*1 prede- than right herein has no better plaintiff, contractor, had. stat- interest, No cessor in the drdeging on the con- acquired. lien was Plaintiff’s utory judgment 23, 1932, this bill tract rendered com- March laches plaint September 1936. This indicates was filed if to the relief sought. even the had been entitled plaintiff Affirmed. C. J.,
Ellis, Whitfield, Terrell, Brown, Buford J., concur. Chapman, J. Thompson F. Corporation, v. Shell Petroleum Corporation Georgia in this authorized do business State.
Brown, cuit Orange injunction Court- County, granting Thompson, ap the- Petroleum Corporation, enjoining Shell pellant, sub-lease cancelling from violating into hereto. entered by the station from leased filling City Orlando, 21, 1933, period years. for a five on June *3 lease There the could provision was whereby appellant sublease the without the written consent of property passed the lessor. A was the by resolution Commis- City appellant sion of Orlando authorized to sub- whereby was lease the however, property to the appellee, subject, ato condition that said Shell “the Petroleum Corporation (ap- at pellee) shall all times the period sub-tenancy during it, the F. employ Thompson operate said to said prem- J. all respects ises whatsoever.” then Appellant sub-leased the property appellee Corporation, the to which sub-lease contained a clause the allowing Corporation the Shell to privilege cancel the lease fifteen by notice giving days by paying appellant The Thompson sub- $100.00. provision lease contained no appellant to termi- allowing nate the lease upon condition.
n On the next day, agreement was into entered between these appellant was whereby employed operate to This station. “Dealer’s license agreement” contained a provision either allowing revoke it party by ten giving notice. days
Appellant operated station for some time and then fifteen notice to the gave days appellee that he would cancel the employment agreement and the sub-lease. pre- an injunction secured Corporation appellee - the sub-lease or violating cancelling from
vent this decree. from appeals Appellant contract. court: Should before the questions
There are two to- construed and the sub-lease be employment contract Thompson privilege in such to give gether way also, in fact that the sub-lease view cancelling Orlando, sub-lease, City granted permission shall at Corporation that the Shell contained condition F. the said employ during sub-tenancy all times in all respects operate premises the said Thompson whatsoever? Thomspon
If the lease privielge cancelling no has en- Corporation allowed negatively should Shell Thomp- specific performance when injunction, force Corpora- against son could not enforce lease Shell words, that can not be en- tion; in other this a is there no because its breach by injunction against forced is of remedies? In the first we that it question, find considering employment Thompson contention appellant’s *4 the attached to of City permission a condition Orlando’s sublet, that the the employment and sub-lease and con- in agreement—i. tract made out the e. there carrying were the Thompson or sub-lease must be would a hiring and the both the sub-lease permitted be by city; the must be construed together. have no We the part with contentions. We quarrel appellant’s this opinion are of the that we should consider the trans- whole look at in its each instrument entirety action in view in the other will aided the and thus we construction instruments. of the interpretation fur- these two construing instruments by ther contends the together, as sub-lease is inasmuch the conditioned on the employment Thompson, that the clause permitting parties to the contract to cancel' on ten employment days the part notice should also be construed as a sub-lease. We are that this is erroneous. reasoning convinced line appellee terms sub-lease the By plain of the contract to the the expressly the to cancel sub-lease fif- given right teen Can it be days notice and the payment $100.00. imagined that the it intention of the that either was parties one should be to breach allowed sub-lease ten upon this days employment notice allowed the contract? Such an interpretation would be in violation of intent of parties as is expressed provisions of clearly by sub-lease. We can not take the “ten cancellation days clause” out of the employment contract and substitute it for expressed provisions sub-lease, clearly whereby the appellee was only allowed to cancel the con- tract and must fifteen give days notice and pay $100.00 for the privilege.
The city allowed this sub-lease subject to a condition. Of course when Thompson on his own gave initiative his ten days notice and revoked his contract of employment, he didn't continue work the Shell Corporation, if then, act, his own by broken, condition would be but we are opinion of the that the one who only complain could of this broken condition City As Orlando. between sub-lease, none of provisions in the sub-lease broken, been having Thompson could complain. Thompson must abide by sub-lease, even though condition as his employment, imposed was revoked. He city, complain, cannot since especially he revoked employment his by the Shell Corporation own act. his voluntary
n We are of the after opinion, reviewing testimony Thompson, that had not been termination any there actual between employment Thompson the Shell Corpora- tion. After gave he notice he em- his revoking was sub-lease, contract and ployment contin- cancelling he Corporation ued to work for the Shell under the same pro- He still visions. was employed by Corporation, Shell tried, when this suit could City was Orlando not, not have as there complained, had been ac- yet, tual breach of the condition.
