16 F. 37 | U.S. Circuit Court for the District of Southern New York | 1883
This action was brought in the state court to restrain the defendant, Helen Braham, otherwise known as Lilian Bussell, from violating her agreement with the plaintiff by singing during the current season in any other employment than at the plaintiff’s theater, which the complaint alleges she is about to do. A preliminary injunction having been obtained at the time of the commencement of. the action, the cause was removed by the plaintiff to this court before answer; and the defendant now moves upon affidavits to dissolve the injunction. By the agreement in writing between the parties, the defendant agreed to sing in comic opera in the employment of the plaintiff whenever required during the season of 1882 to 1883, commencing on or about September 1, 1882, at a stipulated weekly salary. By article 1 the agreement provides that “the artist is engaged exclusively for Mr. John McCaull, and during the continuance of this engagement will not perform, sing, dance, or otherwise exercise her talent in theater, concert halls, churches, or elsewhere, either gratuitously or for her remuneration or advantage, or for that of any other person or other theater or establishment (although not thereby prevented from fulfilling her engagement with Mr. McCaull) without having first obtained permission in writing of Mr. McCaull; and for each and every breach of this rule the artist shall forfeit one week’s salary, or her engagement, at the option of Mr. McCaull; but such forfeiture of one week’s salary shall not be held to debar Mr. McCaull from enforcing the fulfillment of this contract in such a manner as he may think fit.”
By article 3 it is provided that “no salaries will be paid for any night or days on which the artist may not be able to perform through illness or other unavoidable cause; and the artist absenting herself, except from illness or other unavoidable cause, will forfeit one week’s
The defendant entered upon the performance of her engagement at the Bijou Opera House in this city in September, 1882, with great success, which was continued until prevented from further performance by protracted illness. Having partially recovered, she attempted to renew her appearances, but after three nights’ performances, in December, she suffered a relapse from which she did not recover until about the middle of February, 1883.
By the written contract the plaintiff was to furnish all costumes. This was modified, prior to September, by an oral agreement by which the plaintiff was to pay a larger salary and the defendant to furnish her own costumes. Both parties agree as to the modification of the contract to this extent. The defendant contends that in addition to the above the oral contract was further modified by the plaintiff agreeing to pay her weekly salary as at first fixed during the continuance of any illness; that the sum of about $350, paid to her by the plaintiff during her illness, was paid in pursuance of this modification of the contract; and that since the middle of December the plaintiff has refused to continue such payment during that part of her illness, in violation of the agreement as modified.
The plaintiff denies that the modification of the contract included any agreement to pay her during illness, and asserts that the moneys actually paid her while ill were merely advances on account of future salary to be earned, and so expressly stated at the time. Each party sustains its respective claims in this respect by several witnesses. They leave this branch of the subject in so much doubt that I feel obliged to reject it from consideration, without prejudice to either in regard to their mutual claims in respect to it, since neither party made it a ground of terminating the contract.
Up to the time this action was commenced the defendant had given no notice to the plaintiff terminating the agreement; nor had the plaintiff, as he might have done according to the express provision of the agreement, notified the defendant that it was canceled, owing to her absence beyond two weeks. I must, therefore, hold the agree
The subject was exhaustively considered by Feeedman, J., in the case of Daly v. Smith, 49 How. Pr. 150, in whose conclusions, in accordance with the English cases above cited, I fully concur. In the present case it is, however, urged that the remedy by injunction should not be allowed, on the ground that the plaintiff’s damages have been liquidated by the first article of the contract above quoted; namely, that “for each and every breach of this rule the artist shall forfeit one week’s salary;” and the cases of Barnes v. McAllister, 18 How. Pr. 534; Nessle v. Reese, 29 How. Pr. 382; Mott v. Mott, 11 Barb. 127, 134; and Trenor v. Jackson, 46 How. Pr. 389, are cited in support of this view.
There is no doubt of the general principle that where the damages for the violation of a covenant are either liquidated by the agreement, or may be easily and definitely ascertained, the parties will be left to tneir remedy at law. But it is clear that in cases of contract like the present, the damages are not capable of being definitely ascer-' tained or measured; and in the cases first abdve cited, injunctions were for that reason allowed. The only question in this case, therefore, which distinguishes the present agreement from those, is whether the provision for the forfeiture of a week’s wages for every violation of article 1 is such a liquidation of the damages as bars the remedy by injunction. In Barnes v. McAllister and in Nessle v. Reese and Mott v. Mott, supra, there was a covenant to pay a specific sum for failure to observe the covenant in these eases; and these sums were held by the court to be strictly liquidated damages.
