced to definite rules, as in England. In Stuyvesant v. Mayor of N. Y. 11 Paige, 414, an agreement to open a drain through defendant's land was enforced; Birchett v. Bolling, 5 Munf. 442, a contract to build a tavern, at the joint risk and expense, and for the joint benefit of the parties, was enforced at the suit of the plaintiff, who furnished the land on which it was to be erected, and had performed his part, the defendants objecting on the ground that a change in the circumstances had made the scheme unadvisable. In Whitney v. New Haven, 23 Conn. 624, New Haven had agreed to buy from the plaintiff certain land, and water of Mill river sufficient to supply the city with pure water, and agreed to pay $50,000, and to erect a dam and canal to conduct surplus water for plaintiff's use. Specific performance was refused, on the ground that plaintiff had not parted with the land and possession, and consequently had means of complete redress at law.

(2) Lumley v. Wagner, 1 De G., M. & G. 604, per Lord ST. LEONARDS. See Fechter v. Montgomery, 33 Beav. 22; Catt v. Tourle, L. R. 4 Ch. 654.

(3) Webster v. Dillon, 3 Jur. (N. S.) 432; Montague v. Flockton, L. R. 16 Eq. 189.

The American courts, which exhibit a strange disinclination to apply the preventive remedy of injunction to any enlarged uses, have not hitherto followed these modern English authorities, and refuse to enforce the performance of such personal contracts, either negatively or affirmatively.(1)

SEC. 25. The doctrine of specifically enforcing negative contracts by injunction is well established in England, and has been partially adopted by the courts of this country. An agreement that the party will not do certain specified acts-especially if these prohibited acts relate to, or interfere with, property rights or business interests of the obligee-will be specifically enforced in a negative manner by enjoining a commission of the acts, whenever damages would be inadequate, or the basis for their computation would be wholly speculative, conjectural, or uncertain. The rule has been applied in the following instances, among others, in which the parties have been restrained from doing the acts described contrary to their stipulations. An agreement not to ring a bell; (2) an agreement not to carry on a trade;(3) or, not to carry on a certain trade in a place or district specified;(4) an agreement not to erect buildings;(5) or, not to erect buildings above a certain height;(6) an agreement not to make application to Parliament for or against some private bill;(7) an agreement by a railway company not to run any of its

(1) Sanquirico v. Bennedetti, 1 Barb. 315; Hamblin v. Dinneford, 2 Edw. Ch. 529; De Rivafinoli v. Corsetti, 4 Paige, 270; De Pol v. Sohlke, 7 Roberts, 280. But see Hayes v. Willio, 11 Abb. Pr. (N. S.) 167; McClurg's Appeal, 58 Pa. St. 51; Brown's Appeal, 62 Pa. St. 17; Machette v. Hodges, 6 Phila. 296; Gillis v. Hall, 2 Brews. 342.

(2) Martin v. Nutkin, 2 P. Wms. 266.

(3) Barret v. Blagrave, 5 Ves. 555; 6 Ves. 104; Williams v. Williams, 2 Sw. 253; 3 Mer. 157; Shackle v. Baker, 14 Ves. 468; Cruttwell v. Lye, 17 Ves. 335; Newberry v. James, 2 Mer. 446; Harrison v. Gardner, 2 Madd. 198.

(4) Clements v. Welles, L. R. 1 Eq. 200; Clarkson v. Edge, 12 W. R. (M. R.) 518; Feilden v. Slater, L. R. 7 Eq. 523; Jones v. Bone, L. R. 9 Eq. 674; Carter v. Williams, L. R. 9 Eq. 678. Even when the party was an infant, if he had represented himself as adult. Cornwall v. Hawkins, 41 L. J. (N. S.) 435, Jones v. Heavens, L. R. 4 Ch. D. 636; Catt v. Tourle, L. R. 4 Ch. 654. Covenant by purchaser that vendor, a brewer, his heirs and assigns, should have the exclusive right of supplying beer to any public house erected or opened on the land, enforced.

(5) Rankin v. Huskisson, 4 Sim. 13.

(6) Lloyd v. London, Chatham & D. R'y Co., 2 DeG., J. & S. 568; Bowes v. Law, L. R. 9 Eq. 636.

