This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
We pass from a consideration of the equitable remedy of specific performance of affirmative covenants to the remedy of in junction, given to restrain a breach of negative covenants. To enjoin a party to a contract from breaking some provision thereof is a "negative specific performance."1 Such a suit is said to be "a case, so far as the covenant is concerned, for a negative specific performance by means of an injunction."2 A bill in equity seeking such relief is, "though not strictly a bill for the specific performance of a contract, is in substance a bill of that kind."3 The relief given by this remedy is specific and not compensatory.4 Such remedy is, of course, especially suitable to negative covenants, where the injunction can restrain a party to the contract from doing an act which is forbidden by such contract.5 The general theory on which such remedy is given is the same as that underlying specific performance.6 The absence of a plain, adequate and complete remedy at law is therefore essential. Accordingly injunction cannot be given to restrain the breach of a contract by a board of education to adopt a certain arithmetic in the schools of a city for the period of five years,7 or a contract for the sale of bark, "which the vendor is threatening to sell to other persons.8 Since liquidated damages can be recovered,9 it follows that if the parties to a contract have made a valid stipulation for the liquidated damages to be paid in case of breach, they have by their own agreement provided a remedy at law which they evidently consider complete and adequate. Accordingly injunction will be denied where liquidated damages are provided for, even in cases where, without such provision, injunction would be given on the ground that the remedy at law is not adequate.10 On the other hand, since a penalty cannot be recovered,11 it follows that a stipulation for a penalty does not prevent an injunction from being awarded if without such provision the injunction would have been granted.12 Accordingly in cases of this sort, as in specific performance, relief will not be given in equity if the remedy at law in the form of money damages is plain, adequate and complete.13 There would, accordingly, be little to add to what has already been said of specific performance if it were not that in some jurisdictions the negative remedy of injunction is broader than that of specific performance, and that the former relief is given in same cases in which the latter is denied. In comparing this doctrine with that of specific performance the cases may be grouped into three general classes: (1) Cases in which all the covenants have been perstantially coincident with its jurisdiction to compel specific performance by an affirmative decree." Dills v. Doebler, 62 Conn. 366 (368) ; 36 Am. St. Rep. 345; 20 L. R. A. 432; 26 Atl. 398.
1 Dills v. Doebler, 62 Conn. 366 (368); 36 Am. St. Rep. 345; 20 L. E. A. 432; 26 Atl. 389.
2 Muncie Natural Gas Co. v. Mun-cie, 160 Ind. 97, 110; 60 L. E. A. 822; 66 N. E. 436.
3 Chicago, etc., Co. v. Lake. 130 I11. 42. 60; quoted in Welty v. Jacobs, 171 I11. 624, 631; 40 L. E. A. 98; 49 N. E. 723. To the same effect see South Chicago City Ey. v. Ey.. 171 I11. 391; 49 N. E. 576.
4 Williams v. Montgomery, 148 N. Y. 519; 43 N. E. 57. "A court of equity, where there is a basis for the assertion of its jurisdiction, will not suffer men to depart from their agreements at pleasure, leaving the party with whom they have contracted to the mere chance of damages which a jury may give." Muncie Natural Gas Co. v. Muncie, 160 Ind. 97, 110; 60 L. E. A. 822; 66 N. E. 436. formed except the negative covenants for which injunction is sought;(2) cases in which the executory affirmative covenants are such that specific performance could be given and injunction is sought to enforce the negative covenants; and (3) cases in which the executory covenants are such that specific performance could not be given and injunction is sought to enforce the negative covenants.
5 Hapgood v. Eosenstock, 23 Fed. 86.
6 "The jurisdiction of equity to grant such an injunction is sub.
7 Attorney General v. Detroit, - Mich. - ; 95 N. W. 746.
8 Mundy v. Brooks, 204 Pa. St. 232; 53 Atl. 1000.
9 See Sec. 1171.
10 Dills v. Doebler. 62 Conn. 366;
36 Am. St. Rep. 345; 20 L. R. A. 432; 26 Atl. 398; Martin v. Murphy, 129 Ind. 464; 28 N. E. 1118; Coe v. Ry., 10 O. S. 372; 75 Am. Dec. 518.
11See Sec. 1170.
12 Ropes v. Upton, 125 Mass. 258.
13 Dills v. Doebler, 62 Conn. 366; 36 Am. St. Rep. 345; 20 L. R. A. 432; 26 Atl. 398; Gas Light, etc. Co. v. New Albany, 139 Ind. 660 r 39 N. E. 462.