Where the provision of the contract is in the nature of a penalty, and not liquidated damages, it is well fettled that such a provision will not prevent the remedy by injunction to enforce the covenant specifically; and the provision will be construed as a penalty, and not as liquidated damages, where its plain object is to secure a performance of the covenant, and not intended as the price or equivalent to
Whether the language of the contract is to be construed as a penalty or as liquidated damages is to be determined from its language and its presumed intent to be gathered from the circumstances of the parties and the nature of the agreement. “A penalty,” says Lord Loughborough, in Hardy v. Martin, 1 Cox, Ch. 26, “is never considered in this court as the price of doing a thing which a man has expressly agreed not to do; but if the real meaning and intent of the contract is that a man should have the power, if he chooses, to do a particular act upon the payment of a certain specified sum, the power to do the act upon the payment of the sum agreed on is part of the express contract between the parties.” Vincent v. King, 13 How. Pr. 234-238; Kerr, Inj. 409.
In Coles v. Sims, 5 De Gex, M. & G., Lord Justice Tubneb says, upon this point, (p. 1:) “The question in such cases, as I conceive, is', whether the clause is inserted by way of penalty or whether it amounts to a stipulation for liberty to do a certain act on the payment of a certain sum.”
That the clause providing for the forfeiture of one week’s salary for each violation of this contract was in the nature of a penalty, and designed solely to secure the observance of article 1, is manifest both from the general nature of the employment and the requirements of a manager of opera, as well as the express language of this article; because (1) the stipulation is not for the payment of a certain sum as liquidated damages, but only for the forfeiture oí a week’s salary; (2) it gives an option to the plaintiff, instead of such forfeiture, to annul the engagement; (3) it declares that such forfeiture shall not disbar the plaintiff from enforcing the fulfillment of this contract in such a manner as he shall think fit, i. e., by any available legal or equitable remedy. As the remedy by injunction is one of the remedies available, this language is equivalent to an express declaration that the provision for the forfeiture of a week’s salary for each violation shall not affect .his right to a remedy by injunction. This last stipulation would not, indeed, influence the court, provided it was clear that the damages were intended to be liquidated at a specific sum, for which the defendant was to have the option of singing at any other theater. But these several clauses taken together show conclusively that no such thing was intended, and that the sole object was to secure the specific observance of the contract that the defend-
The injunction of this court must not be used directly or indirectly to enforce the collection by the plaintiff of his alleged but disputed claim for previous advances, through the non-payment of salary hereafter earned, at least until his right is legally adjudicated. (2) Considering the short period remaining, the defendant must not be sent to California, where by the contract she might have been taken without salary en route going and returning; nor, having respect to her precarious health, should she be sent to any very distant point; (3) the plaintiff should furnish satisfactory security for the prompt payment weekly for the defendant’s services at the rate of $150 per week, the contract price, from the time the defendant gives notice in writing of her readiness to sing under the contract, so long as she shall continue in readiness to perform her duties.
In ease of failure to pay any future salary earned, tne defendant may apply, on two days’ notice, to the plaintiff’s attorneys for the dissolution of this injunction.
An order may be entered continuing the injunction subject to the above provisions and conditions.
Enjoining Employe from Serving Rival ' of Employer. The decisions upon the judicial enforcement of the stipulations common between actors, artists, authors, lecturers, or other professional workers and their employers, that the employe shall not exercise Ms skill and talent for any other person, are not very numerous, and are somewhat conflicting; but they establish the modern general doctrine to be that the employer is not obliged to submit to a breach of the covenant, and content himself with an action for damages, but, in a proper case, may have an injunction restraining the employe from engaging in any rival service; and this, whether compelling the latter to perform his affirmative engagement to labor for his employer is practicable or not. To reconcile the decisions would be difficult, except upon the explanation that, when suits of this nature were first brought, the inadequacy of the action for damages, as a remedy, was not fully perceived; but that, gradually, as one case after another was presented, it became better understood, and equity judges grew more prompt and willing to exercise their jurisdiction on the ground that employers of public performers cannot well be compensated in damages for departures of artists from their establishments.' If an actor, continuing to perform for his general employer, according to his engagement,
In what cases the fact that the contract of the parties, by liquidating the damages or otherwise, gives the employer a better remedy by action than usual, precludes his resort to injunction, is the question particularly discussed in the text, and nothing need be added to Judge Brown’s able and lucid exposition of the principles governing that branch of the subject. This note will indicate the development of the general power of equity to enjoin in these cases.
