field has an extensive territory and an irregular outline, and contains the village of Litchfield in which the defendant dwelt and had his office at the time and where the contract was drawn and executed. It was held that the contract was not void in not fixing a period within which the defendant was not to practice dentistry within those limits. It seems that where a contract is reasonable when made, subsequent circumstances, such as the covenantee's ceasing to do business, do not affect its operation. In Clark v. Crosby, where upon consideration that the plaintiff, a dentist, would keep himself supplied with mineral teeth by purchases of the defendant, the latter agreed not to sell such teeth to any other person in the place where the plaintiff resided, it was held that the contract, being only in partial restraint of trade, was not illegal.2 1 Cook v. Johnson, 47 Conn. 175. "As this belongs to the class of contracts in restraint of trade, three requisites are essential to its validity: 1st. It must be partial or restricted in its operation in respect either to time or place. 2d. It must be on some good consideration. 3d. It must be reasonable, that is, it should afford only a fair protection to the interests of the party in whose favor it is made, and must not be so large in its operation as to interfere with the interests of the public. The motion does not disclose that it was claimed in the court below that the contract was lacking in any of these elements, but only that it was too indefinite and uncertain in its language to be enforced. The respondent admits the making of the contract, and full performance on the part of the petitioner, but concedes that he has paid no attention to it whatever. except to keep the money paid under it. This is not very creditable, to say the least, and the excuse given does not at all relieve him in a moral point of view. He says, in effect, that inasmuch as he did not understand, by the language which he used in the contract, where the circle with its ten mile radius would be drawn, he will locate within the town of Litchfield, where he can do the other party the most injury, and appropriate to himself the good will of the business he had sold, knowing absolutely such conduct to be contrary even to his own understanding of the contract. Such a position might well excuse a court of equity from giving any construction to the contract merely for his future guidance.” Ibid., 176. 2 Clark v. Crosby, 37 Vt. 188. An instrument under seal was executed upon a sale made by the plaintiff to the defendants, by which the former sold to the latter all his interest in the manufacture and sale of porcelain teeth in the city of New York, with his stock on hand, and the good will of the business. The plaintiff covenanted to instruct one of the defendants in the art of manufacturing porcelain and in § 62. Application of the Rule to the Profession of Teaching. Where a school building, or the privilege of conducting a school at an established rate of tuition, is sold by one teacher to another, a contract binding the grantor not to open a school within a fixed territorial limit, if reasonable, will be sustained. Where A, a school teacher, was induced by B, another school teacher, to purchase of B the lease of an academy under inducements held out by B that, if he could sell, he would quit teaching in the locality, and on these inducements the purchase was made, it was held that equity would enjoin B from teaching a school in the locality during the lease.1 corruptible teeth, and to furnish him with his recipes therefor. The agreement also contained the following clause: And the party of the first part will not carry on, or cause to be carried on, by any person with whom he shall be interested, the manufacture of porcelain teeth, or impart the knowledge of manufacturing the same to any person other than as aforesaid." It was alleged in the complaint, that the said art of manufacturing porcelain teeth in which the defendant was to be instructed was a secret of the plaintiff and known to be such by the defendant. Held, on demurrer, that the covenant in question was valid, and not one in restraint of trade. Alcock v. Gilberton, 5 Duer, 76. 1 Spier v. Lambdin, 45 Ga. 319. "In the present case, we think the restriction is unreasonable. Not as a rule of law, because it extends throughout the State, but because it extends beyond any apparently necessary protection which the complainant might reasonably require, and thus without benefiting him it oppresses the respondent, and deprives people in other places of the chance which might be of fered them to learn the French and German languages of the respondent. The complainant urges that he has established a school in Providence, at great expense, to teach languages by a new method, where scholars come from all parts of the State; and that, by reason of the small extent of the State and the case of passing to and fro within it, such a restriction is reasonable and necessary to keep teachers from setting up similar schools and enticing away his scholars. All this may be true with reference to Providence and its vicinity. But while, as is averred, many pupils, from all parts of the State, may come to Providence as a center, for the same reason few would go to other places. For example, a school in Westerly or Newport would not be likely to draw scholars from Providence, or places from which Providence is more easily reached. Indeed, the complainant says he offered, after the contract was made, and now offers to allow the respondent to teach in Newport, thereby admitting that the restriction is greater than the necessity. The people of Newport, Westerly and other § 63. Restraint upon the Services of Artists and Actors. An engagement on the part of an artist or an actor under which the party is prohibited from entering the service of a rival concern, during a designated period, if the restraint is not unreasonable, will be sustained. In. Fredericks v. Mayer, it was held that an artist who has entered into a written agreement to perform his professional services for a party, for a limited time, at a stipulated price, and binds himself not to work for any other house or person during said time, and the agreement is mutual that the party who engages shall employ and pay him according to the agreement, may be restrained by injunction from performing such services, during the term, for any other person than the party to the agreement, without the consent of the latter. The principle is this: That services which involve the exercise of powers of mind which, in many cases, as of writers and performers, are purely and largely intellectual, may form a class in which the court will interfere. Such services are generally individual and peculiar. They exist in nature, or in degree, with some modification of character or expression in the one person. This element of mind exhibited in the subject of the contract, as distinguished from what is mechanical and material, furnishes a rule of distinction and decision.1 places have the right to provide for education in languages without coming to Providence. It is hard to believe, and the bill does not aver, that losing the few, if any, from such place, who might leave the complainant, if the respondent were to teach there, would seriously affect the complainant's school. Teaching in Providence, or in any place from which the complainant receives a considerable number of pupils, might affect it, and a restriction limited accordingly might be reasonable; but we think it unreasonable to go further." Herreshoff v. Boutineau, 17 R. I. 3, 7. 