132 Iowa 155 | Iowa | 1906
The petition, which is in equity, alleges that plaintiff is a corporation doing business in Chicago, 111., as a manufacturer and wholesale and retail dealer in ladies’ corsets, and in the importation and sale of trimmings, laces, silks, and dress furnishings, and that its sales of said merchandise are and have been largely carried on by and through the agency of traveling representatives; that on October 5, 1904, the plaintiff entered into a written contract with the defendant whereby said defendant undertook to work for the plaintiff for a period of three years as corset saleswoman and demonstrator at a stated weekly salary and expenses incurred in the service; that defendant did in fact enter the company’s service under said contract, and continued therein for a ■ period of about four months when, without any cause whatever, she abandoned said employment, and has ever since refused to perform her part of said contract. As the further statement of plaintiff’s cause of action constitutes a claim which is new or at least unusual in the courts of this State we quote it at large in the language of the petition:
Third. Plaintiff, further complaining of said defendant, alleges and avers: That the style of corsets as aforesaid manufactured, sold, and dealt in by it have a front lacing, leaving the back of the corset free from the heavy boning, eyeletting, and lacing, which obtain in the corsets in general use, and are otherwise distinguished as being highly flexible and acting as an abdominal and spinal support, and that for and during several years heretofore, in order to introduce and create a demand for and to sell said front lace corsets so manufactured by it as aforesaid, it has expended large sums of money in advertising the merits of the' same, through the medium of traveling representatives, agents, and salespeople, and thereby has visited the various towns and cities of the United States showing, exhibiting and selling its said front lace corsets, and has also expended large sums of money in advertising its said front lace corsets in the leading periodicals and newspapers of the country, and which said front lace corsets were, at and before the time*? of the grievance hereinafter mentioned, widely known as a valuable and useful article of merchandise, and had acquired a high reputation as such, and commanded and still commands, as a valuable and useful article of merchandise, an extensive sale at the said cities of Chicago, Minneapolis, St. Paul, and Sioux City, and in the other cities and towns of the United States and Canada, and which for the last several years has been a source of great profit to said plaintiff. And to more effectively create a demand for the said front lace corsets so manufactured and sold by the plaintiff the plaintiff inaugurated the plan of giving lectures and demonstrations, by a lady lecturer and demonstrator, such lectures pertaining to the physical culture of woman and the proper corsage to secure to her health, comfort, and physical beauty, and at the same time exhibiting and showing the many advantages of the corsets so manufactured and sold by plaintiff as adding to her physical beauty, comfort, and health, as well as the durability, fit, and advantage in said front lace corsets. That among the many duties and services of said defendant under the said contract, was that of such lecturer, demonstrator, and saleswoman of said front lace corset so handled and sold by the said plaintiff as aforesaid, and that said services were and are special, unique, ánd extraordinary in their character, and call for a person of high mental culture and refinement, of strong and pleasing individuality, good address, prepossessing appearance, striking physical development, possessing a knowledge of physical culture, and ability as a lecturer as well as the quality of high-class salesmanship, which characteristics, accomplishments, knowledge, attainments, and qualifications were and are possessed by the defendant in a marked degree, and which are rarely found in women, and the services of such a woman so combining such characteristics can rarely be secured, all of which were well known to said plaintiff as well as to the said defendant at the time of the making and entering into of said contract, and were the inducements which caused said plaintiff to enter into said contract with said defendant, and that the services and duties of said defendant under said contract were and are of such a character as to render it practically impossible for said plaintiff to replace her or to employ any other person to take her place, and has in fact been unable to find another competent person to take her place although it has made a diligent*159 effort so to do, since the defendant refused to longer remain in the employ of plaintiff.
