Imágenes de páginas

Here is a matter directly affecting the Town | views herein expressed. We have given those pecuniarily, by increasing the expense proba- decisions and the reasons by wbich they are bly. It is, or may be, a legal injury. May supported a careful consideration, and are connot the Town employ and pay counsel to pre strained to say tbat neither the reasons nor the vent such injury? Tue question answers itself. conclusions are satisfactory to us. In the Moreover, ibis resolution apportions the town more prominent case, Coolinge v. Brookline, deposit fund, the property of the old Town, its 114 Mass. 592, one argument is that the town debts and lialiiliiies, and also its duties and has no vested rigbt to its territorial limits and burdens. These are matters wbich do directly therefore has no corporute duty to defend those concern the Town obviously and necessarily. limits against the State. That does not quite It is well nigh absurd to say that the Town bas reach the question before us, which is not a a right to app ar aud be beard, and yet has no question of duty, but of right and power. The power to puy the expense of such hearing. It Town may violate po duty to the State or to seriously impairs, if it does not practically de others if it makes no defense; bilt wben its pestroy, the right.

cuniary interests are to be affected bas it not a We bave no overlooked the fact, suggested right to be heard? True, the Town has no in the complaint, that the plaintiffs and others, vested right lo its territorial limits in the sense residents in ibe new town, are taxed 10 pay the that the Legislature may not at its pleasure expenses of resistingibe petition. There may be change those limits; but will the Legislature an apparent injustice in this; but we doubt if it for that reason deny it a hearing? The right is real. That was a water for the Legislature of petition includes the right of remonstrauce, rather than the court. The Legislature might and wben the Legislature proposes to do an bave provided, as it did in the case of Beacon act detrimental loibe Town, we have no doubt Falls isle 8 Spec. Laws, 52), that the Town of ibat in Massachusetis, as well as in Connecticut, Derby as it now is should pay all such expenses. a respectful remonstrance will be graciously But it did not; ou the contrary, the second received and fairly considered. section provides that said Dew lown shall pay The opinion in tbat case concedes that the its proportion of the present debts, liabilities, Town may defend its limits before all tribucharges and expenses, suits, petitions and nals excepi the Legislature itself. This sceins claims, already due and accrued, commenced to imply ihat if others apply to the Legislature and existing, against said Town of Derby," etc. to enlarge or restrict the limits, the Town may

Tbat clearly includes all legi imate expense in. not resist the change. If that is ils nieuning curred in defending the petition for a new we cannot assent lo it. We do not understand

town. So that by its express language, as well that the cbaracter of the tribunal before which as by its silence, ibe Legislature bas recognized a claim is made will at all affect the righis or the duty of paying them by the Town of Derby The standing of the paries. We cannot believe as it was; and we cannot say that it is unjusi. that the Legislature is less willing to grant a The Legislature may bave bad the best of rea full bearing to all parties in interest than are Bons for its action,

other tribunals. In that case the change in Incidentally we remark that the Legislature. the boundary lives of Brokline is treatex simply in the case of Beacon Fulls, expressly recog: as a change in the public duties required of ibe nized not only the right of the towns to defend Town. Here, as we have seen, the case goes such pctitious, but also the power to pay the much further and materially atfects rights of bills.

properly as well. Prior to 1852 all petitions to the General As- For ihese reasons the superior court is ad. sembly of an adversary nature were required vised to render quilgment for the defenılants. to be served on adverse parties in the ordinary In this opinion ibe other Judges concurred, way of serving civil process. Under that Suat except Andrews, Ch. J., who disseuled. ute the practice is believed to bave been uni. versal to serve the petition on the town or towns lo be allerled. Tbe substitution of an order of notice by a judge of the superior court WILLIAM ROGERS MANUFACTURING in 1952 mude no change except in the mode of

CO. et ul., Appts., service. This is anoiser recognition of the rigbt of the town to be heard, and, by strong

Frank W. ROGERS. implication, of its power to pay the expenses. Applications for the incorporation of new