(7) Ware v. Grand Junction Waterworks Co., 2 R. & My. 470, 483; Heathcote v. North Staffordshire R'y Co., 2 Mac. & G. 100; Lancaster, etc. R'y Co. v. North Western R'y Co., 2 K. & J. 293; and see Taylor v. Davis, 3 Beav. 388, note.

ordinary or fast trains other than mail, express, or special trains -past a certain station without stopping for passengers to get on or to alight;(1) an agreement in a separation deed between husband and wife that the children should attend such schools as their father should choose, and should spend their holidays where the trustees should direct, the trustees directing that they should spend one-half of the holidays with their father and the rest with their mother; (2) and to restrain an infringement of a charter-party.(3)

(1) Hood v. North Eastern R'y Co., L. R. 8 Eq. 666; 5 Ch. 525; Rigby v. Great Western R'y Co., 2 Ph. 44; 15 L. J. (N. S.) 266; Phillips v. Great Western R'y Co., L. R. 7 Ch. 409; 20 W. R. 562.

(2) Hamilton v. Hector, L. R. 6 Ch. 701. The husband refusing to allow the children to visit the mother, and taking them to his own house entirely, he was restrained from interfering with their passing such time with the mother as the trustees should direct. While the father could not, by agreement, deprive himself of all control over his children, this bargain was reasonable and should be enforced. The following are some recent American cases upon the doctrine discussed in the text. The contract has been enforced by injunction in Gillis v. Hall, 2 Brews. (Pa.) 342 (a negative covenant); Manhattan Manuf., etc., Co. v. New Jersey Stock, etc. Co., 23 N. J. Eq. 161; Manhattan, etc. Co. v. Van Keuren, ib. 251; Haskell v. Wright, ib. 389; Parker v. Garrison, 61 Ill. 250 (a contract to sell personal property, enforced by injunction under special circumstances); Berger v. Armstrong, 41 Iowa, 447, and Spicer v. Hoop, 51 Ind. 365 (both of these cases were of contracts not to engage in a trade); Richardson v. Peacock, 26 N. J. Eq. 40, and see Harkinson's Appeal, 78 Pa. St. 196 (contracts not to engage in trade); Frank v. Brunneman, 8 W. Va. 462 (a lessee restrained from breaking covenants of his lease); and see Agate v. Lowenbein, 4 Daly, 62; Singer's Manuf. Co. v. Union Buttonhole, etc. Co., 6 Fisher's Pat. Cas. 480. In McArthur v. Ashmead, 2 Brews 533, the vendee in a land contract was enjoined in aid of the vendor's right to a specific performance; Barnes v. Barnes, 65 N. C. 261; Steward v. Winter, 4 Sandf. Ch. 587. In the following cases an injunction was refused; the refusal, however, being based upon the nature of the contract as not being one which equity could enforce at all, or upon the circumstances of the case, and not upon the absence of power to enforce by injunction. In Caswell v. Gibbs, 33 Mich. 331, an agreement “never to tow vessels in competition with " plaintiff, was very properly held not to be enforceable by injunction (1), because it was too uncertain and indefinite, and (2), because every case of alleged breach would require a separate investigation of fact, in order to ascertain whether there had been an actual violation. In Hahn v. Concordia Soc., 42 Md. 460, a contract was secured by what the court decided to be a stipulation for liquidated damages, and not a penalty. Held, therefore, that the court would not enforce by injunction, but would leave the plaintiff to his action for the damages. Hile v. Davison, 20 N. J. Eq. 228. Held, that, under the facts, the vendor in a land contract should not be enjoined from collecting the securities given him for the price. See, alsó, Gregg v. Landis, 21 N. J. Eq. 494.

(3) DeMattos v. Gibson, 4 DeG. & J. 276; Seawell v. Webster, 7 W. R. 691; Messageries Imperiales Co. v. Baines, 11 W. R. 322; Jervin v, Deshandes, L. R. 3 Ch. 457.

But the court will not interfere to restrain the breach of such a stipu lation where it is merely ancillary to a more general contract, which cannot be specifically enforced in its entirety.(1)