Fourth. Further complaining of the said defendant said plaintiff alleges and avers: That ever since said defendant wrongfully quit the employ of said plaintiff she has engaged in the sale and demonstration'of a front lace corset similar in construction, design, make, and material to the front lace corset manufactured and sold by said plaintiff, and that the said defendant has wrongfully procured-and engaged other persons to manufacture and sell such corsets, and has herself been engaged and is now engaged in visiting the various cities and towns of the United States, and at the present time is so engaged in the city of Sioux City and State of Iowa, in the advertisement, demonstration, and sale of said corsets and in giving lectures on the physical culture of woman, and the correct corsage to secure to her physical beauty, health, and comfort, and has used and is now using the knowledge, information, and skill gained and acquired by her while in the employ of this plaintiff in the furtherance of her said business, and is engaged in using the same methods as to the advertisement, demonstration, and sale of said corsets so wrongfully sold by her as aforesaid that were inaugurated,- conceived, suggested, and taught her by the said plaintiff, and which methods she was hired and employed by said plaintiff to use* and has brought the said corsets now caused to be manufactured and sold by her into active competition with the corsets manufactured, sold, and dealt in by the plaintiff as aforesaid; and whereas, said plaintiff had theretofore and' before the wrongful acts of said defendant, as above set forth, enjoyed the exclusive trade and sale of said corsets so made and sold by it as aforesaid, it is now brought into damaging and injurious competition with the said corsets so advertised, demonstrated, and sold by the said defendant as above set forth; and whereas, there had been theretofore no corset of similar design, style, or construction upon the market, and that said defendant has announced, and still continues to announce, her determination to continue in her wrongful conduct as aforesaid and to continue to advertise, demonstrate, and sell her said corsets, and to continue to bring the same into im jurious and damaging competition with the said corsets handled and sold by this plaintiff, and threatens to continue the same in the future as in the past, in violation and breach*160 of her said contract of hiring, and in ntter disregard and contempt of the same. That the defendant is a person of small financial responsibility, and is unable to respond in damages to any judgment which plaintiff may recover for breach of said contract or the wrongful acts and misdoings of the defendant, as aforesaid. That the damage to said plaintiff, done and created by the said defendant as aforesaid, is not susceptible of pecuniary compensation, and cannot-be estimated with any certainty, and is constantly recurrent, and that great and irreparable damage has resulted, and will result and be produced by the unlawful acts, and threatened acts, of said defendant, and that the same will cause great and irreparable damage to said plaintiff and to its said business, and that the plaintiff has no adequate legal remedy at law in. the premises, and that the granting of an injunction herein, restraining and enjoining such acts, conduct and doings, as aforesaid, will prevent innumerable actions at law and constantly re'curring damages, and will afford plaintiff its only relief in the premises.
Upon these allegations, plaintiff demands damages in the sum of $10,000 and for a writ of injunction restraining the defendant, her agents, servants, and employes, “ from advertising, demonstrating, selling, or in any manner whatsoever disposing of the front lace corsets now advertised, demonstrated, and sold by the said defendant, her agents, servants, or employes, and which are now, or may be hereafter, possessed, owned, or controlled by said defendant, her agents, servants, or employés, or any other or similar kind or style of front lace corsets, either on the part or account of said defendant, or as agent, employe, demonstrator, or lecturer of and for others engaged in the sale thereof, and restraining and enjoining said defendant from any act, conduct, or doing whatsoever causing damage to said plaintiff by reason of the violation of the terms of said contract so entered into with plaintiff by said defendant.”
The written contract attached to the petition contains the following stipulation as to the services to be performed by the defendant:
*161 The party of the second part is to work for the party of the first part in the capacity of corset saleswoman and demonstrator, in such cities and states as the party of the first part may desire. The party of the second part agrees to give her entire time and attention and best abilities to the interest of the party of the first part, and the party of the first part agrees to pay the party of the second part therefor, in addition to all reasonable expenses, a salary of thirty ($30.) dollars per week, to be paid weekly each and every week during the first year; and a salary of thirty-five ($35.) dollars per week, to be paid each and every week during the second year, and a salary of forty ($40) dollars to be paid each and every week during the third year. It is further provided that in case each party is not entirely sat-, isfied with all the provisions of this contract, it may be canceled by either party, at the end of thirty (30) days, or on November 10, 1904, after which date it shall be in full force and effect.
