In view of the negative contracts under consideration it is obvious that the rule of mutuality, suggested by Ames81 must be modified, and Professor Gilbert has suggested two possible modifications, which seem to reconcile the decisions.
"Equity will not compel specific performance by a defendant if after performance the common-law remedy of damages would be his sole security for the performance of the plaintiff's side of the contract, excepting in the case of the enforcement of negative covenants in personal service contracts where affirmative performance by the defendant would be continuous, synchrohe would employ A as cutter at a certain allowance. The bill was filed simply for an injunction to prevent A from setting up as a tailor within the prescribed limits, and the Vice-Ghanoellor granted that injunction. It was objected that the court could not grant the injunction when there was something remaining to be performed, and that A had a right to be employed as a cutter, which right this court would not even attempt to deal with or enforce as against C. Hie injunction was however granted, and properly, since it was necessary to insure to the plaintiff the return for the sum of money, which he had already paid for the business.
79 Stocker v. Wedderburn, 3 K. & J. 393; Cincinnati Exhibition Go. v. Maroans, 216 Fed. 269.
80 See, however, Welty v. Jacobs, 171 111. 624,49 N. E. 723; Bartholomae, etc., Co. v. Modzelewski, 269 111. 539, 109 N. E. 1058. Cf. Southern, etc., Co. v. Garden City Sand Co., 223 111. 616, 79 N. E. 313, 9LR.A.(N. S.) 446.
81 See supra, Sec.1440.
"Equity will not compel specific performance by a defendant if after performance by the defendant it is either certain or probable that the defendant will have to resort to the common-law remedy of damages to secure performance of the plaintiff's side of the contract." 82 The latter form seems preferable, There is no reason why the principle embodied in the decision of Lumley v. Wagner 83 should be confined to contracts of personal service.84