Morris, John C., Jr.

English

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Louisiana Law ReviewVolume 6 | Number 4The Work of the Louisiana Supreme Court for the1944-1945 TermMay 1946Equity - Personal Service Contracts - Enforcementof Negative CovenantsJohn C. Morris Jr.This Note is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusionin Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact kreed25@lsu.edu.Repository CitationJohn C. Morris Jr., Equity - Personal Service Contracts - Enforcement of Negative Covenants, 6 La. L. Rev. (1946)Available at: https://digitalcommons.law.lsu.edu/lalrev/vol6/iss4/18NOTESdistrict attorney may be required to furnish a bill of particu-lars setting forth more specifically the nature of the offensecharged. The defendant's constitutional guaranty that heshall be fully apprised of the nature and cause of the accusa-tion is amply protected by this provision.""It might be suggested that Article 235 of the Code ofCriminal Procedure does not make it mandatory upon thecourt to require the State to furnish the particulars. While itis discretionary with the trial judge, yet, he cannot arbitrarilyrefuse to order the State to furnish essential particulars."This Court has upheld the short form of indictment oncharges for murder, State v. Capaci, 179 La. 462, 154 So.419; State v. Matthews, 189 La. 166, 179 So. 69; forgery, Statev. Ducre, 173 La. 438, 137 So. 745; State v. Digilormo, 200 La.895, 9 So. (2d) 221; State v. Pete, 206 La. 1078, 20 So. (2d) 368;perjury, State v. Abeny, 168 La. 1135, 123 So. 807; negligenthomicide, State v. Ward, supra."We see no valid reason why an indictment charging theaccused with the commission of aggravated rape upon a namedperson as provided for in Article 235 is not equally sufficient.Moreover, a defendant is amply protected when the shortform is used by the provision granting him essential particu-lars when requested." 2C. C. C.EQuTY-PERsoNAL SERVICE CONTRACTS-ENFORCEMENT OFNEGATIVE COVENANTs-Defendant was the inventor of an "Atomis-scope" which could be successfully employed in geophysicalwork. In consideration of a monthly salary and as part of a gen-eral plan to develop the device, he contracted with the plaintiff,an experienced oil man, to render exclusive services in the opera-tion of the instrument. He also covenanted not to lend, give, sell,or demonstrate the instrument to any other person. Defendantbreached his contract and rendered services to others. Plaintiffbrought an injunction suit and defendant filed an exception ofno cause of action. The Louisiana Supreme Court held the serv-ices were of a special, unique and extraordinary character, over-ruled the exception of no cause of action, and reinstated the tem-porary restraining order. Pennington v. Drews, 24 So. (2d) 156(La. 1945).2. Id. at 671.1946]LOUISIANA LAW REVIEWCourts have refused to order specific performance of per-sonal service contracts and, until the year 1852, equity grantedno relief in such cases. However, in that year the English courtsof chancery in Lumley v. Wagner1 enforced a negative covenantof an opera star not to render services to another. That decision,subject to the various interpretations placed upon it by the courts,has served as a basis for both granting and denying relief inlater cases.The practice of enforcing the negative covenant, developedas a result of this case, has generally been restricted to serviceswhich were special, unique, and extraordinary; otherwise theremedy at law would be adequate. The uniqueness required bythe courts will vary with the cases and the parties involved. Acomedian who was the principal attraction in a show, 2 an edito-rial writer of exceptional literary style,3 and an actor receiving alarge salary from the plaintiff4 have all been termed unique;while a singer in the chorus5 and an actor for whom a substitutecould be found6 have not had that character. An able first base-man does not have this quality," although a baseball player ofexceptional reputation who would be difficult to replace is con-sidered unique." No definite line can