Upon the foregoing petition a writ of temporary injunction was issued as prayed. No answer was filed to the petition, but defendant filed a motion to dissolve the injunction and supported the same by an affidavit specifically denying the material allegations on which the prayer for the writ is based. In this affidavit she avers that her service with plaintiff was rendered unsatisfactory and uncomfortable by the plaintiff’s unnecessary and undeserved criticism of her work, by refusing to pay the salary' due her, or to advance her traveling expenses according to the terms of their contract, by insisting upon her traveling with a man as an advance agent who was a stranger to her and with whose character and reputation she was not acquainted, and by refusing to allow her to conduct her canvass for customers in the manner which her experience indicated as the most effective and profitable. She further avers that long before she contracted with the plaintiff she had been engaged in the business of buying and selling front lace corsets of the same general kind as those which she undertook to sell for the plaintiff, and that there is nothing new or
Formerly this role was substantially without exception, but in later years there has arisen a class of cases tending to recognize certain exceptions thereto. In the early English case Kemble v. Kean, 6 Sim. 333 the defendant Kean, an eminent actor, had engaged to play at plaintiff’s theater, and expressly bound himself not to play at any other theater in London during the stated period. He abandoned this engagement, and plaintiff sought an injunction to prevent his entering the service of any other person in violation of the agreement. The relief was refused for reasons substantially such as we have above suggested. In the later case of Lumley v. Wagner, 1 De Gex M. & G. 604, an injunction was sustained, and it is generally cited as overruling Kemble v. Kean, though this conclusion is not uni-, versally accepted. The Lumley case was based upon a con
These dicta have not had general acceptation, and so far as the courts of last resort in this country have had occasion to speak in cases directly involving the question they have never extended the rule of Lumley v. Wagner to contracts containing no express negative covenant. This is not to say that a negative which is to be implied- from a positive undertaking will not be respected by the courts. We can conceive that so long as the employé remains in the employer’s service there is ordinarily an implied undertaking that he -will not engage in any other service or business to the detriment of his employer’s interests. He must not 'undertake to serve two masters. This covenant, though not expressed in terms, both law and equity will enforce on proper occasion. But every contract of hire is made with full v knowledge by both parties' of the power of either to put*
From the foregoing general statement as to the trend of American precedents on this question, we may except Duff v. Russell, 133 N. Y. 678 (31 N. E. 622), though even there we think the contract contained something more than an implied agreement not to - enter the service of another during the period covered by the defendant’s engagement. No opinion was filed in that case, but the essential facts may be gleaned from the head notes and are as follows: The defendant, Miss Lillian Russell, refused to carry out her agreement to sing at the plaintiff’s theater and threatened to appear at a rival performance. To prevent this action on her part plaintiff sued out an injunction. Miss Russell sought to justify her conduct on the ground that the plaintiff insisted upon her appearing before the audience in tights, and she could not do so without danger of taking cold, but the court having ascertained from the record that defendant’s physician had advised her to proteb't her health by ci Wearing something underneath her tights ”
In the absence of an opinion in the cited case, we are left in doubt whether it was the special and unique or the intellectual character of the service demanded of the actress which the court relied upon as requiring the interposition of chancery to compel the defendant to appear in tights before a metropolitan audience, or refuse to do so at the peril of being held in contempt of. court if she should exercise the ordinary right of a free person to earn her living in the pursuit of her chosen profession. We are strongly inclined to the view that the law there announced is opposed to the great weight of authority and that at the very most its controlling force as a precedent should be strictly limited to cases presenting an entirely parallel state of facts. Indeed, it may fairly be said that cases involving the employment of actors and public singers do constitute a peculiar and distinct class being somewhat of the nature of contracts with authors and playrights for their literary and dramatic productions, and that, for obvious reasons, the rules applicable thereto should not be extended to ordinary contracts of hire. It is well-established law that a writer may bind himself to sell another all his literary productions for a stated period. Likewise,, the author of a play may sell another the exclusive right to place it on the boards. We may even suppose a case in which the play has never been put in print or in manuscript, but exists solely in the mind and memory of' an actor playwright, and there will be no incongruity or unreasonableness in the proposition that even in such case he may bind himself by contract upon sufficient consideration to produce it solely and exclusively at a particular theater and while he cannot be compelled to specifically perform, equity will interpose to prevent his violation of his cOntraót