(58 Conn. 356.) towns have been numerous and frequent in this Siate. We apprehend that few cases can be 1. Contracts for personal services will found in which the towns to be afferited dirt

not be specifically enforced in equity. not take action either for or against the appli 2. The negative enforcement of a con. cation. The custom has been general, if not

tract for personul services by an injunction will universal, for the towns to pay the expenses of

oot be made where the services are not purely such action. The fact tbai this question bas

intellectual, peculiar or individual in their charnot been raised beretofore, either in this court 3. A contract for the employment of a or in the superior court, affords some presumption against the plaintills' contention. A prac

person in such services As shall le devolved tice acquiesced in by ibe bar and tbe public for

NOTE.-Contraclo nol enorcebit. so long a time, is pretty good evidence of wbai

Contracts for services involving special merit the law is, aud of wbat it ought to be.

and skill will not be enforced in equity except under We are not unmiwdful of the cases cited in special circumstances. See note io Curt v. Lassard behalf of the plaintitfs from Massachusetts and Or.) 6 L, R. A. 653. Maine, and that they are inconsistent with the See also the late case of Metropolitan Exhibition 7 L. R. A.



upon bim by the general manager of the busi- / serve said Companies under the direction of ness, including such duties as traveling or acting said Watrous, as general agent and manager, as secrețary or other officer of the company, if including such duties as traveling for said required of bim, does not show that his services Companies, as said general agent may devolve are so peculiar or individual that they cannot be performed by any person of ordi vary intelligence upon bim, including also any duties as secreand fair learning, so as to authorize an injunction tary or other officer of either or both of said

in aid of the specific performance of the contract. Companies, as said Companies may desire to 4. An agreement by an employe not to save him perform at the salary bereid before

allow his name to be used in any busi- named, for the first five years, and at such ness similar to that of his employer, will not, if other or further or different compensation the latter does not own the name as a trade mark, thereafter, during the remainder of the wentyauthorize an injunction against his engaging five years, as he, the said Rogers, and the said with bis employer's competitors, and allowing Companies may agree upon. them the use of his name, at least if it is not “4. The said Rogers during said term stipshown that the employer uses, or is entitled to ulaies and agrees that be will not be engaged, use, such name, or that the use of it by rivals cr allow bis name to be employed, in any man. would do bim some special injury.

ner, in any other hardware, cutlery, tlatware

or hollow-ware business, either as manufac(February 17, 1890.)

turer or seller, but will give, while be shall be

so employed by said Companies, bis entire A

the Superior Court for Ilariford County in mon business, diminished ovly by sickness and favor of defendant in a suit brought to enjoin such reasonable absence for vacations or otherdefendant from leaving plaintiffs' employment wise as may be agreed upon belween bim and or engaging in other business, in violation of a said general agent.” contract. Affirmeil.

The complaint set out the foregoing conThe action was brought by the William Rog. tract, and a contract of March 14, 1879, beers Manufacturing Company and the Rogeis tween the plaintiff Companies, by which they Cutlery (ompany, both joint-stock corporations agreed for twenty-five years to do certain busilocated in Hartford, and carrying on business vess on their joint account and under one manunder one management, the manager being agement, the defendant tben being secretary of William H. Watrous.

the Rogers Cutlery Company, one of the plainOn March 17, 1879, the following contract tiffs. The complaint then proceeded as fol- . was entered into between Watrous, acting as lows: agent of the plaintiff Companies, and the de. “After the execution of said last-named con fendant.

tract, in order to make it desirable to the de “1. That said Companies will employ said fendant to become and continue permanently Rogers in the business to be done by suid Com- interested in and connected with the new busi. panies, according to the stipulations of said ness thereafter to be severally done by said agreement, for the period of iwenty-five years corporations under the control of said Watrous therein named, if said Rogers shall so long live as general manager thereof as provided in said and discharge the duties devolved upon bim contract, and to prevent him from allowing his by said Watrous, as general agent and man- name to be used in conflict therewith, and as a ager of the business to be done in common by consideration for the performance of his own said Companies, under the directions and to contract additional to those named therein, the the satisfaction of such general agent and man. said Watrous, ip and by another contract with ager, is being understood that such duties may the defendant dated March 17, 1879, conveyed include traveling for said Companies, when to the defendant the equitable interest and ever in the judgment of said general agent the ownership in one hundrer and sixty shares of interests of the business will be thereby pro- the capital stock of the Rogers Cutlery Com. moted.

