Equity will not enforce a contract specifically which the defendant has a right under the contract to terminate immediately, as a contract to enter into a partnership,14 or lease,15 terminable at the will of the defendant. Partly from confusion with this principle, partly for alleged lack of mutuality, specific performance has been refused in a number of cases because the plaintiff had a power given him under the contract to terminate, it after a certain time or on giving a certain notice, or on paying a trifling sum of money, and no such power was given the defendant.16 There seems no foundation for any such broad rule.17 Doubtless such a contract may be so harsh or one sided
11 O'Brien v. Boland, 166 Mass. 481, 44 N. E. 602; Thomason v. Backer, 176 N. Car. 622, 97 S. E. 654,2 A. L. R. 626; Watkins v. Robert-am, 106 Va. 269, 54 S. E. 33,5 L. R. A. (N. S.) 1194, 115 Am. St. Rep. 880; Weaver v. Burr, 31 W. Va. 736, 8 S. E. 743; Wfflard v. Tayloe, 8 Wall. 557, 19 L. Ed. 501. But see contra- Bode v. Levy, 43 Col. 482, 96 Pac. MO, 24 L. R. A. (N. 8.) 91, 127 Am. St Bep. 123; Corbett v. Cronkhite,
239 111 9, 87 N. E. 874; Crandall v. Willig, 166 111. 233, 46 N. E. 755. See also Levin v. Diets, 194 N. Y. 376, 87 N. E. 454, 20 L. R. A. (N. S.) 251, and the criticism of it by Harlan F. Stone in 16 Col. L. Rev. 443, 452.
12 See supra, Sec.61.
13 E. g. Oraybill v. Brugh, 89 Va. 895, 17 S. E. 558, 21 L R. A. 133, 37 Am. St. Rep. 894.
14 Hercy v. Birch, 9 Ves. 357; Wilcox v. Williams, 92 Hun, 250, 36 N. Y. S. 944. A qualification is, however, stated in St. Joseph Hydraulic Co. v. Globe Tissue Paper Co., 156 Indiana, 665, 671, 59 N. E. 995.
"The general rule is that a partnership contract cannot be specifically enforced; that is, it is impracticable for a court of equity to compel one person to act in the relation of a partner to another; but if a party, on the faith of another's agreement to execute certain articles of copartnership, has placed himself in a position from which he can not be restored except by counting on the legal rights which were to be evidenced by the articles, a court of equity will decree the execution of the articles, although the partnership might be terminated by the defendant immediately. Satterthwait v. Marshall, 4 Del. Ch. 337, 354; Whit-worth v. Harris, 40 Miss. 483, 491; Birchett v. Boiling, 5 Munf. (Va.) 442. Note to Crawshay v. Maule, 1 Swan. 495, 513; Buxton v. Lister, 3 Atk. 383; England v. Curling, 8 Beav. 129; Gow on Partnership (1st Am. ed.), pp. 148, 149; Parsons on Partnership (4th ed.), $ 163, and notes; Story on Partnership (7th ed.), Sec.Sec.188, 189, and notes; 1 Md. Ch. Pr. (3d ed.) 411, note."
15E. g. because the plaintiff has already broken a condition. Rankin v. Lay, 2 De G, F. & J. 65, 72; Lillie v. Legh, 3 De G. & J. 204; St. Joseph, etc., Co. v. Globe, etc., Co., 156 Ind. 665, 671, 59 N. E. 995.
