Lawrence v. Dixey

On September 12, 1905, the parties to this action entered into a contract evidenced by a letter written by the plaintiff to the defendant, accepted by the defendant, and which is as follows:

“Sept 12/05.

“Mr. Henry E. Dixey—Dear Sir: I hereby engage you as a star for a period of three years, you to receive the first year in lieu of salary, eight (8) per cent, of the gross receipts; and I agree that your share shall not be less than $300 per week, I to pay one-half of all except modern costumes required in each play. Tour first season will open not later than October 9, 1905, and shall continue so long as the gross receipts do not fall below $4,000 weekly, in which event we shall mutually consult as to the advisability of closing or continuing each season. After the first season your percentage of the gross receipts shall be ten per cent. (10%). W. N. Lawrence.

“I accept the offer.

“Henry E. Dixey.”

The parties acted under this contract until about the 9th of March, 1907, when the defendant refused to further perform the contract, whereupon this action was brought. There is no claim to recover any damages, but the relief demanded is an injunction restraining the defendant from performing for any person other than the plaintiff during the time mentioned in the contract annexed to the complaint, and that pending the action a temporary injunction issue. Upon the complaint and an affidavit a temporary injunction was granted, restraining the defendant “from rendering services as an actor to any person other than the plaintiff in this action until the further order of this court/’,with an order to show cause why this injunction should not be continued until final judgment. -Upon the hearing of this motion this

The contract, as will be noticed, consisted solely of an engagement of the defendant “as a star for a period of,three years”; the defendant to receive in lieu of salary 8 per cent, of the gross receipts, which should not be less than $300 per week, for the first season, and 10 per cent, of the gross receipts for the subsequent two seasons. The first season was to open not later than October 9, 1905, and was to continue as long as the gross receipts did not fall below $4,000 weekly. There was no provision as to when the subsequent seasons were to commence or end. There was no express obligation of the plaintiff to organize any company, provide any theater, or produce any play—no positive engagement to pay to the plaintiff any salary or compensation. There was no agreement by the defendant that he would not play for any one else, or on his own account. No negative covenants are contained in the contract, and the plaintiff justified an appeal to a court of equity upon the allegations in the complaint that the defendant is hopelessly insolvent and that any judgment which might be rendered against him in an action at law would be “uncollectible,” ánd that the plaintiff has no adequate remedy at law, for the reason that the damages he has sustained are uncertain and impossible of ascertainment.

>■ It is elementary that contracts for personal service cannot be specifically enforced by a court of equity (Standard Fashion Co. v. Siegel-Cooper Co., 157 N. Y. 60 , 51 N. E. 408 , 43 L. R. A. 854 , 68 Am. St. Rep. 749 ); but because of the special nature of contracts for the employ of actors or singers, although the affirmative contract cannot be enforced, courts of equity have enforced negative covenants, either express or implied, where there was no legal remedy for a breach of a contract, and where, upon the nature of the case, the parties to the contract, ready and willing to perform, have no remedy, except to prevent the breach of the negative covenants. But whether or not a court of equity will grant equitable relief in an action of this character is always addressed to the sound discretion of the court, and could never be enforced unless the parties seeking to enforce it are specifically, bound by the contract, so that there are enforceable reciprocal obligations, which are definite and enforceable. A court of equity should never by injunction imply obligations on one party when there are no clear and definite obligations imposed upon the other party to the contract. It may be that for the first season there was a definite arrangement for a particular period, which could be ascertained; but for the remaining two years there is nothing in the contract from which the period of employment could be ascertained. It is. not claimed— and the plaintiff certainly would repudiate such claim—that the defendant would be entitled to $300 for every week of the year. That certainly was not within the contemplation of the ‘parties; but it is

Whether or not this defendant will be bound to act for the plaintiff under this contract for the season commencing in the fall of 1907, it is not necessary now to determine. That question can be settled upon the trial of the action, which can be had before the season of 1907 commences, and no temporary injunction is necessary at this time to prevent a breach by the defendant of his contract for that season, if there is a contract which can be enforced in this action. But it seems to me that a temporary injunction is now quite unnecessary for the protection of the plaintiff’s rights, and should not then have been granted. As to the right of the plaintiff to enjoin the defendant from acting between the seasons during the period which the plaintiff insists he is not bound to pay, that, it seems to me, is entirely without jurisdiction. There can be no implied covenant that during the period of the year that is not covered by this contract the defendant should not do what he liked and play for others if he pleased. If the plaintiff had desired to restrain the defendant from performing for others when he was not to perform for the plaintiff, and when the plaintiff was not to pay him for performing, he should have inserted such a clause in his contract. I think, therefore, that we should reverse this order granting the injunction, without definitely determining whether or not the defendant is bound for the season commencing in the fall of 1907, leaving that question to be determined upon the trial of the action. ¡

The order appealed from should therefore be reversed, with $10 costs and disbursements, and the motion for a temporary injunction denied, with $10 costs, and without expressing any opinion that could influence the trial court as to the obligation of the defendant to perform the contract for the period for the seasons of 1907 and 1908.

PATTERSON, P. J., and McLAUGHLIN and LAMBERT, JJ., concur.

I think the written contract sufficiently definite for enforcement, and the character of the services to be render