pany aforesaid, upon the terms and conditions 2. The said Companies agree to pay said named in the agreement; and the defendant Rogers for such services so to be rendered, at has since, and prior to the date of this com. the rate of $1,000 per year for the first five plaint, received upon said shares of stock years of such services, and thereafter the same $2.995.99 in dividends, and still remains enor such larger salary as may be agreed upon titled to the receipt of continued dividends by said Rogers and the directors of said Com- thereon and to full conveyance of said shares panies, said salary to be in full during said according to the terms of said contract. term of all services to be rendered by said Rog. “In accordance with said agreement the deers, wbrther as an employé or an officer of said fendant entereil the service of the plaintiffs, Companies, unless otherwise agreed.

and tberein has continued until the present time "3. The said Rogers, in consideration of the as the secretary of each of said Companies and foregoing, agrees that he will remain with and 'in the discharge of the duties tbereio so as

Co. v. Ewing (N. Y.), ante, 381, where it is held | simply gives clubs the right as against other clubs, that, "although equity will not ordinarily atteinpt to secure the services, if the parties can agree, but to enforce contracts which cannot be carried out places no obligations on the player to enter into by the machinery of a court, it may nevertheless such contract. Hence players cannot be compelled practically accomplish the same end by enjoining to enter into such future contracto by a decree of the breach of a negative prornise." This was in re- specific performance, and consequently they can. lation to the contract of a base ball player, wbich not be enjoined from entering into them with other gives the employer the right to “ reserve" such clubs player for the seuson next ensuing, and which

aforesaid agreed by him to be performed, and Mr. F. Chamberlin, with Mr. E. S. from the date thereof to the present time the White, for appellanis: provisions of said agreement (except as herein. Where a contract contains covenants to do after stated) bave been executed both by the certain acts, and also to abstain from doing plaintiffs and the defendant; the salary of the certain other acts, the court hus jurisdiction to defendant bas by mutual agreement been raised restrain the breach of the negalive covenants, to $2,000 per åpnum, and the services of tbe though there may be no juris.liction 10 compel defendant, by reason of bis familiarity with the specitic performance of the allirmative cove plaintiffs' business and knowledge of their cus- epants. tomers, acquired by bis said employment since 2 Story, Eq. Jur. $ 722 a. See also 3 Wait, said 14ib day of March, 1879, have become and Act. and Def. 693; Lumleyv. Wagner, 1 DeG. now are of special value to the plaintits; and M. & G. 604; Stiff v. Cassell, 2 Jur. N. S. 348; the plaintiffs desire tbat the defendant should Kemble v. Kean, 6 Sim. 333. continue in their employ and faithfully keep When one partner contrarts that he will exand perform all the obligations of said agree- ert bimself for the benetit of the partnership, ment.

