(204 Ala. 566, 86 So. 880.) exhibition of the first of said photoplays." In the other: "The distributor agrees that he will, during the year commencing on or about the 1st day of September, 1918, release eight photoplays, in which the abovenamed star (Norma Talmadge) shall enact the leading role; and it hereby grants to the exhibitor the license to exhibit one copy of each of said photoplays, at the abovenamed theater only, for two successive days. In view of this apparent conflict of date of beginning of contract, the construction placed thereon by the parties will largely control in the matter. The picture in question came to defendant, Select Pictures Corporation, and was subject to release before the expiration of complainant's contract in November, 1919, unless the contract was canceled by defendant's letter of September 16, 1919. When the averments of the bill and answers and the several affidavits are duly considered, we are not impressed that there was cancelation of the contract for reasons provided in the contract. The contract recites that, "inasmuch as the distributor is dependent for its ability to perform this contract upon the production of the photoplays, which may be prevented by the illness, injury, incapacity, death, or default of the artists, directors, and other persons or corporations engaged in producing the same," or prevented or delayed for various reasons beyond its control,—as the conditions on which cancelation may be had on notice. None of these conditions of illness, injury, incapacity, death, or default of the artist Norma Talmadge or of her directors or other persons or corporations engaged in producing her plays, or the play in question, is shown to have intervened to prevent its receipt and release before the time of the expiration of the contract, in November, 1919. On the other hand, the contrary is averred and shown by the affidavits on which submission was had. Under the contract between the parties the Select Pictures Corporation agreed to furnish complainant with certain photographic films portraying the artist in question, for exclusive first runs at its place of business in the city of Montgomery. The defendants Montgomery Enterprises and its manager, Wilby, are charged with a knowledge of such facts as to inform them or put them on inquiry concerning complainant's contractual rights in the premises; that they knew of complainant's having long exhibited first-run pictures by Norma Talmadge; and a trade publication issued November 8, 1919, contained a criticism of the play in question. If such inquiry had been prosecuted to a reasonable extent in Montgomery, it would have led to a full knowledge of the facts. The equity of such bills, so far as pertains to an injunction against a defaulting party to a contract, has been sustained in Edmundson-Randle Drug Co. v. Partin Mfg. Co. 200 Ala. 208, 75 So. 966; Gilligham v. Ray, 157 Mich. 488, 491, 122 N. W. 111; Fleckenstein Bros. Co. v. Fleckenstein, N. J. Eq. —, 53 Atl. 1043. In Friedberg v. McClary, 173 Ky. 579, L.R.A.1917C, 777, 781, 191 S. W. 300, an action to restrain an insolvent from selling a large quantity of tobacco contracted to be sold to plaintiff, and to restrain designated third persons with knowledge of plaintiff's rights from purchasing, was sustained by the Kentucky court. The justice said: "We are aware that in Chambers v. Baldwin, 91 Ky. 121, 11 L.R.A. 545, 34 Am. St. Rep. 165, 15 S. W. 57, and other cases cited on the brief of defendant's counsel, it was held that one party to a contract cannot maintain an action against a third person who even maliciously advised and procured the other party to the contract to violate it, unless such person, by coercion or deception caused the violation of the contract by the other contracting party against his will or contrary to his purpose. But in that case the action was brought, not as here, to prevent the violation of the contract induced by a third party, but to recover of the latter damages for his malicious interference with the contract. In the instant case no damages are sought against Buckner or Gaston, Williams, and Wigmore; it is merely sought to enjoin them from interfering with the contract between plaintiff and the defendant McClary, upon the ground that such interference was malicious, or at least in bad faith, done with full knowledge of the plaintiff's rights under the contract; and that damages that might be recovered by the latter of McClary in an action at law, because of his insolvency, would not afford an adequate remedy. In such state of case relief by injunction has been allowed in other jurisdictions. Beekman V. Marsters, 195 Mass. 205, 11 L.R.A. (N.S.) 201, 122 Am. St. Rep. 232, 80 N. E. 817, 11 Ann. Cas. 332; American Law Book Co. v. Edward Thompson Co. 41 Misc. 396, 