The City Orlando probably contemplated that Thomp- son Corporation and the would enter Shell into some sort of an specified but it was not agreement, what sort of an employment there should be between appellant and and as as the appellee, long actually employed was appellee operate the premises, whether aby agreement, not, agreement dealer's or what license oral reiterate, condition violated. under the To existing affairs, state of neither Thompson nor the of Or- City lando lease could terminate the all the because lawfully provisions complied been with.' substantially had question second then whether the Shell Corpora- tion should be an allowed injunction prevent Thompson sub-lease, from cancelling indirectly spe- thus get performance cific of the contract against Thompson, when Thompson could not enforce the sub-lease specifically appellee against notice, if saw fit to give due pay $100.00, it; e., i. and cancel is this circumstance which from prevent appellee would being granted injunc- tion there was no because of remedies available? review of
We find authorities that usually apply injunctions against same general rules breach to specific performance. apply a contract *6 a contract is “An the breach injunction restraining The juris- that contract. enforcement negative specific substantially is injunction such grant diction of to equity per- a specific compel jurisdiction with to coincident and the same doctrines by governed formance. Both are proposition as a rules; general stated and bemay af- which will be of a one class contract is wherever re- enforced, will a court of equity specifically firmatively practical the only if its breach this is injunction, strain permit.” of enforcement which its terms mode limit, has American been of the Courts tendency “The 'of contracts.' enlarge, jurisdiction rather than cases contracts, violation of some enjoin Courts will English enforced. The not be specifically can though even they exceptions adopt refuse American with few Courts Sec. 4th Ed. Pomeroy’s Jurisprudence, Equity doctrine.” 1341, 4. Vol. work, 1691 of
See also Sec. the cited num- large and quoted cases have the above principle. ber We also that: find rule, general
“As which there are few exceptions, as, injunction operates restrain a breach of contract all specific decree for purposes effects performance. And the breach aof contract will not be usually enjoined there be a unless well as of mutuality obli- remedy Injunctions Law of Lewis gation.”—The Spelling, 292, 129; find, again Sec. on p. Sec. p. we rule, general “As a where there a lack of remedy, will aid neither courts equity in the of the contract an injunc- enforcement by granting them to their law.” remedy tion but will leave at are cited: following Ledever, Swanson cases v. 547; Hunt, 158 Ill. Advance App. Oil Co. v. 116 N. E. Ct. Super. 55 Pa. Leyton, Co. v. 340; Laundry Iron City *7 364. Co., Div. 177 93; App. Woolworth v. Ginsburg bar, plaintiff at who appellee, In the case (sub- the contract below, cancel option had the court author- Let examine us fifteen notice. days on lease) the enforcement of about what they say and ities see such provision. it contains when injunction contract by that, a provision although "A contract contain may obligation, optional or lacking mutuality originally at the or revoked partially be terminated may totally sought obligation Where the of one of the parties. volition an op- the performance of such upon rests enforced of the court power tional by plaintiff, consideration lacking, is usually relief to both complete parties grant prin- not be will decreed. compulsory performance and or want mu- want of consideration ciple not based on is will the court ground ‘but on the obligation, tuality specific per- not decree it can performance compel unless parties, compel formance both it can not by perform- at ance could avoid the decree plaintiff as he is the contract. Unless there time revoking that the is at time coercion sought, of remedy accomplish perform- full parties court both bind will contract, equity ance the court refuses exercise parties and leaves the at Law.’ powers to their remedy Where it left to one of to an agreement it, he proceed choose whether will or abandon neither can it.” Jurisprudence, enforce Lawrence on specifically Equity 1, cases: Reichert following Sec. Vol. v. citing Frisbie, Co., 882; 204 W. 86 W. Pure Oil N. v. S. Berry Co., Co. v. 558; Express Western N. Ry. Southern C. 191; Northern Iowa v. Gas Elec. 99 U. S. Laureens Co., 432; Miami Coca-Cola v. Bottling Orange F. Co. 282
660 Keither, Co., 693; 969; N. E. v. 86
Crush
296 F.
Ulrey
897;
Fish
Freeman v.
Gray,
Fowler
v.