a court of equity cannot compel the specific “The plaintiffs are informed and believe, and performance of that part of ine agreement; yet therefore aver, that the defendant secretly and if he has also contracted tbat he will not carry with intent that the fact sbould not be known on the same trade with other persons, the court to the plaintiffs, pow is and for some time past will restrain him froin breaking that part of his has been conspiring and negotiating with sun agreement. dry persons and corporations to the plaintiffs 2 Story, Eq. Jur. § 722. See also Printing unknown, but all of wbom, as the plaintiffs & N. Registering Co. v. Sampson, L. R. 19 Eg. believe, are their competitors in business, with 462; Diamond Match Co. v. Roeber, 106 N. Y. the purpose and intent of engaging, in connec. 473, 432, 483. 9 Cent. Rep. 181; Holge v. Sloan, tion with such persons and corporations, in the 107 N. Y. 241, 9 Cent. Rep. 870. manufacture and sale of cutlery and silver- Messrs. C. Ř. Ingersoll and F. L. Hun. plated flat and hollow ware, and with the ingerford for appellee. tent and purpose of allowing bis name to be used and employed in connection with such Andrews, Ch. J., delivered the opinion of business as a s'ampon such silver-plated ware, the court: and with the further intent of using in the in- Contracts for personal service are matters for terest of and for the advantage of such persons courts of law, and equity will not undertake a all his knowledge and information of the specific performance. 2 Kent, Com. 258, note plaintiffs' business and of their customers b; Hamblin v. Dinneford, 2 Elw. Ch. 529; wbich he has obtained by virtue of his employ. Sanquirico v. Benedetti, 1 Barb. 315; Ilaight v. ment as aforesaid. And the plaintiffs further Bargeley, 15 Barb. 499; DeRirafinoli v. Cor. say that the defendant threatens to leave their setti, 4 Paige, 214. employ and to engage with such other parties A specitic performance in such cases is said in the business of manufacturing and selling to be impossible because obedience to tbe decutlery and silver-plated flat and hollow wire, cree cannot be coinpelled by tbe ordinary and to allow bis name to be used and employed processes of the court. Contracts for personal in convection with such business as a stump acts have been regarded as the most familiar upon such silver plated goods and otherwise; illustrations of this doctrine, since the court all of which would be in violation of the de cannot in any direct mapper compel the party fendant's agreement with the plaintiffs, and to render the service. would deprive the plaintiffs of all the benetits The couris in this country and in England and advantages secured to them by said agree.formerly held that they could not negatively ment and to which they are justly entilled. euforce the specific performance of such conAnd the plaintiffs aver that such conduct and tracts by means of an iujunction restraining doings of the defendant would occasion great their violation. 3 Wait, Act. and Def. 754; and irreparalie loss and damage to the business Rutland Marble Co. v. Ripley, 77 U. S. 10 of the plaintiffs, and the use of defendant's Wall. 340 [19 L. ed. 957); Burton v. Marshall, name as a stamp or trade mark on said cutlery, 4 Gill (Md ) 487; De Pol v. 8 uke. 7 Robt. (N. silver-plated fat and hollow ware as aforesaid. Y.) 230; Remble v. Kean, 6 Sim. 333; Bildirin would cause the same to so resemble tbe similar v. Society for Diffusion of Useful linowledge, 9 goods made and sold by the plaintiffs and Sim. 393; Fothergill v. Rowland, L. R. 17 Eq. stamped with the plaintiffs' stamps and trade. 132. marks, of wbicin the most prominent part is ibe The courts in both countries bave, however, word ‘Rogers,' as that the same would be li receded somewhat from the latter conclusion, able to be mistaken for those of the plaintiffs, and it is now held that where a contract slipand would be liable to be sold and would be ulates for special, unique or extraordinary persold as and for goods made and sold by the sonal services or acts, or where the services to plaintiffs, and thereby great and special loss be rendere l are purely intellectual, or are peand damage would be done to the plaintiffs inculiar and individual in their character, the their business, for which there would be no adcourt will grant an injunction in aid of a speequate remedy at law. And they aver that the citic performance. But wbere the services are defendant bas little, if any, property, and sub- material or mechanical, or are not peculiar or stantial damages, if recovered, could not be individual, the party will be left to luis action enforced at law."

for damages. The reason seems to be that serv. The defendant demurred to the complaint, ices of the former class are cf such a nature and the court sustained the demurrer, whereas to preclude the possibility of giving the inupon plaintiffs took this appeal.

jured party adequate compensation in dam. ages, while the loss of services of the latter class in connection with such business as a stamp (D can be adequalely compensated by an action the ware manufactured; and ibey say suca i se for damages. 2 Story, Eq. Jur. 958 a; 3 would do them great and irreparable injury. Wait, Aci. and Def. 754; Pom. Eq. Jur. If the plaidiiffs ou ned the name of tbe defind$ 1313; Bank of California v. Fresno Canal & ant as a trade-mark they could bave no ififi1. Co. 69 Cal. 201; Singer Sewing Marh. Co. v. culty in protecting their ownership. But hey Union ljutton hole & E. Co. 1 Holmes, 253; make no such claim; and all arguments or Lumley v. Wagner, 1 De G. M. & G. 604; analogies drawn froin the law of trade n arks South Wales R. Co. v. Wythes, 5 DeG. M. & G. may be laid wholly out of the case. 880; Nontaque v. Flockton, L. R. 16 Eq. 189. There is no averment in the complaint that