Early English Decisions went upon the theory that although an independent, simple covenant not to undertake specified services may be enforced, when reasonable and consistent with public policy, yet in a contract between A. and B. that B. shall act or sing, etc., for A., and shall not perform for any one else, the negative clause is merely incidental to the affirmative; and unless the case is one in which the court can enforce the affirmative stipulation it ought not to enjoin a proposed breach of the negative. These decisions, therefore, generally denied A.’s prayer for an injunction to restrain B. from performing in the employment of C., unless some special ground of equitable jurisdiction over the case existed. The following are illustrative cases: Trice agreed to prepare exchequer reports for Clarke to publish, without, however, engaging not to write for any one else. The lord chancellor refused an injunction. saying that as he had no jurisdiction to compel Price, directly, to write reports for Clarke, ho ought not to do so indirectly, by forbidding him to write for anyone else.
Upon the other hand, the case of Morris v. Colman
EARLY American Decisions ran in the wake of the English; our courts did not deny the jurisdiction, but were loth to exercise it. De Rivafinoli, while manager of the Italian theater in Hew York, engaged Corsetti as first bass in operas, the latter agreeing not to make use of his talents in any other theater. But before the opening of the season Corsetti was announced to sail for Criba, to perform there under another manager. De Rivafinoli then sought an injunction, (and ne exeat,) which Chancellor Walworth refused, on the ground that under the circumstances the application was premature, for before commencement of the actor’s engagement the manager could not have a right of action. On the general question he said, in effect, that while it is theoretically proper that “ a bird that can sing and will not sing must be made to sing,” yet there is an obstacle to making a vocalist sing by order of the court of chancery, in the fact that no officer of the court has that perfect knowledge of the Italian language, or possesses that exquisite sensibility in the auricular nerve, which is necessary to the understanding and enjoyment of Italian opera; and it would be difficult for a master to determine whether a defendant sang in faithful performance of his engagement, or ascertain what effect the coercion might produce upon his singing, especially in the livelier airs.
The comedian Ingersoll agreed with Hamblin, the manager of the Bowery
Development op the Modjbbn Doctrine. Since about 1850 a broader and more liberal position has been taken. An advance was distinctly made in Dietrichsen v. Cabburn
A firm of Erench photographists, Eredricks & Co., employed Constant Mayer as “ artist painter ” for three years, at an annual salary, to retouch proofs in oil at their Hew Tork house, and he engaged not to work for any one else; yet he left them and engaged with Gurney. The question whether the court could grant an injunction was decided in their favor, the judge saying that this remedy is not applicable to all restrictive covenants, for many may be protected by action for damages; but contracts for employment of a great actor, or for services which involve exercise of high powers of mi'nd peculiar to the one person, cannot be treated by ordinary rules, but require the special remedy of injunetion.
Annetti Galletti agreed to dance at the Broadway Music Hall, Hew Tork, for six months at a weekly salary, and to “ exercise her utmost abilities for the promotion of the exhibition.” But the agreement did not contain an express clause forbidding her to perform elsewhere; and on account of this .omission the employer’s motion for an injunction was denied.
Montague, manager of the Globe theater, London, engaged Floekton to act at the Globe, without exacting an express stipulation that he should not act elsewhere. But the vice-chancellor said that such a stipulation was implied. An engagement to perform for a definite term at one theater involves an engagement not to perform during the term at any other theater. When a person agrees to act at a particular theater, he agrees not to act anywhere else as plainly as if a negative clause wore inserted,
Manager Daly engaged Fanny Morant Smith to play at his theater in New York city during the seasons of 1874,1875, and 1876, the contract containing a stipulation that she should not act during the term of the contract at any other New York city theater without his written consent; and that if she should attempt to do so, the plaintiff might, “ by legal process, or otherwise, restrain her from so performing on payment to her, during such restraint,” of one-fourth her salary under the contract. She, however, allowed herself to be advertised to play at a rival establishment, the Union-square theater, and he brought suit for an injunction. The New York superior court pronounced the stipulation not to perform, valid, and proper to be enforced by injunction; saying that, although the clause as to plaintiff’s restraining a breach on paying a quarter salary could not give jurisdiction, yet, as the court had jurisdiction without it, the clause might be regarded as a guide in fixing the terms of the injunction. Therefore, the actress was enjoined from playing within the city, provided the manager should punctually pay to her one-quarter of her agreed salary.
