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.
If the executory covenants are in part affirmative ones which cannot be enforced by specific performance and in part negative ones, the question whether equity will grant relief against breach of the negative covenants by injunction is one on which there is a conflict of authority. The cases in which this question is presented are usually cases of contracts for personal services. The original rule in this country seems to have been that equity would grant no relief, affirmative or negative, in contracts for personal services,1 even if there was an express negative covenant.2 Modern courts have, however, receded somewhat from this extreme and uncompromising position.3 In some cases it has been held that if the services contracted for are unique in character and if by reason of the special knowledge, skill, ability or reputation of the party rendering them it is difficult for the adversary party to provide a substitute therefor, equity will give an injunction against the breach of a negative covenant by the employe not to render services to any other person during his term of employment.4 Thus an injunction has been given against breach of a contract by an actor,5 or a base-ball player,6 each of peculiar ability and great reputation. If there is no express negative covenant that the employe will not accept employment elsewhere during his term, some courts have refused to enjoin him from accepting other employment.7 In other jurisdictions it is held that injunction may be given even if there is no express negative covenant to refrain from accepting employment elsewhere, since such a negative covenant is necessarily inferred from the affirmative covenant to perform services for the party seeking relief.8 If the services contracted for are not of a unique or extraordinary character, equity will not enjoin the employe from accepting other employment during his term.9 Under this principle it has been held that a traveling salesman and secretary,10 a special insurance agent,11 a collector,12 railroad employes,13 or acrobats and tumblers,14 will not be enjoined from accepting other employment during their term of employment, if it is not shown that their services are of extraordinary and unique value. It has, however, been held that a court goes too far in holding that injunction should be given only when it is impossible to replace the employe.15
5 Quin v. Havenor, 118 Wis. 53; 94 N. W. 642.
1 Rutland Marble Co. v. Ripley, 10 Wall. (U. S.) 339; De Rivafinoli v. Corsetti, 4 Paige (N. Y.) 264; 25 Am. Dee. 532. Actors. Kemble v. Kean, 6 Sim. 333; Sanquirico v. Benedetti, 1 Barb. (N. Y.) 315; Hamblin v. Dinneford, 2 Edw. Ch. (N. Y.) 529.
2 Sanquirico v. Benedetti, 1 Barb. (N. Y.) 315.
3 Thus Kemble v. Kean, 6 Sim. 333, was expressly overruled in Lumley v. Wagner, 1 De G. M. & G. 604.
4 " Where a contract stipulates for special unique or extraordinary personal services or acts, or where the services to be rendered are purely intellectual or are peculiar and individual in their character, the court will grant an injunction in aid of specific performance. But where the services are material or mechanical, or are not peculiar or individual, the party will be left to his action for damages." The William Rogers Mfg. Co. v. Rogers, 58 Conn. 356. 364; 18 Am. St. Rep. 278; 7 L. R. A. 779; 20 Atl. 467.
5 Lumley v. Wagner, 1 De G. M. & G. 604; Montague v. Floekton, L. R. 16 Eq. 189.
6 "He may not be the sun in the base ball firmament, but he is certainly a bright particular star." Philadelphia Ball Club v. Lajoie, 202 Pa. St. 210, 217; 90 Am. St. Eep. 627; 58 L. R. A. 227; 51 Atl. 973.
7 Actor. Burton v. Marshall, 4 Gill (Md.) 478; 45 Am. Dec. 171.
8 Actor. Montague v. Floekton, L. R. 16 Eq. 189. See obiter to same effect in Cort v. Lassard, 18 Or. 221; 17 Am. St. Rep. 726; 6 L. R. A. 653; 22 Pac. 1054.
9 Chain Belt Co. v. Von Sprekel-sen. 117 Wis. 106: 94 N. W. 78.
10 The William Rogers Mfg. Co. v. Rogers, 58 Conn. 356; 18 Am. St. Rep. 278; 7 L. R. A. 779; 20 Atl. 467.
nBurney v. Ryle, 91 Ga. 701; 17 S. E. 986.
12 Sternberg v. O'Brien, 48 N. J. Eq. 370; 22 Atl. 348.
13 Arthur v. Oakes, 63 Fed. 310; 25 L. R. A. 414; Toledo, etc., Ry. v. Pennsylvania Co., 54 Fed. 730; 19 L. R. A. 387. Contra, Farmers', etc., Co. v. Ry., 60 Fed. 803; 25 L. R. A. 414 (in foot-note).
14 Cort v. Lassard. 18 Or. 221; 17 Am. St. Rep. 726; 6 L. R. A. 653; 22 Pac. 1054.
15 Philadelphia Ball Club v. Lajoie, 202 Pa. St. 210; 90 Am. St. Rep. 627; 58 L. R. A. 227; 51 Atl. 973.