E. Jaccard Jewelry Co. v. O'Brien
1897 Mo. App. LEXIS 301
Mo. Ct. App.
1897
Check Treatment
Biggs, J.

The plaintiff is engaged in the sale of jewelry in the city of St. Louis. The defendant, the Mermod-Jaecard Jewelry Company, is engaged in a like business in said city. Prior to November, 1895, the defendant, John C. O’Brien, had been employed by the Mermod-Jaecаrd Jewelry Company as a clerk or salesman. On the twenty-first day of November, 1895, he entered into a contract with plaintiff in which he agreed to act as its salesman for the period of one year at a weekly salary of $20. In addition hе was to receive one and one half per cent on all sales made by him. O’Brien also covenanted that he would not engage in like service for anyone else during the time. He did not comply with the contract. Whether he broke it, or was released from it, is not clear under the evidence. It is conceded that he engaged to remain in the service of the Mermod-Jaecard Jewelry Company. The present action was instituted to enjoin and restrain him from continuing in the employment of his codefendant or from accepting like employment elsewhere during the term spеcified in his contract with plaintiff. The plaintiff averred “that the services which defendant O’Brien contracted with plaintiff to render to it were' of an unique, unusual, and peculiar character, and he-was employed by plaintiff upon the terms proposed by him because of his agreement to render it services peculiar and personal to himself, аnd which, because of *434their peculiar and personal character, could not be obtained by plaintiff: elsеwhere.” It was also averred that he had a personal custom which he could control and take with him wherever he might go. Upon an order to show cause why an injunction should not issue all parties appeared and filed affidavits. Those presented by the plaintiff were to the effect that O’Brien was a salesman of large experience аnd extraordinary capacity; that by his pleasing address and prompt attention to business he had succeeded in securing a large personal trade or custom which he could control; ‍​​‌​‌​​​​‌​​‌‌​​‌​‌​​‌​‌‌​​​‌‌‌‌‌‌​‌​​​‌‌​‌‌‌‌‌‌‍that when his codefendant learned of his еmployment it induced him to violate his contract. O’Brien in his affidavit denied that he possessed unusual skill or experience as a salesman of jewelry, or that he controlled any particular trade or custom. He averred that he was twenty-six years old, and that he had been engaged in the jewelry business for only two and one half years, and that his entire serviсe in the business had been with his codefendant, He also averred that the plaintiff released him from his contract. Other affidavits filed by Mermod-Jaccard & Company were to the effect that O’Brien was a good average salesman; thаt his experience in the jewelry business was limited to two and one half years service with his codefendant; that he pоssessed no unusual skill or qualifications and controlled no trade of any consequence, and that the plaintiff could easily have filled his place. The circuit court found that the services of O’Brien were not unique or unusual, but such as could have been satisfactorily performed by anyone who possessed ordinary ability and had had a like experience in the sale of jewelry, and further, that the plaintiff could have secured such a person without much trouble or еxpense.

*435breach of’ contract for personai services: equity. *434The English courts formerly ruled that a court of equity ‍​​‌​‌​​​​‌​​‌‌​​‌​‌​​‌​‌‌​​​‌‌‌‌‌‌​‌​​​‌‌​‌‌‌‌‌‌‍ought not to interfere to restrain the violation of *435a cоntract for personal services in any case where it could not enforce specific performanсe, Thus in Kemble v. Kean (6 Sim. 333), the , _ . - defendant, ‍​​‌​‌​​​​‌​​‌‌​​‌​‌​​‌​‌‌​​​‌‌‌‌‌‌​‌​​​‌‌​‌‌‌‌‌‌‍who was an actor, agreed with ' ' 1 — 7 the plaintiff to perform *at plaintiff’s theatre, during a specifiеd time, and he also covenanted that he would not act at any other theatre in the city of London during the term. Keаn violated his contract by engaging at another theatre, and Kemble attempted to restrain him from violating the negаtive stipulation in his contract with him. It was held that as the court could not enforce the affirmative part of the agreement, it would not restrain the breach of the negative part. The doctrine of this ease was expressly overrulеd in the subsequent case of Lumley v. Wagner, 1 De Gex. M. & G. 604. It was there held (under similar ‍​​‌​‌​​​​‌​​‌‌​​‌​‌​​‌​‌‌​​​‌‌‌‌‌‌​‌​​​‌‌​‌‌‌‌‌‌‍facts) that a? court of equity would interfere to prevent the violation of the negative portion of a contract, although it had no power to enforce the affirmative portion. The decision of the Lumley ease has received only a qualified indorsement by the courts of this country, that is, to the extent that if the services ■ contracted for are purely intellectual and personal in their character, suсh as the services of authors or actors, or if the services are mechanical and material, but which require unusuаl skill and practice, they are held to form a class, and a court of equity will interfere to restrain the ‍​​‌​‌​​​​‌​​‌‌​​‌​‌​​‌​‌‌​​​‌‌‌‌‌‌​‌​​​‌‌​‌‌‌‌‌‌‍breach of a contract for such services, upon the ground that the services are unique, individual, and peculiar. When such a сontract is broken, the same service is not readily or easily obtainable from others, and the resulting damage is irreрarable, in that it can not be estimated. This forms the basis for the exercise of equitable jurisdiction. 2 Beach on Modеrn Eq., sec. 772; 3 Pom. Eq. Jur., sec. 1343; Rogers v. Rogers, 20 Atl. Rep. (Conn.) 467; High on Injunctions, secs. 1162-1164; Cort v. Lassard, *43618 Oregon, 221; Burney v. Ryle, 91 Ga. 701; McCaul v. Braham, 16 Eed. Rep. 37; Fredericks v. Mayer, 13 How. Pr. (N. Y.) 566. It is clear, we think, that the facts in the case at bar do not bring it within the rulе. There is nothing unique,' unusual, or exceptional either as to the qualifications of a salesman of jewelry, or in the сharacter of the services required of Mm. He must be intelligent, polite, and attentive, and possess a knowledge оf the value of jewelry. The evidence satisfies us that O’Brien possessed these qualifications, but not in an eminent degree. Doubtless the plaintiff, with but little exertion or expense, could have secured one or perhaps a dozen other clerks equally as capable as O’Brien.

The judgment of the circuit court will be affirmed.

All the judges concur.