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that, therefore, since the act he could give relief as to part by way of specific performance, and as to the rest by way of damages.

§ 832. The limits of this principle are well illustrated by a case of Norris v. Jackson, (v) which shortly followed the case just referred to. In that case Cook, through whom the defendant claimed, in 1850 agreed with the plaintiff to grant him a lease of a certain house and farm, and on or before the 11th of October, 1852, to put the house into sufficient repair and to erect suitable coach-houses, etc., as Norris and Cook should jointly agree upon, to the intent that the house and premises should be made fit for the occupation of Norris and his family and Norris agreed that upon due performance by Cook of the foregoing stipulations he would accept the lease. These repairs were never done: but there was no allegation in the bill that Cook had evaded giving his consent to any arrangements: and the plaintiff did not waive but insisted on his right to have such repairs done, as the court should think proper to fit the house for the occupation of himself and his family. The court held that this was beyond its powers: that there was no contract which could be performed with respect to repairs, nor any contract binding the plaintiff to take a lease till the repairs had been done. The bill was consequently dismissed on demurrer.

§ 833. (6) It was formerly laid down that where the positive part of an executory contract could not be performed by the court, it would not enforce the negative by injunction: so that, for example, where an actor had agreed to act at a certain theatre, that being a contract which the court could not enforce, it refused to restrain him by injunction from acting elsewhere:(w) and where there was a contract for hiring and exclusive service during seven years, and for partnership at the end of that time on such terms as should be mutually agreed on; the contract being one which the court could not perform as a whole, it refused to enforce by injunction the covenant for exclusive service.(x) Again, where the defendants had agreed to furnish the plaintiffs with the drawings for maps which the plaintiffs were exclu(z) Kimberley v. Jennings, 6 Sim., 340.

(v) 1 J. & H., 319. See, too. 3 Giff., 396. w) Kemble v. Kean, 6 Sim., 333.

sively to sell; the court being unable to compel the defendants to furnish these drawings, refused an injunction to restrain the defendants from themselves selling the maps. (y)

§ 834. This question was very much discussed in the case of Lumley v. Wagner,(z) where, there being an executory contract in part positive and in part negative, and the positive part being such as the court was unable to enforce specifically, it yet interfered in respect of the negative part by means of injunction. In that case, the defendant entered into a contract with the plaintiff to sing at his theatre, and not to sing at any other; and Lord St. Leonards granted an injunction restraining the defendant from singing at any other theatre than the plaintiff's, though the specific performance of the positive part would have been certainly beyond the court's power. The principle was acted on in some earlier cases;(a) but in the case just cited all the authorities on the subject were quoted.'

§ 835. It has been thought to follow from the language of some parts of the judgment in Lumley v. Wagner(b) that the principle of that case is not confined to cases where the negative stipulation is express, but applies also to others where the negation is implied.

(y) Baldwin v. Society for Diffusing Useful Knowledge, 9 Sim., 393; Clarke v. Price, 2 J. Wils., 157.

(z) 1 De G. M. & G., 604. See, too, Catt v. Tourle, L. R. 4 Ch., 654 (where the court considered that the covenant in question, though in terms positive, was in substance negative),

Accordingly, in one case

(a) Dietrichsen v. Cabburn, 2 Ph, 52; Great Northern Railway Co. v. Manchester, Sheffield and Lincolnshire Railway Co., 5 De G. & Sm, 138 See, also, Hills v. Croll, 1 De G. M. & G., 627 n.; S. C., 2 Ph., 60; Daggett v. Ryman, 16 W. R., 302.

(b) 1 De G. M. & G, 604.

1 It does not appear, however, that the doctrine of Lumley v. Wagner has been received in this country. Cases of this nature relate to personal acts, and, although there may be cases in which damages are an inadequate relief, and a specific performance will alone answer the complete ends of justice, yet equity will only interfere where the question has reference to property of some kind. There are numerous cases arising between landlord and tenant, and in cases of partnership, where personal covenants will be decreed to be enforced. They generally rest upon the reasons already stated, the inadequacy of the remedy at law, and the difficulty of ascertaing the damages. Thus, a covenant to give a lease, or to renew a lease, has been required to be executed, and to contain also a covenant for further renewal. So an agreement to form a partnership and execute articles accordingly, may be specifically enforced." Willard's Eq. Jur., 277. It was upon the ground of partnership that the doctrine of Morris v. Coleman, 18 Ves., 437, was received into this country. But it is expressly decided, that "where there is no partnership between the parties, and the defendant has violated his engagement to one theatre and formed a conflicting engagement with another, a court of equity will not interfere either actively or negatively to prevent the performance of the other." Willard's Eq. Jur., 277. And it is continued by the same author, "that the court possessing no means to enforce the contract, the parties will be left to their remedy at law." See De Rivafinola v. Kean, 4 Paige, 264, and ante, note (2), chap. 4, pt. 3.

where an actor had entered into a contract to perform on certain nights at Sadler's Wells Theatre, but without any stipulation that he would not perform elsewhere, Lord Hatherley (then Wood, V. C.) restrained him from acting at any other place than the plaintiff's theatre on the nights on which he had agreed to act there. (c) In Fechter v. Montgomery, (d) Lord Romilly, M. R., though refusing an injunction on other grounds, does not seem to have doubted the jurisdiction in a like case: and in Montague v. Flockton, (e) Malins, V. C., granted an injunction on a similar contract by an actor after a full discussion and consideration of the authorities.