The contract between the defendant and the the plaintiffs are entitled to use, or that in fact plaintiffs is made a part of the complaint. The they do use, the name of the defendant as a services which the defendant was 10 perform stanıp on the goods of their own manufacture; for tbe plaintiffs are not specified therein, oth nor any averment that such use, if it exists, is erwise than that they were to be such as shoull of any value 10 ibem. So far as the court is be devolved upon bim by the general manager; informed the defendant's name on such goods "it being understood that such duties may in. as the plaintiffs manufacture is of no more clude traveling for said Companies whenever value than the names of Smitb or Stiles or Jobo in the judgment of said general agent the in. Doe. There is nothing from which the court terests of the business will be thereby pro- can see that the use of the defendant's pane by moted;” and also “including such duties as the plaintiffs is of any value to them, oi that traveling for said Companies as said general its use as a stamp by ibeir competitors would agent may devolve upon him, including also do them any injury other than such as might ally duties as secretary or other officer of eitber grow out of a lawful business rivalry. If by or both of said Companies as said Companies reason of extraneous facts the name of the demay desire to bave bin perform." These serv. fendant does bave some special and peculiar ices, while they may not be material and me value as a stamp op ibeir goods, or its use as a chanical, are certainly not purely intellectual, stamp op goods manufactured by lbeir rivals por are they special, or unique, or extraorui. would do them some special injury, such facts Dary; por are they so peculiar or individual ought to bave been set out, so that the court that they could not be performed by any person might pass upon them. In the absence of any of ordinary intelligence and fair learning. If allegation of such facts we must assume that this was all ibere was in the contract it would none exist. be almost too plain for argument that the The plaintiffs also aver that the defendant plaintills should not bave an injunction. intends to make known to their rivals the

The plaintiffs bowever insist that the neg. knowledge of their business, of ibeir customers, ative part of the contract, by which the de. etc., which be bas obtained while in their emfendant stipulated and agreed that he would ploy. But here they have not shown facts not be engaged in or allow his name to be em- wbich bring the case within any rule that would ployed in any manner in any other Lardware, require an employé to be enjoined from discutlery, flat-ware or hollow-ware business, closing business secrets which bebas learned in eiiber as a manufacturer or seller, fully entitles the course of bis employment and wbich he bas them to an injunction against its violation. contracted not to divulge. Peabody v. Norfolk, They aver in the complaint, on information 98 Mass. 452. and belief, that the defendant is planning with There is no error in the judgment of the Sun certain of tbeir competitors to engage with perior Courl. them in business, with tbe intent and purpose In this opinion the other Judges concurred. of allowing his name to be used or employed




plaint might have been amended if the objection had been made in the lower court,

(Barch 15, 1890.)


the Circuit Court for Giant County in fa1. An Indian is not inca pable of giving vor of plaintiff io an action to recover the a valid promissory note by reason of the amount alleged to be due on a promissory note. fact that he belongs to a band which is governed

Affirmed. by ancient Indian customs and retains a tribal

Tbe facts are fully stated in the opinion. organization, unless it grows out of some contract

Mr. George W. Harvey for appellant. prohibited by law.

Mr. Alvah Taylor for appellte. 2. The fact that the lands of a defend.

ant, who is an Indian, are not liable to levy and sale under a judgment, is no ground for refusing

Coffey, J., delivered the opinion of the a judgment against him.

court: 8. Rendering judgment for a sum in

This was a suit by the appellee against the excess of that covered by the prayer of the appellavt based upon a promissory note dated complaint is not ground for reversal, wbere Darcb 7, 1872, and due one day after date. The