Reasoning somewhat along the same lines it may be said that an actor’s presentation of his part in a play of which he is not the author is a species of property. Though the lines are not his, yet he, in a very just sense, creates the part which he assumes, gives it his own interpretation, and clothes it with his own spirit. If the writer may sell and give property right in the naked unwritten or written lines may not the actor sell and give property right in his interpretation and presentation of those lines? Such, at least, seems to have been the idea of the courts for an examination will demonstrate that the use of the writ of injunction in the enforcement of contracts involving the rendition of personal service had its origin and has always had its most frequent application in an endeavor to afford proprietors of theaters and operas relief against artists who break their engagements to the serious loss of managers who have arranged the season’s entertainments upon faith of these contracts. ■ If, in addition to the reasons already suggested, we should admit that the peculiarly uncertain moods and carelessness of contract obligations which are sometimes said to characterize great histrionic and operatic genius and the peculiarly grievous embarrassment and injury which their violation of contracts brings upon their managers, call for the application of an exceptional and drastic remedy, we still think the courts should be very reluctant to admit either the necessity or propriety of its use where the duty sought to be enforced is merely ordinary, material, or me: chanical and the fact that. such duty requires skill and
In the case of Philadelphia Ball Club v. Lajoie, already cited, and on which appellant strongly relies, the defendant (a baseball player) entered into a contract expressly binding himself not to play for any other ball club for a named period without his employer’s consent, and an injunction was granted for its enforcement. Possibly, the extension to great baseball players of a rule especially applicable to great actors may be justified on the theory- that success in both professions requires exceptional dramatic ability, but the courts are not agreed upon that proposition and in a case involving the same kind of a contract which was enforced against Lajoie, injunction was denied on the ground that the service called for was not of the peculiar or extraordinary or intellectual kind in the enforcement of which equitable relief will be granted. Baseball Co. v. Harper, (Mo. C. C.) 54 Cent. Law J. 449. See, also, Columbus Baseball Club v. Reiley (Ohio), 25 Wkly. Law Bul. 385; Harrisburg Baseball Club v. Athletic, 8 Pa. Co. Ct. R. 337. The case of Daly v. Smith, 49 How. Prac. 150, decided by an intermediate court of New York which is .often cited as upholding the doctrine contended for by the appellant herein was a-litigation based upon a contract containing an express negative covenant and the discussion indulged in by the court as to the rule where no such covenant exists is clearly dictum.-
There are some covenants that may be specifically enforced in equity, but they are very different from the contract before us. They are mostly covenants for the conveyance of real estate and in no case have any relation to the person. But if the law were silent the policy of enforcing specific performance of a covenant of this nature would settle this question. Whenever contracting parties disagree about the performance of their contract, and a court of justice interposes to settle their different rights their feelings become irritated against each other and the losing party feels mortified and degraded in being compelled to perform for the other what he had previously refused, and the more especially if that performance will place him frequently in the presence or under the direction of his adversary. But this state of degradation, this irritation of feeling could he in no other case so manifestly experienced as in the case of a common servant where the master would have á continual right of covenant and the servant be compelled to a continual obedience. Many covenants the breaches of which are only remunerated in damages might be specifically performed by a third person at a distance from the adversary or in a short space of time. But a covenant for service if performed at all must be personally performed under the eye of the master and might as in the case before us require a number of years. Such performance, if enforced by law, would produce a state of servitude as degrading and demoralizing in its consequences as a state of absolute salvery, and, if enforced in a government like ours which acknowl- ' edges a personal equality, it would be productive of a state of feeling more discordant and irritating than slavery itself. Consequently if all other contracts were specifically enforced by law it would be impolitic to extend the principles to contracts for personal service.