16 Rutland Marble Co. v. Ripley, 10 Wall. 339, 19 L. Ed. 955; Federal Oil Co. v. Western Oil Co., 112 Fed. 373, 121 Fed. 674, 57 C. C. A. 428; Iron Age Pub. Co. v. Western Union Tel. Co., 83 Ala. 498, 3 So. 449; Sturgis v. Galindo, 59 Cal. 28, 43 Am. Rep. 239; Watford Oil & Gas Co. v. Shipman., 233 HI. 9, 84 N. E. 53, 122 Am. St. Rep. 144; Ulrey v. Keith, 237 HI. 284, 86 N. E. 696; Fowler Utilities Co. v. Gray, 168 Ind. 1, 79 N. E. 897, 7 L. R. A. (N. S.) 726, 120 Am. St. Rep. 344; Rust v. Conrad, 47 Mich. 449, 11 N. W. 265, 41 Am. Rep. 720 (but see Grummett v. Gingrass, 77 Mich. 369, 388, 43 N. W. 999); Glass v. Rowe, 103 Mo. 513, 15 S. W. 334; Dockstader v. Reed, 121 N. Y. App. Div. 846, 106 N. Y. S. 795; Soloman v. Wilmington Sewerage Co., 142 N. C. 439, 55 S. E. 300, 6 L. R. A. (N. S.) 391. A number of suits on contracts of baseball players, in which the clubs employing them were given such options have been rested in part on the ground stated in the text. These cases are collected and discussed by Gilbert in 4 Cal. L. Rev. 114.
17 See Rolfe v. Rolfe, 15 Sim. 88; Franklin Tel. Co. v. Harrison, 145 U. S. 459, 36 L. Ed. 776, 12 Sup. Ct. Rep. 900; Singer Sewing Mach. Co. v. Union Button Hole, etc., Co., that equity should decline to enforce it and this explains some of the decisions; but the mere fact that one party to a contract is given a right which the other is not is no reason for refusing equitable relief.18 In the numerous cases where injunctions are granted restraining competition, the court enforces a promise of the defendant which has no correlative promise on the part of the plaintiff; and in the common case of an option for which payment has been made there is a promise to buy or sell as the case may be without a corresponding obligation on the other side.19 Such contracts are it is true ordinarily unilateral, but it surely can make no difference in the validity of an option that instead of paying $100 for it the promisee agrees to pay that or any other sum or to do any act. In such a contract the party having the option will in effect have a bargain for the property under option with a right to terminate all liability by paying the agreed price of the option; while the other party will have no corresponding power to terminate his liability. In New York a still further restriction has been placed on the right to enforce specifically terminable contracts. Where each
Holmes, 253; Philadelphia Baseball Club v. Lajoie, 202 Pa. 210, 51 Atl. 973, 58 L. R. A. 227, 90 Am. St. Rep. 627. Also criticisms by Pomeroy in 36 Cyc. 632, and by Schofield in 3 111. L. Rev. 43. In McCall Company v. Wright, 198 N. Y. 143, 153, 91 N. E. 516, 31 L. R. A. (N. S.) 249, the court said with reason, though with some lack of consistency with earlier decisions:
"A court of equity does not refuse under otherwise proper circumstances to restrain a continuing violation of a valid subsisting obligation not to injure another, simply because that other has the option to cancel the obligation by terminating the agreement which creates it. It seems to me that no element of mutual obligation is involved. One party has furnished a good consideration for which the other has agreed to refrain from doing certain things, and it is no excuse for a violation of the agreement while it lasts that the beneficiary may at some time terminate it. A perfectly familiar illustration of this class of actions is the one brought by a vendor of real estate to restrain a violation by the vendee of a restrictive covenant in the deed. There is at the time no mutual obligation resting on the vendor. But the vendee for a good consideration has agreed not to do certain things and I apprehend it would not be a defense to an action to restrain his violation that the vendor might in the future do something which would terminate the obligation."
18 Boonton v. United Water Supply Co., 83 N. J. Eq. 536, 91 Atl. 814. See also Conley Camera Co. v. Multi-scope & Film Co., 216 Fed. 892, 133 C. C. A. 96.
19 See Conley Camera Co. v. Multi-scope & Film Co., 216 Fed. 892, 133 C. C. A. 96; and supra, Sec. 1441.
party was given a right after three years to terminate an employment for five years, and it was so terminated by the plaintiff, the court refused to enforce a promise of the defendant not to give his services to a competitor of the plaintiff for the full term of five years.20 It will be noticed that the contract had been wholly performed on both sides, except the negative promise in question, and in substance the situation was exactly like the common provision that for a limited time after the expiration of a contract of employment the employee will not compete with his employer or enter into the service of a competitor. Such contracts are enforced in New York 21 as well as elsewhere unless they are under the particular circumstances harsh, or so unreasonably or unnecessarily in restraint of trade as to be opposed to public policy.