it does not exceed the amount due, as the com- I appellant answered, first admitting the execu. tion of the note in suit, but averring that the set off to the appellant in severalty; that the appellee ought not to recover on the same be- debt for which the vote in suit was executed cause be is a member of the Miami tribe of In- accrued in 1870; and that his lands so set off :0 dians; tbat he was at the dale of said note and bim under the Act of Congress are not liable to at the time the debt for which it was given ac levy and sale for the payment of said debt. crued, to wit, in 1870 and 1871, and bas at all Prayer that the appellaut be enjoined from times since con inueil to be, up to the present levying any execution tbat may issue on a judg. time, a member of tbe band of Me.cbing-go- ment rendered upon the note in suit upon said mesia, and has at all times been, renained and land, or from interfering with the same in any resided upon a reservation containing 6,400 manner. To these answers the court sustained acres of land, situate in the Counties of Grant a de murrer, and the appellant excepted. A trial and Wabash, in the Stale of Indiava, reserved by the court resulted in a finding and judgment by the Miami Indians in their Treaty of 1838 for appellee, from which tbis appeal is prosewith tle United States to the band of Me-to-cuted. smia, which reserve is again referred to in the The assignment of errors calls in question the Treaty of 1840 between the same parties, by correctness of the ruling of the circuit court in wbich, as amended by the Senate, the United sustaining the demurrer to these answers, as States agreed to convey said land by paleut to well as the propriety of the ruling in overruling Me-ching-go-mesia, in trust for his band, who a motion for a new trial. It is earnestly con. bave ever since remained upon said lands; that tended by the appellant that tbe band of In. said Me ching go-mesia remained the chief of dians of which bc is a meniber are wards of the said band until his death, wbich occurred in United States government, and that by reason the year 1877; that immediately upon his death thereof each niember of said band is under is the said band, in accordance with their ancient gal disability, and is incapable of making a customs, proceeded to and did select William binding contiact. It is admired by the appelPe-conga, one of said band, as their chief, who lưe, as we understand bis brief, that the band is still aciing as such; that up to the 1st day of to which the appellant belongs is, in a sense, January, 1881, tbev lived upon their said lands, the ward of the government of the United practicing and adhering to their ancient man. States; but it is denied that any law exists creatners and customs, bolding but little intercourse ing a general legal disability, avd that the in. with the whiles from choice; that they settled dividual members of said band are not prolib their troubles ard disputes among theniselves, ived from contracting debts, and making sich without resorting to the courts of the State; contracts as the one now in suit. As all pero that in their intercourse with each otber they sons pot under legal disabilities are capable of speak their own lauguage; that the greater part making and entering into binding contracts, it of said trile cannot speak the English language follows that the noie in snit is a binding obli. intelligently: that their tribal organization still gation, unless it can be shown that the appel. remains uvaltered; tbat tbey hold their councils lunt, at the time of its execution, was under for the same purposes as in former times, and duress or some legal disability, or unless it can are governed by their ancient cusioms; that be shown that the making of such note was said band did poi go into the courts of the Stale prohibited by some law, or contrary to the pubfor any redress until the year 1891; tbat they lic policy. In support of bis contention, the are a distinct people; that tbey did not, until appellant cites the cases of ('herokee Nation v. the 1st day of January, 1881, participate in our Georgia, 30 U. S. 5 Pet. 1 (8 L. ed. 25); l'on civil or poli: ical privileges, nor were tbey in cester v. Georgia, 31 U. S. 6 Pet. 515 [8 L. ed. any way regarded as members of our body 483), and Goodell V. Jackson, 20 Jobus. politic, baving no right to vote or participate in 693. our elections, or to serve in any official capac- While it was held in the case of Cherokee ity; that they were, in every particular, waris Nation v. Georgia, suma, ibat the Cherokee of ibe United States, and not bound by, or Nation was a separate State, a distinct political amenable to, the laws of the State of Indiana; society, separated from others, capable of that the defendant bas at all times since bis managing iis own affairs and governing itself, birth remained with, and participated in the it was beld, also, that it was not a foreign State, ancient manners, customs and rigbts of, said in the sense of tbe Constirution of the United band, as one of its members, and fully acted States, and could not maintain an action as with said band, taking upon himself and exer. such in the courts of the United States. cising no other or different righis or privileges The case of Worcester v. Georgia, supra, was than the band, as a whole, used or exercised, as a prosecution against Worcester, a wbile misheretofore stated; that he has never at any time sionary, who resided wiibin the territory resince the 1st day of January, 1881, or since the served by treaty with the government of the execution of said vote, agreed or contracted or United States to the Cherokee Nation. The consented to pay said debt, or in any manner prosecution was instituted under a law of the acknowledged the same, but bas at all times State of Georgia making it a penal offense to repudiated and refused to pay the same, or any reside in that territory without a license from part thereof,

the goveruor of the State. It was held ibat the Tbe second paragraph of the answer avers, Cherokee Nation was a distinct community, substantially, the same facts as those set out in occupying its own territory, with boundaries the first paragraph, with the additional aver accurately described, in whicb the laws of the ments that the land reserved to the band of State of Georgia could have no sorce, and which Miami Indians, of wbich the appellant is a the citizeos of Georgia bad no right to enter, member, has been parutioned among the mem except with the assent of the Cherokees them. bers of said band under an Act of Congress, by selves, or in conformity with the treaties, and means of which certain of said lands have been with the Acts of Congiess, as the whole inter

« AnteriorContinuar »