79 N. E.
Utilities
man,
Again Sec. we “If under the 'contract to ter party option one has will, it at minate he can not injunction against have option. no adversary who such Even party has however, the authorities are not unanimous.” point, 339; Marble Co. v. 77 Citing Ripley, U. S. Utilities Fowler Conrad, Gray, Co. v. Rust v. supra; 265; Frank N. W. Harrison, lin Telegraph 459; Co. v. 145 U. S. Philadel Ball phia Co. v. Lajoie, Atl. 973. *8 195, 297,
In 32 p. C. Sec. there shown is be consid- erable conflict in opinions and cases cited: to some
“According the fact a decisions contract that is terminable at of option one only of not does of itself render the contract objectionable lack for of mu- of prevent, the in tuality remedy, or whose favor the party option from a breach enjoining exists where of a case is otherwise made out proper for equitable relief by injunction.” cases of Citing Singer Machine Sewing Hole, etc., Co., 22 Union Co. v. Button Fed. Cas. No. 904; 516; McCall Wright, 91 N. E. Co. v. Philadelphia Lajoie, Ball Club v. supra; Grove v. 55 Pa. Hodges, 504. “Reason (In foot for note) legal princi- view”—“The ple must be contracts mutual does mean that in case each must every party have the same a remedy for breach as the other. difference in Mere the right stipulated destroy does not. of mutuality remedy, as the contract a wide range obligations and covers duties as between parties, and it may impaired be as the long bonds of reasonableness and are not fairness transgressed.” Cit- The text ing Pennsylvania two cases. continues: “Other remedy no have that there is held decisions the par one of option only contract terminable at the a enjoined not be will covenant ties and that breach of the is option given.” favor at the suit whose party Keither, Marion Oil supra; County cases of Citing v. Ulrey v. 390; A. Fowler Co. Dykstra, v. 165 Ill. Utilities Co. Hunt, E. 116 N. 897; v. 79 N. E. Advance Co. Gray, Oil Ward, 779.” 340; v. NYS Metropolitan Exhibition Co. can present problem our discussions of One of the best ed., 2nd Vol. Jurisprudence, be in Pomeroy’s Equity found 744: Sec. lack of mu- “The latest extension the defenses of the will terminable at contracts which are tuality the con- option example a common plaintiff; being of the tract mineral purposes lease for exploration be development, stipulation may with lease line at the the lessee. A surrendered at time will would specific performance of cases that inasmuch as holds lessor, at suit the lessee refused of the since would nu- have in his to render the decree of court power lease, his therefore gatory surrendering immediately lessee, however and able to his ready, willing with comply time, length of the contract for considerable must part *9 Note) fail relief.” “The rule in not (Foot question is dictum, It in dates from the case very standing. long 19 L. v. Ed. (1870) of Rutland Co. Ripley Marble Conrad, decision Rust 11 (Cooley, v. N. W. 265 The cases J.) these to have succeeding appear followed assumption these eminent on the courts the rule was authorities; a line unquestioned none by long established them internal evidence bear examined the sub- having McGuire, v. principle. Brooklyn See Club 116 Fed. on ject Western Co., Pub. v. Union 3 782; Iron Co. Tel. Age. So. 662 Ass’n, Rep. Ct. 8 Pa. Co.
449; v. Athletic Club Harrisburg 536; 240 Fed. Watford Oil 337; Weissberg, v. Kenyon Keither, 53; v. Ulrey N. E. Shipman, Co. v. 84 and Gas Hunt, The well- etc. v. supra; Advance Oil Co. supra; is performance known rule that refused specific to to at will partnership pointed a contract enter into is to however, not examination. The does bar proof. analogy, gives in question, sufficient plaintiff, the cases practical demonstration of his desire out con to carry tract abandon it bring to expense going But fallacy the suit. of these ing deeper decisions goes refused, than this. Relief is because court is un secure performance able to such due from the plaintiff as is alive, elects the contract he but because keep while court is compel palintiff unable to do something do, he has never viz., contracted to the contract keep alive predetermined a definite' period. These holdings assume that the doctrine is an artificial as mutuality rule of reciprocó, lose sight of wholly its fundamental purpose, which is simply performance secure on the plaintiff’s part promise. of his executory The better view that of the Circuit is Court in Singer Machine Co. Sewing v. The Button Hole Co. There the court held that ob jection of lack mutuality would not the enforce prevent contract, ment of the itas long alive actually kept plaintiff’s performance. continued these cases: Citing Gaindo, 239; v. 43 Am. Sturgis Rep. Singer Ma Sewing Co., supra; Philadelphia chine Ball Club v. La Joie, supra; 563; Zelleken Pac. v. McCall C. Lynch, Wright, v. 516; 91 N. E. Edison Co. v. Illuminating Eastern Penn Co., Atl. 652.” sylvania Power 'The above reasoning to us to seems deserve consideration. There hopeless undoubtedly conflict in cases *10 that we believe point law jurisdictions; of other the case we well consider present would do to fairly appears what principle, not follow complacently merely weight authority. be the bare in- in a case This Court on the question not passed has it laid but has factual here presented, volving status subject. on this down several that bear principles directly Co., 118 Fla. In case Miami of Love v. Laundry enforcement of 160 So. the Court was considering 'the driver provision in a which employment contract immediately year of a that “for one truck laundry agreed he will either discharge company, after his said or the names divulge or make known or directly indirectly customers, said or patrons agents addresses of any whatsoever, for person space company any discharge of one after his year quitting employment or he will not or either company, directly indirectly, said firm, corpo- for himself or other person, company solicit, ration, of the call divert or take upon, away any custom, which patronage upon business or of such company solicited, etc.” he or whom he called Court, states: speaking Justice Buford, power “A not lend to enforce court of should equity of an one of provisions executory against are parties unless terms and conditions the contract least part such that court enforce at equity might party.” terms thereof the other against case, opinion in same concurring in his Justice Davis, states: specific