be drawn; but the casesfall in general patterns, depending to a large extent on thedifficulty of substitution. In such cases the damages are unascer-tainable, amounting to an irreparable injury which cannot becompensated at law. Although the personal services of the de-fendant in the present case were ordinary, the court regardedthem as inseparable from the use of the Atomiscope, henceunique. It naturally follows that substitution would be impossibleand any attempt to estimate damages conjectural.In denying specific performance of a personal service con-tract, perhaps the reason most often given is the difficulty ofsupervision. This renders enforcement infeasible for those con-tracts that call for continuous performance.9 This has been1. 1 De G., M. & G. 604, 42 Eng. Rep. 687 (1852).2. Harry Hastings Attractions v. Howard, 119 Misc. 326, 196 N.Y. Supp.228 (S.Ct. 1922).3. Tribune Ass'n v. Simonds, 104 Atl. 386 (N.J. Ch. 1918).4. Harry Rogers Theatrical Enterprises v. Comstock, 225 App. Div. 34,232 N.Y. Supp. 1 (1st Dep't 1928).5. Hammerstein v. Mann, 137 App. Div. 580, 122 N.Y. Supp. 276 (1stDep't 1910).6. Lawrence v. Dixey, 119 App. Div. 295, 104 N.Y. Supp. 516 (1st Dep't1907).7. Spencer v. Milton, 159 Misc. 793, 287 N.Y. Supp. 944 (S.Ct. 1936).8. Philadelphia Ball Club v. Lajole, 202 Pa. 210, 51 Atl. 973 (1902).9. Snyder v. Wilder, 146 La. 811, 84 So. 104 (1919); Daily States Pub. Co.v. Uhalt, 169 La. 893, 126 So. 228 (1930); De Rivaflnoli v. Corsetti, 4 Paige[Vol. VIgiven particular emphasis in construction contracts,0 and theLouisiana courts have often denied relief on that basis." Thisobjection has no place, however, Where an injunction is usedsimply to prevent the breach of the negative covenant and doesnot call for protracted supervision.Another reason for denying relief is that the law does notdeem it advisable to protract under court mandate a personalrelationship which has become intolerable to one of the parties.This factor is the primary consideration where an employee suesto be retained in his employment, 2 but this is not applicablewhere the purpose of the injunction is not to force performance.A fundamental consideration underlying, but not alwaysmentioned in a denial of specific performance of personal servicecontracts, is the idea that such relief would amount to exactinginvoluntary servitude; and it is on this score that the enforce-ment of an incidental negative covenant has been most severelycriticized. 13 The effect of a decree restraining the defendant fromrendering services to another is to force him into the service ofthe plaintiff through economic necessity. For this reason somecourts have made absurd rationalizations in their effort to pointout that they were not compelling the defendant to serve theplaintiff.41 Other courts have openly admitted that the injunctionwas in aid of the contract's performance. 15 Though raised inCaldwell v. Cline,6 the question whether an injunction enforcingthe negative covenant would issue where specific performancecould not be decreed has not been squarely passed upon in Lou-isiana.264, 25 Am. Dec. 532 (N.Y. 1833); Sanquirico v. Benedetti, 1 Barb. 315 (N.Y.1847).10. Beck v. Allison, 56 N.Y. 366, 15 Am. Rep. 430 (1874). But see Jonesv. Parker, 163 Mass. 564, 40 N.E. 1044 (1895).11. See Note (1940) 2 LouISIANA LAW REimW 198.12. Healey v. Allen, 38 La. Ann. 867 (1886); Fitzpatrick v. Michael, 177Md. 248, 9 A. (2d) 639 (1939); Kerr S. S. Co. v. Kerr Nay. Corp., 113 Misc. 56,184 N.Y. Supp. 646 (S.Ct. 1920).13. Stevens, Involuntary Servitude by Injunction: The Doctrine of Lum-ley v. Wagner Considered (1921) 6 Corn. L. Q. 235.14. Butternick Pub., Co. v. Rose, 141 Wis. 533, 540, 124 N.W. 647, 649 (1910),in which the defendant urged that the decree amounted to compelling himIndirectly to perform a contract for personal services. The court said: "Acause of action being stated, we cannot reverse the order because theplaintiff may, by indirection or otherwise seek some relief to which he is notentitled. . . ." In Warner Brothers Pictures v. Nelson [1937] 1 K. B. 209,219, the court said that Bette Davis, film actress, would not be driven to per-form by the negative decree, "and the fact that she may be so tempted isno objection to the grant of an injunction."15. Keith v. Kellermann, 169 Fed. 196 (C.C. N.Y. 1909); Mission Independ-ent School Dist. v. Diserens, 188 S.W. (2d) 568 (Tex. 1945).16. 