84 N. Y. Supp. 225; Flaccus v. Smith, 199 Pa. 133, 54 L.R.A. 640, 85 Am. St. Rep. 779, 48 Atl. 894; Newport v. Newport Light Co. 84 Ky. 166; Wilkins v. Somerville, 80 Vt. 48, 11 L.R.A. (N.S.) 1183, 130 Am. St. Rep. 906, 66 Atl. 893; New England Phonograph Co. v. Edison (C. C.) 110 Fed. 26. The doctrine was also recognized in this jurisdiction in Turner v. Hampton, 30 Ky. L. Rep. 179, 97 S. W. 761, wherein it was held that not only was injunction the proper remedy to prevent the violation, by the trustees of a school district, of a contract whereby they had employed the plaintiff to teach the school therein, but also to restrain another from teaching it under a later contract with the trustees." In International News Service v. Associated Press, 248 U. S. 215, 239, 240, 63 L. ed. 211, 220, 221, 2 A.L.R. 293, 39 Sup. Ct. Rep. 68, the parties litigant were competitors in the distribution of news and its publication for a profit, and the bill sought to restrain the International News Service from using news from bulletins and excerpts from early editions, selling the same to defendant's customers. The insistence by the defendant was that, the bulletin boards and early editions having given the matter as news, the same became the common possession of all to whom it became accessible, and that the defendant had the right to convey such news to its customers and charge for same. In answering this contention Mr. Justice Pitney said: "The fault in the reasoning lies in applying as a test the right of the complainant as against the public, instead of considering the rights of complainant and defendant, competitors in business, as between themselves. The right of a purchaser of a single newspaper to spread knowledge of its contents gratuitously, for any legitimate purpose not unreasonably interfering with complainant's right to make merchandise of it, may be admitted; but to transmit that news for commercial use, in competition with complainant,-which is what defendant has done and seeks to justify,-is a very different matter. In doing this defendant, by its very act, admits that it is taking material that has been acquired by complainant as the result of organization and the expenditure of labor, skill, and money, and which is salable by complainant for money, and that defendant, in appropriating it and selling it as its own, is endeavoring to reap where it has not sown, and by disposing of it to newspapers that are competitors of complainant's members is appropriating to itself the harvest of those who have sown. Stripped of all disguises, the process amounts to an unauthorized interference with the normal operation of complainant's legitimate business precisely at the point where the profit is to be reaped, in order to divert a material portion of the profit from those who have (204 Ala. 566, 86 So. 880.) earned it to those who have not [italics supplied], with special advantage to defendant in the competition because of the fact that it is not burdened with any part of the expense of gathering the news. The transaction speaks for itself, and a court of equity ought not to hesitate long in characterizing it as unfair competition in business. The underlying principle is much the same as that which lies at the base of the equitable theory of consideration in the law of trusts,-that he who has fairly paid the price should have the beneficial use of the property. Pom. Eq. Jur. § 981." The rule is stated in Citizens' Light, Heat & P. Co. v. Montgomery Light & Water Power Co. (C. C.) 171 Fed. 553, where injunction was maintained against the indemnifying by a certain business of a rival's customers against a recovery of damages growing out of their breach of contract, where the purpose was to induce a breach of contract. The court said: "While the law allows a trader, by mere solicitation, to persuade customers to change their business relations, without actionable liability therefor, though a broken contract is the result, it does not permit such a solicitor, even in the interests of competition, to go further, intervening actively between the contracting parties, as a dominant agency in producing a breach, by promise of indemnity to one of them to induce the breach. When the solicitor knowingly and intentionally goes beyond mere solicitation, to induce another man's customer to do business with him, and promises to hold that other man's customer harmless for the breach of a contract with him, he transcends the rights of the law of competition, has no sufficient justification,' and thereby becomes liable to him whose customer is taken over. Such conduct is an unlawful interference with another man's rights, for which he may maintain an action and recover nominal damages, although the contract be not actually breached in consequences of the