In De Rivafinoli v. Corsetti, 4 Paige, Ch. (N. Y.) 264 (25 Am. Dec. 532), the eminent Chancellor Walworth while conceding arguendo that injunction will lie in a proper casé, proceeds in a so'xnewh&t whimsical but very effective
It is charged in the bill not only that the defendant can sing, but also tbat he has expressly agreed to sing and to accompany that singing with such appropriate gestures as may be necessary and proper to give interest to his performance. And from the facts disclosed I think it very evident also that he does not intend to gratify the citizens of New York who may resort to the Italian opera either by his singing, or by his gesticulations. Although the authority before cited shows the law to be in favor of‘the complainant so far at least as to entitle him to a decree for the singing I am not aware that any officer of this court has that perfect knowledge of the Italian language or possesses that exquisite sensibility in the auricular nerve which is necessary to understand and enjoy with proper zest the peculiar beauties of Italian opera so fascinating to the fashionable world. There might be some difficulty therefore, even if the defendant were compelled to sing under the direction and in the presence of a master in chancery, in ascertaining whether he performed his engagement according to its spirit and intent. It also might be very difficult for the master to ■ determine what effect coercion might produce upon' defendant’s singing, especially in the lighter airs, although the fear of imprisonment would unquestionably deepen his seriousness in the graver parts.
If a master in chancery would be at loss in directing and criticising the airs of an 'opera singer it is not too much to say that he 'would be even more embarrassed in supervising and directing the service which the defendant in the instant case undertook.to perform. By what standard of law or of taste or pure or applied science is the court or the master to determine whether .the defendant is a. person p£. such “high mental .culture and | refinement,
Directly opposed to the doctrine of Duff v. Russell is the case of Hamblin v. Dinneford from the same state reported in 2 Edw. Ch. 529. This involved the contract of an actor to play in the plaintiff’s theater for a stated period with an express agreement not to play in any other theater without the plaintiff’s consent. The court, after discussing the áuthorities, reached the conclusion that it is “ a mere matter between employer and employed, and the parties should be left to law,” and refused to sustain an injunction. To the same effect is Sanquirico v. Benedetti, 1 Barb. (N. Y.) 315; Fredericks v. Mayer, 1 Bosw. (N. Y.) 331. That courts of equity will not interfere to enjoin a party to a contract of hire which contains no negative covenant and then only in exceptional cases has been held in many other cases. Of them we may cite Welty v. Jacobs, 171 Ill. 624 (49 N. E. 723, 40 L. R. A. 98); Taylor v. Nichols (N. J. Ch.), 61 Atl. 946; Burton v. Marshall, 4 Gill. (Md.) 487 (45 Am. Dec. 171). See, also, as bearing in some measure on the same general propositions, Arthur v. Oakes, 63 Fed. 318 (11 C. C. A. 209, 25 L. R. A. 414); Delavan v. Macarte, 1 Ohio Dec. 226; Sternberg v. O’Brien, 48 N. J. Eq. 370 (22 Atl. 348); Bispham’s Equity (6th Ed.), 591, and cases cited in note; Kerr on Injunctions, 466; Caldwell v. Cline, 8 Mart. (N. S. [La.]) 684; Metropolitan E. S. Co. v. Gebler (Eng.) 2 Ch. 799. Davis v. Foreman (Eng.) 3 Ch. 654; Burney v. Ryle, 91 Ga. 701 (17 S. E. 986.) Of the English case of Lumley v. Wagner, supra, and other cases following that precedent upon which appellant largely relies, it is said in Pomeroy’s Equity Jurisprudence (3d Ed.) note to section 1314 that “ the American courts have either generally rejected the doctrine of Lumley v. Wagner or have accepted it only to a partial extent.”
Without pursuing the discussion further, we will say that, from as complete an examination as we have been able to give of the state of the law at this time with reference to the questions argued, we are satisfied that the better and greater weight of the authorities tend to these general conclusions: (1) That equity will not undertake to^ decree specific performance of contracts for personal service. (2) In the absence of an express negative covenant equity will not aid the, enforcement of such contract by injunction. (3) Even where there is an express negative covenant injunction will not be granted save in those exceptional cases where, by reason of the peculiar or extraordinary character of the promised service a violation of the agreement will cause injury to the other party for which an action at law will afford no adequate remedy.
For the reasons stated, the ruling of the district court is affirmed.