1 Fredericks v. Mayer, 13 How. Pr. 566. See also Webster v. Dillon, 3 Jur. (N. S.) 432; Howard v. Hopkins, 2 Atk. 371; Fox v. Scard, 33 Beav. 327; Jones v. Heavens, L. R. 4 Ch. D. 633; Barnes v. McAllister, 18 How. Pr. 534; Nessle v. Reese, 29 How. Pr. 382; Bradley v. Bosley, 1 Barb. Ch. 125; Dupre v. Thompson, 4 Barb. 279. "It appears to me, on the plainest ground, that an engagement to perform for nine months at theater A, is a contract not to perform at theater B, or at any other theater whatever. How is a man to perform his duty to the proprietor of In the leading English case a lady, not of age, and her father, by writing signed in a foreign country, agreed with a theatrical manager to sing at his theater for a definite period. By a clause subsequently acceded to and signed a theater if, when he has engaged himself to perform for him, he is to go away any night that he may be wanted to another theater? I must treat Mr. Flockton as if he were the greatest actor in the world, and as if wherever he went the public would run after him; and according to this, if a proprietor engages an actor to perform for him, he is not, because he is only wanted three nights in the week, to be at liberty to go and perform at any other theater during the other three nights, and thereby take away the advantage of the contract which he has entered into with his employer. That, in my opinion, is utterly inconsistent with the proper construction of the contract. There is no doubt whatever, that the proper construction of these contracts is, that where a man or woman engages to perform or sing at a particular theater for a particular period, that involves the necessity of his or her not performing or singing at any other during that period." Montague v. Flockton, L. R. 16 Eq. 189, 198. The plaintiff, the manager of a London theater, engaged the defendant, a provincial actor, desirous of appearing on the London stage for two years. Though there was nothing expressed on the subject, the court inferred an engagement on the part of the plaintiff to employ the defendant for a reasonable time, and on the part of the defendant not to perform elsewhere. The plaintiff (under these circum stances) delayed the defendant's appearance for five months, the defendant broke his engagement and went to another theater. Held, that he had a right to do so, and that the plaintiff was not entitled to an interlocutory injunction to prevent his performing there. Fetcher v. Montgomery, 33 Beav. 22. The defendant agreed with a theatrical company to give them his services as an actor for a specified time, and agreed not to give his services elsewhere without their written permission. The engagement contained a stipulation to the effect that if he should break his engagement, he obligated himself to pay to the company a conventional fine of $200, to be forfeited by any violation of the contract; and then provides as follows: "This sum is already forfeited by any violation of the contract, and requires no particular legal proceedings for its execution." On a bill for an injunction filed by the company against the defendant to restrain him from performing at another theater, it was held that the complainants, having fixed by their own estimate the extent of injury they would suffer from a non-observance of this condition in the contract, and having indicated that the only form in which they could seek redress, and recover the stipulated penalty or forfeiture, was a court of law, were precluded from resorting to a court of equity for relief by way of injunction, on the ground that a violation of this part of the con by her agent, and to which she and her father afterwards assented, she engaged "not to use her talents at any other theater nor in any concert or reunion, public or private, without the written authorization of" the manager. The lady engaged with the manager of a rival theater to sing at his theater within the defined period, and her debut was announced in the usual public advertisements. Upon motion, in a suit by the manager against the lady, her father and the manager of the rival theater, it was objected that the positive and negative terms formed but one agreement; and that, as it had been settled that the court could not by injunction enforce the positive term that the lady should sing, it could not enforce the negative stipulation; but held notwithstanding (Kemble v. Kean), that the court would prevent the violation of the negative term, and restrain the lady from singing at the rival theater, though the positive term of the agreement could not be enforced.1 In a case in Maryland it was held that upon a contract made by a husband for himself and his wife, that his wife should perform at the theater of the manager named therein during a certain period, for a certain salary, a court of equity will not enjoin the wife from performing at any other theater, during the same period; nor the husband from permitting her to change her residence; nor another manager from tract would result in irreparable damage and injury to them. Hahn v. Concordia Society, 42 Md. 460. Defendant having contracted to perform at plaintiff's theater, at a fixed compensation, for a certain time, and not to perform elsewhere during that time, made an agreement to perform in another theater before the expiration of the contract. Held, that he might be restrained by injunction from carrying out that agreement, there being no demand in the complaint for a decree of specific performance, and no uncertainty in the contract as to time, place or substance. In such a case a writ of ne exeat, if necessary to carry out the injunctions, will issue. Hayes v. Willis, 11 Abb. Pr. (N. S.) 167. Contracts for the exclusive services of distinguished artists in theatrical representations are not capable of definite determination, and violations of them may be properly restrained by injunction. Where damages for the violation of a covenant are liquidated by agreement, semble, an injunction will not be allowed. McCaull v. Braham, 16 Fed. Rep. 37. 1 Lumley v. Wagner, 5 De G. & Sm. 485. |