solicitation." (Italics supplied.) Complainant's rights in the picture "The Isle of Conquest," Norma Talmadge starring, was exclusive as to its first exhibition at Montgomery, Alabama. Its receipt and date of its release by Select Pictures Corporation was admitted by its manager to have been on or about October 20, 1919. Its first run privilege was of great value in the business of the kind in which instant parties are and were engaged. Wells v. First Nat. Exhibitors' Circuit, 149 Ga. 200, 99 S. E. 615, 618. Select Pictures Corporation having granted to complainant the exclusive privilege of showing said picture at its theater in Montgomery, Alabama, before its exhibition at other theaters in said city, was a valuable right secured by the latter under the contract, Injunction and other theaters against inducing contract. hibit the same in disregard of complainant's contract rights of first run, after notice or knowledge of complainant's said rights. This was beyond the rights of the law of competition. The averments of the bill are sufficient to charge notice or knowledge to the resident defendants of complainant's contractual right to first-run exhibitions of Norma Talmadge pictures within the city of Montgomery, where complainant and defendant were prosecuting rival businesses, and had done so for a long period ante-dating defendant's purchase of the purchase of the picture in question. The omission on the part of defendant to seek information of complainant, who it knew was or had recently been in the possession of the exclusive right of exhibiting the first run of pictures by said artist, and knew of the custom throughout the country and in this city governing same, was a failure to prosecute an inquiry with due diligence. 2 Pom. Eq. Jur. 3d ed. § 607, p. 962; Ivy v. Hood, 202 Ala. 121, 79 So. 587. There is no adequate remedy at law for the protection of complainant's rights. A statutory action of detinue for the recovery of the -absence of remedy at law. property in specie will not provide an adequate remedy at law for a breach of the contract to furnish moving picture films. Raftery v. World Film Corp. 180 App. Div. 475, 167 N. Y. Supp. 1027, 1032; 36 Cyc. 557. If detinue had been resorted to by complainant to secure possession of the film, defendant having the statutory period of five days in which to give bond and retain possession of the chattel (Code, §§ 3778, 3780; Nixon v. Smith, 193 Ala. 443, 69 So. 117), and was exhibiting the same at the time the temporary injunction was issued, before the time fixed by the statute for delivery of the property, etc. (Code, § 3778), the film would have lost its value to complainant as a first-run picture by defendant's continued exhibition thereof. The rule of the inadequacy of remedies at law in such cases is well stated in 36 Cyc. 557, thus: "If the specific thing contracted for is desired by plaintiff, if it cannot be duplicated, and if his reason for desiring it or the other circumstances of the case are such that money damages would not be an adequate compensation to him for its loss, equity will decree its delivery to him. The jurisdiction for this purpose is an outgrowth of, and closely connected with, the remedy for the delivery up of chattels of this special nature tortiously withheld from their owners. In such cases the legal remedies of replevin and detinue are subject to defects of procedure which prevents the successful plaintiff from invariably recovering possession of the chattel." We now come to the question: Had the lower court jurisdiction to enjoin the exhibition of the picture by defendant Montgomery Enterprises Corporation? Of jurisdiction, pertinent provisions of our statute are: "Courts of chancery must take cognizance of cases in equity. Against nonresi dents, when the object of the suit concerns an estate of, lien, or charge upon, lands, or the disposition thereof, or any interest in, title to, or encumbrance on personal property within this state, or where the cause of action arose, or the act on which the suit is founded, was to have been performed, in this state." Code, § 3054; Moore v. Altom, 192 Ala. 261, 264, 68 So. 326; Treadaway v. Stansell, 203 Ala. 52, 82 So. 12. In Iron Age Pub. Co. v. Western U. Teleg. Co. 83 Ala. 498, 505, 3 Am. St. Rep. 758, 3 So. 449, it is said of the statute (Code 1886, § 3414) that it confers jurisdiction on courts of chancery against nonresidents in four particular classes of cases: First, when the object of the suit concerns an estate of or lien or charge upon lands within this state, or the disposition there. of; or, second, any interest in, title to, or encumbrance on, personal property within this state; or, third, when the cause of action arose in this state; or, fourth, when the act on which the suit is founded was to have been performed