SEC. 26. Inadequacy of damages, Nature of. The foregoing examples, selected from various classes of contracts, although by no means exhaustive, sufficiently illustrate the nature and use of the equitable remedy of specific performance considered as a means of supplementing the inadequate legal relief of damages. Before proceeding to consider the second basis of the jurisdiction, I shall attempt to ascertain and state the exact import of this inadequacy, and the conditions under which it exists, so that the equitable remedy becomes admissible. Sir JOHN LEACH once, in decreeing a specific performance, gave the reasons for his decision in the following language: "Because a court of law could not give the property, but could only give a remedy in damages, the beneficial effect of which must depend upon the personal responsibility of the party." (2) If this dictum were a correct statement of the principles upon which the courts of equity proceed, it is plain not only that the remedy would at times be extended to every species of contract, but also that it would never be extended to all contracts of any particular class; in other words, its use would depend not upon the nature and terms of the contract sought to be enforced, but upon the pecuniary condition of the party, his ability to pay the judgment of damages which might be recovered against him. There are expressions scattered through the judicial opinions— such as "the right to obtain a specific performance is not absolute, but depends upon the circumstances of each particular case," which must be carefully restricted to their exact connections and meaning, or else they will be very misleading. These general expressions describing the effect of circumstances, etc., have no relation whatever to the adequacy of damages as a compensation, but refer exclusively to those surrounding facts and incidents which influence and guide the judicial discretion to decree or not the specific performance of a

(1) Merchants' Trading Co. v. Banner, L. R. 12 Eq. 18, per Lord ROMILLY, M. R., who said: "The real principle is, that where the stipulation sought to be enforced is really a part of the contract itself, this court cannot specifically perform the contract piece-meal, but it must be performed in its entirety, if performed at all; and when the court cannot perform it in its entirety, neither can it perform any particular portion of it."

(2) In Doloret v. Rothschild, 1 S. & S. 590. In a few early American cases, also, the insolvency of the defendant is stated as a partial reason; at least, as a make-weight for granting the relief.

contract which it is assumed might, under the proper conditions, be so conferred.(1)

(1) Certain observations of BECK, C. J., in the recent case of Richmond v. Dubuque, etc., R. R., 33 Iowa, 423, 480, might seem, on a superficial reading, to be diametrically opposed to these statements of the text. As the case is an interesting one, and received very careful consideration from the counsel and the court, I shall quote from it at some length. The contract was very special. It contained, in substance, the following provisions: 1. The defendants- the railroad company-leased certain land to plaintiffs for fifteen years, with the option of extending the term fifteen years more. 2. Plaintiffs agreed to erect and maintain on said land an elevator of sufficient capacity to handle all the grain received by defendants' road, and to increase the capacity if necessary. 3. Defendants agreed not to erect any similar structure, nor to lease any other land at the place for that purpose. 4. Defendants agreed that plaintiffs shall have the handling of all throngh grain transported on their road, and to pay a specified compensation per bushel for handling and storing the grain delivered by them at said elevator. 5. Defendants agreed at the expiration of the term to pay to the plaintiffs the appraised price of the building. Defendants broke the agreement by refusing to deliver the “through grain" at the plaintiffs' elevator, which had been erected, etc., and, of course, refusing to pay any compensation. The plaintiffs brought this action, praying that defendants' agreement might be specifically enforced, or that damages might be awarded for its breach. The court held, that the actual damages sustained by the plaintiffs could be ascertained with sufficient exactness and certainty, and that such damages constituted an adequate compensation, and that, therefore, a specific performance would not be decreed. No allusion is made in the opinion to the impossibility of specifically enforcing the contract, even if damages are conceded to be inadequate, although that question was exhaustively discussed by the counsel. In the introductory part of the opinion by BECK, Ch. J., the following passage occurs, which contains the language referred to at the commencement of this note (p. 480): “It is impossible to state a general rule as to the power of equity to enforce a specific performance of contracts respecting personal property, choses in action and personal services. It is often said that in such cases equity will not entertain jurisdiction. But this doctrine is subject to an exception, or is, rather, limited in its application to cases where compensation in damages does not furnish a complete and satisfactory remedy. The rule is stated, in other words, viz., when the contracting party is entitled to the subjectmatter of the contract, and cannot be fully compensated therefor, equity will afford relief. And it is often expressed, in another form, as follows: Equity will not interfere when the injured party has an adequate remedy at law. Now, in the application of the rule, as it is variously announced, the important inquiry always is: What constitutes a complete and adequate remedy, and when would this be afforded by the allowance of damages? It is sometimes said that equity will not interfere because the law will award damages; and in other cases that equity will interfere in cases when the law will give damages, on the ground that the party is not fully compensated thereby. The fact that a court of law will award damages in a given case does not deprive equity of jurisdiction. To deprive the party of an equitable remedy, the damages recoverable at law must be a full compensation and constitute adequate relief. Equity determines this question. We must apply its doctrines, in order to pronounce the relief adequate or inadequate. But here we find no fixed rule to guide us other than this one, which is general in its language and application: the remedy sought must be indispens