78 P. 737 | Or. | 1904
delivered the opinion of the court.
1. Assuming, for the purposes of the opinion, that the plaintiffs have legally succeeded to the rights of South-worth under the original contract, and stand in his place and stead, entitled to all the rights and privileges given him by its terms, and that it embraces all the territory claimed by them, there are two reasons why this suit could not be maintained after the repudiation of the entire contract by the defendants, and the service on the plaintiffs of notice to that effect in June, 1902: first, the plaintiffs, if they are entitled to any relief at all, have a full and complete remedy at law ; and, second, the remedy by injunction or specific performance is not mutual. It could not he invoked by the defendants against the plaintiffs, as the contract is not, and never was, capable of being specifically enforced or enjoined at the suit of Pittock or the defendant publishing company. The contract between Pittock and Southworth created substantially the relation of employer and employé, and this relation continued as.to those who succeeded to South worth’s interest. By its terms Southworth (whom we shall hereafter assume includes parties who have legally succeeded to his rights), was to carry and deliver the paper to all paying subscribers within the designated territory, to endeavor to increase its circulation, to collect subscriptions therefor, and to
We cannot think, however, that the agreement contemplated that the personal relationship between the parties should necessarily continue, against the will of either,
2. It follows, therefore, that whether the action of the defendant corporation in repudiating the contract and notifying the plaintiffs that it would no longer be bound thereby be deemed a separation within its terms, or a breach thereof, the effect was to terminate the contract; and the only question between the parties remaining for adjustment is the amount, if any, to be paid by the defendants to the plaintiffs on account of such separation or breach. That question is not cognizable by a court of
It is admitted, as we understand it, that a court of equity will not decree a specific performance of the contract in ■suit because it requires varied and continuous acts on the part of the defendants, but it is argued that it will enjoin the defendants from violating the contract by delivering papers, or causing them to be sold and delivered, within the territory embraced in plaintiffs’ contract, until such time as the defendants take the proper steps provided in the contract for its termination. Although the remedy suggested is negative rather than affirmative, it is, in effect, a decree for the performance of the contract. Enjoining the defendants from delivering papers or causing them to be sold and delivered in the disputed territory would practically enforce the contract, and require them to furnish
4. We are therefore of the opinion that plaintiffs cannot maintain this suit, for the reasoiis stated. There is, however, another objection to the enforcement of the contract in equity at the suit of the plaintiffs, and that is because the 'remedy is not mutual, and defendants could not compel the plaintiffs to perform. It is a fundamental rule of equity that when, from the nature of the contract, it is incapable of being enforced against one party, that party is
For these reasons, the decree of the court below should be affirmed, and it is so ordered. Affirmed.