in this state. We quote from the opinion: "The jurisdiction, as thus conferred, is plainly statutory and limited, and the general rule being that a foreign corporation cannot be sued unless it voluntarily appears to defend, it being impossible for the court to extend the arm of its process into a foreign state or territory for the purpose of reaching it, it follows that the bill cannot be retained, unless the case made by it falls within the statute, or else it is made to appear that this objection has been obviated by an actual appearance of the defendant, so as to confer jurisdiction of its person. Sayre v. Elyton Land Co. 73 Ala. 85; Galpin v. Page, 18 Wall. 350, 21 L. ed. 959; Field Corp. Wood's ed. § 329, note 3; Camden Rolling Mill Co. v. Swede Iron Co. 32 N. J. L. 15; Freeman, Judgm. 3d ed. §§ 567, 568. The present case concerns neither land nor personal property, but a contract for personal services. As (204 Ala. 566, 86 So. 880.) we have above said, the bill fails to aver with sufficient certainty that the contract arose in this state, or was to be performed within its jurisdiction." The subject of that controversy was news despatches to be delivered from time to time by the Associated Press, in the future, to the Western Union Telegraph Company at a point without the state, and by it delivered to resident publishing companies. The purpose of that bill was not to enjoin the publication of press despatches then in the possession of the publishing companies within the jurisdiction of the Alabama courts. In discussing the sufficiency of averments of the bill in the Iron Age Case, Mr. Justice Somerville points to indefiniteness with respect to when the contract was made, or where it was entered into, or where to be performed, whether in or out of the state, and says that the bill does not with sufficient particularity aver that the telegraph despatches were, under the contract, to be delivered to the complainant by the New York Associated Press at Birmingham through the agency of the telegraph company, or only to the latter company in New York, to be transmitted to complainant's agent without further liability on the part of the Associated Press. It was upon such vague and indefinite allegations as to the place of execution of the contract by the Associated Press that the court held that such defendant was not brought "within the class specified by the statute, and therefore shows no jurisdiction in chancery." That this is the crux of that decision is shown by the further statement of facts reciting that the bill prayed an injunction "to enjoin and restrain said Western Associated Press and New York Associated Press from selling, transmitting, or furnishing, and said Western Union Telegraph Company from delivering, the 'Associated Press despatches' to said News Publishing Company, said Herald Publishing Company, or to anyone for them." From such averments there was not shown any interest in, title to, or encumbrance on, personal property within the state, and its use, or that the act on which the suit was founded was performed within the state of Alabama, as required by statute. Thus is the decision of Iron Age Pub. Co. v. Western U. Teleg. Co. supra, distinguished from the averred facts in instant case showing jurisdiction within the purview of the statute. In the instant case the photoplay film in question had been furnished by Select Pictures Corporation to the defendant Montgomery Enterprises, in disregard of its contract with complainant, and the averments of the pleading were that said personal property (the photoplay film in question) was within the state at the time the bill was filed, in the city where complainant and the defendant competitor both conducted moving picture businesses, and was being exhibited by one of respondents. The object of the present suit concerns an interest in or title to the specific personal property within the state, and its exhibition by the Montgomery Enterprises within the state and county where the bill was filed, in disregard of complainant's superior contract rights and to its irreparable injury. Woodstock Operating Corp. v. Quinn, 201 Ala. 681, 79 So. 253. Here the resident defendants are proceeded against as tort-feasors, against whom relief can be had in the absence of service on the nonresident joint tort-feasors, sending the photoplay (the personal property, the object or subject of the contract) into the state to violate its contract with complainant by its exhibition by a business rival. Jurisdiction is acquired from the fact that the personal property of Select Pictures Corporation in question was in possession of the resident tion-controversy defendant, Mont- with nonresigomery Enterprises, which was exhibiting it at the time the bill was filed, and which Courts-jurisdic dent. |