§ 836. Another class of cases in which the courts have implied a negative are suits on charter-parties. De Mattos v. Gibson(ƒ) was the first case where this question arose. There the defendant Curry being about to purchase a ship contracted by charter-party with the plaintiff to carry for him a cargo of coals from Newcastle to Suez. Curry then bought the ship and mortgaged it to Gibson with notice of the charter-party. The bill was filed to restrain Gibson from interfering with the voyage contracted for: Curry was afterwards added as a defendant, and the plaintiff moved for an injunction before Lord Hatherley (then Wood, V. C.), who refused the motion on the ground that the case was not within the principle of Lumley v. Wagner, (g) and that the whole matter sounded in damages. The lord justices on appeal granted an injunction, Knight Bruce, L. J., holding it to be the duty and within the power of the court to prevent the commission or continuance of the breach of such a contract, when, its subject being valuable, as, for instance, a trading ship or some costly machine, the original owner and possessor, or a person claiming under him. with notice, having the physical control of the chattel, is diverting it from the agreed object, that object being of importance to the others. Turner, L. J., put his judgment upon the fitness of retaining matters as they were until at the hearing the important questions in the suit should be

(c) Webster v. Dillon, 3 Jur. (N. S.), 432; 5 W. R., 867.

(d) 33 Beav, 22 See, too, Leavitty Williams (Jessel, M. R.), 24 Sol. Journ., 706. (e) L. R. 16 Eq., 189.

(f) 4 De G. & J., 276, where the case can be traced through its stages up to the appeal from the hearing of the cause.

(g) 1 De G. M. & G., 64.

decided. The cause then came before Lord Hatherley (then Wood, V. C.), at the hearing, who, after a full argument, dismissed the bill: and his decision was brought by appeal before Lord Chelmsford, who held that a vessel under charter "ought to be regarded as a chattel of peculiar value to the charterer, and that although a court of equity cannot compel a specific performance of the contract which it contains, yet that it will restrain the employment of the vessel in a different manner, whether such employment is expressly or impliedly forbidden, according to the principle so fully expressed in the case of Lumley v. Wagner." But he affirmed the dismissal of the bill on the ground that neither of the defendants had done anything to hinder the voyage.

§ 837. The case of Sevin v. Deslandes, (h) before Lord Romilly, M. R., followed De Mattos v. Gibson, (i) and there an injunction was granted, both on interlocutory motion. and at the hearing, to restrain the defendant from doing any act inconsistent with the charter-party, which did not contain any express negative clauses.

§ 838. It is not easy to see the limits to which the doctrine of an implied negative might be carried: for as A. and not A. include the whole world, it follows that a contract to sell to A. or to sing at A. must imply a negation of a sale to not-A. or a singing at not-A: and if injunction is to be granted where specific performance might be impossible, the logical conclusion of the doctrine would be a great and rather formidable enlargement of the jurisdiction of equity. Such an enlargement of the doctrine would be contrary to a dictum of Lord Cottenham, couched in the form of a question, in Heathcote v. The North Staffordshire Railway Co., (j) where he asked: "If A. contract with B. to deliver goods at a certain time and place, will equity interfere to prevent A. from doing anything which may or can prevent him from so delivering the goods?"

§ 839. In De Mattos v. Gibson, Lord Hatherley (then V. C.), thought the implication of a negative stipulation was to be confined to cases in which "the breach of a positive agreement involves specific damage beyond that of the

(h) 30 L. J. Ch 47 9 W. R., 218. See, too, Le Blanch v. Gr. Cr, 55 Beav., 187.

(i) 4 De G. & J., 276.
(j) 2 Mac. & G., 112.

mere non-performance of the agreement itself”—the special damage (in Miss Wagner's case) resulting from her singing elsewhere at a rival theatre, ultra the non-performance of her contract to sing at the plaintiff's theatre: and in another case, the same learned judge observed that the instances in which the court had found it possible to infer the negation were very few and special. (k)

§ 840. In Fothergill v. Rowland, (7) Jessel, M. R., had before him a bill, based on a contract for the sale of all the coal from a particular colliery for a certain period, which prayed for an injunction against selling the colliery, except subject to the contract, and against disposing of the coal except for the purpose of the performance of the contract. His lordship observed that he could not find or seize any distinct line dividing the two classes of cases, that is, the class in which the court not being able to grant specific performance grants an injunction, and the class in which it does not grant the injunction: and he, therefore, following the dictum of Lord Cottenham, allowed a demurrer.

§ 841. The doctrine in Lumley v. Wagner(m) has been criticised by Lord Selborne: and after his observations it is doubtful whether the mere presence of a negative stipulation can be relied on, if the contract is not such in its nature as to be the proper subject of equitable jurisdiction. "It was sought in that case," said his lordship, (n) "to enlarge the jurisdiction on a highly artificial and technical ground, and to extend it to an ordinary case of hiring and service, which is not properly a case of specific performance: the technical distinction being made, that if you find the word 'not' in an agreement-'I will not do a thing'-as well as the words 'I will,' even although the negative term might have been implied from the positive, yet the court, refusing to act on an implication of the negative, will act on the expression of it. I can only say, that I should think it was the safer and the better rule, if it should eventually be adopted by this court, to look in all such cases to the substance and not to the form. If the supstance of the agreement is such that it would be violated by doing the thing

(k) Peto v. Brighton, Uckfield and Tunbridge Wells Railway Co, 1 H. & M., 468, 486. () L. R. 17 Eq., 132. Distinguish Jones v. North, L. R. 19 Eq., 426.

(m) 1 De G. M. & G., 604.

(n) In Wolverhampton and Walsall Railway Co. v. London and North Western Railway Co., L. R. 16 Eq., 440.

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