For other eases in which the modern doctrine (of Lumley v. Wagner) has been incidentally recognized or discussed, and applied in a way not aiding materially to support it, seo Mapleson v. Bentham,
Must THERE be an Expbess Negative Contract? Several English eases support the view that an'engagement not to serve elsewhere is fairly to be implied from a contract, in general'terms, to perform under one manager or at one establishment. But American judges have generally refused to interfere unless there were an express stipulation forbidding the service sought to be enjoined. In other words, in this country a simple engagement to serve leaves the employe at liberty to take other service, provided he faithfully performs the .first engagement.
Eorm of a Restrictive Covenant. The restrictive clause may well be drawn in the following form — making variations appropriate to the circumstances of the particular case:
And it is further agreed, in consideration of the premises, that the party of the second part (the actor, artist, or other employe) will not, during the term of this agreement, exercise his professional skill and talents as an actor (or artist, etc.) in public, (within the city of New York, or otherwise state the limits to iohich the restriction is intended to he confined; and the courts are more uniting to enforce these restrictions when the locality is limited,) either for compensation or gratuitously, and either upon his own account or for another employer or establishment, without the consent in writing of the party of the first part first obtained, under pain of injunction, action for damages, or any other available judicial remedy: provided, however, that the party of the second part may at any time and as often as he thinks fit perform gratuitously at any entertainment charitably given for the burial expenses and relief of the family
PeociíduRE. Several of the cases indicate that it is proper to join the second employer as co-defendant, and to draw the injunction so as in terms to forbid him to employ the chief defendant, as well as prohibit the latter from performing.
New York, N. Y.
1819, Clarke v. Price, 2 Wils. Ch. 157.
1838, Baldwin v. Society D. U. K. 9 Sim. 393.
1829, Kemble v. Kean. 6 Sim. 333.
1836, Kimberley v. Jennings, 6 Sim. 3-10.
18 Ves. 437, (1812.)
2 Phillips, 597.
1833, De Rivafinoli v. Corsetti, 4 Paige, 264.
1 Barb. 314.
1835, Hamblin v. Dinneford, 2 Edw. Ch. 529.
1846, Burton v. Marshall, 4 Gill, 487.
7 Robt. 230, (1837.)
Infra.
2 Phillips, 52.
15 Sim. 88.
Lumley v. Wagner.
Lumley v. Wagner, 5 De Gex & S. 485.
6 Sim. 333; Id. 340: 3 Mac. & G. 393.
3852, Lumley v. Wagner, 1 De Gex, M. & G. 604; 13 Eng. L. & Eq. 252.
1857, Fredricks v. Mayer, 13 How. Pr. 566.
1861, Butler v. Galletti, 21 How. Pr. 465.
1871, Hayes v. Willio, 11 Abb. Pr. (N. S.) 167.
1873, Montagne v. Flockton, L. R. 16 Eq. Cas. 189 5 28 L. J. (N. S.) 581.
33 Beav. 22.
3 Jur. (N. S.) 432.
1874, Daly v. Smith, 49 How. Pr. 150.
а) 20-Weekly Rep. 176.
б) L. R. 16 Eq. Cas. 433.
Boston Law Rep. 547.
32 Law T. (N. S.) 80; reversing S. C. 31 Law T. (N. S.) 567; Gower v. Andrew, 14 Cent. L. J. 50; and Deming v. Chapman, 11 How. Pr. 382.
1 Holmes, 253.
11 Fed.Rep. 519.
L. R. 17 Eq.l32. See, also, a note by E. H. Bennett, to Bowen v. Hall, 20 Am. Law Reg. (N. S.) 578, 587.
9 Hare, 241; 9 Eng. L. & Eq. 182.
2 Sim. & S. 1; 18 Ves. 437.
125 Mass. 258; 16 Vt 176; 22 Law Rep. 693; 5 Jur. (N. S.) 976; 15 Sim. 88.
12 Phila. 209.
7 Robt. 280.
Burton v. Marshall, 4 Gill, 487; Butler v. Galletti, 21 How. Pr. 465; Wallace v. De Young, 98 Ill. 638. But compare Taunton Copper Munuf’g Co. v. Cook, Bost. Law Rep. 547, 549.
Clarke v. Price, 2 Wils. Ch, 157; Lumley v. Wagner, 1 De Gex, M. & G. 604; Burton v. Marshall, 4 Gill, 487; Hamblin v. Dinneford, 2 Edw. Ch. 528.
4 Paige, 264; Sanquirico v. Benedetti, 1 Barb. 315; Hayes v. Wilho, 11 Abb. Pr. (N. S.) 167.
20 Am. L. Reg. (N. S.) 578, and note, Id. 587.