‘A court of will interevene to enforce equity breach of a restrictive performance negatively by enjoining covenant, labor where made appear has been harsh oppressive contract is employer favor of the *11 in fairness the otherwise against employee, lacking or is parties the to it.” obligation between not We submit the set out above are principles First, the applicable to the at bar for several reasons. case different above stated were to an principles applied entirely of case. In between two type those cases the was e., parties i. employer unequal contracting power; terms, to more or less. presumed dictate his own to able The were contracts that were held above cases founded on to contain and that worked some element of unfairness bar, undue on In case at the con- hardship party. one ap- tract was a fair one and was harsh unduly were pellant. to the sub-lease apparently either terms in such a situation could dictate to other. Thus a different from the we have here situation above cases. are of the that the could opinion We injunction have obtained a temporary against appellee, it attempted had break the lease option to exercise and without fifteen days’ notice or giving payment $100.00 consideration, he, too, if he could suffer show that would irreparable injury.
Our court
to
with
seems
the authorities that “An
agree
injunction against the breach of a contract is a negative
performance
decree of specific
agreement,
of the
and the
power
rule is that
general
duty
to
equity
the former is measured
same
grant
rules and
practice
power
duty
grant
as its
latter relief.” See Sea
Donovan,
board Oil Co. v.
Fla.
=665 fol- From them we glean Juris, supra. cited in Corpus : lowing at terminable (sub-lease) the contract
“The fact that *12 not itself render does of the parties the one of option only of remedy, of for lack of mutuality contract objectionable the from the exists option in whose favor the prevent party case proper contract where a breach of the enjoining The injunction. relief by for equitable otherwise made out mean mutual does not must be contracts legal principle remedy the same in each must have party case every right difference in the other. Mere breach the as * * * of destroy mutuality remedy does not stipulated for are reasonableness and fairness the as bounds long “The Injunctions 297.) (32 not C. transgressed.” practical a sufficient question gives in plaintiff the case out the contract and not carry to demonstration his desire the suit. expense bringing the to going abandon by this; than goes deeper these decisions But the fallacy secure refused, the court is unable to not because relief is elects the while he plaintiff is due from as performance such alive, the court is unable contract but because keep that he has never compel something to do plaintiff do, viz., a defi- alive for keep contracted to These' assume that period. holdings nite predetermined artificial or reciprocity is an rule doctrine as to mutuality fundamental which is sight purpose, lose wholly secure of his performance plaintiff’s part simply The better view is that of Circuit promise. executory Co. Hole Court in Machine v. The Button Singer Sewing Co., that the of lack objection There court held supra. prevent the enforcement of the of. would kept by plaintiff’s contract so as it alive long actually performance.” continued
In bar, the case at not unfair. sub-lease' was reservation of the of the Shell to cancel right Company lease was fifteen notice upon conditioned and the days’ payment to A appellant cancellation of the $100.00. lease the Shell cause Company necessarily would loss, hand, while great on the other Shell had to Company go expense painting to considerable signs, etc., installing equipment, and would lose considerably a breach of the lease. The that the appellant fact gave the Shell to cancel the lease fifteen Company right upon days’ upon notice and payment consideration $100.00 for this should not privilege, be allowed to right defeat the of either party provisions enforce the sub-lease. Gautier, al.,
In et v. Bradway, Fla. 99 So. Court, citing a number decisions, of other Florida held *13 that applications to specific enforce performance of con tracts for the sale of are land addressed the sound judicial chancellor, discretion of the discretion such controlled principles of law and equity to the applied facts and case, circumstances of particular con when thus trolled decision his will not be disturbed on appeal, unless erroneous. clearly See also in this general connection Mas Salciccia, 847, sari v. 522; 102 Fla. 136 Babbit, So. Booth v. 114 704; So. Fla. Calumet v.Co. Oil City Corp’n, 114 Fla. 141. So.. appealed from decree affirmed. accordingly P. J., and J., concur.
Whitfield, Chapman, Ellis, C. J., J., concur Terrell Buford, the opinion and judgment.