8 Mart. (N.S.) 684 (La. 1830).19461 NOTESLOUISIANA LAW REVIEWA theory exists, however, which would serve to alleviate thecourt's embarrassment in this regard and avoid the objection thatspecific performance is really being accomplished. The "sepa-rate significance" which has been advocated by Dean Pound, 7is a justification for enforcement of the negative covenant, which*can readily be appreciated. When the breach of the negativecovenant causes injury, additional to that which the plaintiffsustains by breach of the affirmative, the covenant really has"separateness" and the desirability of protecting the plaintifffrom further injury warrants the use of the injunction. Theinjunction in such a case is not being used to accomplish per-formance, but to prevent a separate and additional injury. Al-though seldom adequately treated by the courts,18 possibly be-cause its presence in the majority of cases has passed unnoticed,this concept provides a sound justification of negative enforce-ment. A recent Texas case,'9 in which this feature was conspicu-ously absent, serves to demonstrate the failure of the courtsto give adequate attention to this detail.In the present case the "separateness" is not as readily per-ceived as in the case where an actor or baseball player of peculiarmerit performs for another, thereby drawing patrons from theplaintiff's theater or ball-park. Here the principal injury to theplaintiff would be the loss of profits which he reasonably ex-pected from successful exploration for oil. Any additional injurywhich he would sustain by reason of defendant's employment bya competitor would exist only on the theoretical basis that thebusiness rival would be able to "grab up" lands which the plain-tiff would have discovered by normal geophysical methods. Suchan injury as the basis of an injunction would probably have littleappeal for the court. However, another argument could be madefor separate significance. The plaintiff was also a mineral broker,presumably engaged in buying leases to re-sell to oil companies.17. Pound, The Progress of the Law: Equity (1920) 33 Harv. L. Rev. 420,438.18. But see Fitzpatrick v. Michael, 177 Md. 248, 9 A. (2d) 639 (1939);American League Baseball Club of Chicago v. Chase, 86 Misc. 441, 149 N.Y.Supp. 6 (S.Ct. 1914).19. Mission Independent School Dist. v. Diserens, 186 S.W. (2d) 108 (Tex.Civ. App. 1945), reversed in 188 S.W. (2d) 568 (Tex. 1945). Defendant was apublic school music teacher of exceptional ability. She breached her con-tract with the plaintiff and accepted a position in another school, which wasnot a business rival of plaintiff. The lower court recognized the fact thatPlaintiff would suffer no additional injury by the breach of the negativecovenant and refused the injunction. On appeal the supreme court issuedthe injunction to enforce the affirmative promise, and expressly refused torestrict the doctrine to the case where the parties were competitors and lossof business would result from breach of negative covenant.[Vol. VINOTESA record for productive mineral leases, built up through the useof the Atomiscope, would not only be broken by a subsequentloss of the instrument, but the good will and clientele thus ac-quired might shift to the competitor who had the use of the in-strument. Thus the plaintiff would be left without a market forhis leases. These considerations were not presented in the opin-ion, however, possibly because the arguments were not made bycounsel and because this was not a decision after a final hearingon the merits.Faced with serious objections to the enforcement of negativecovenants incidental to personal service contracts some courtshave arbitrarily limited this type of relief to cases where an ex-press negative covenant was involved. 20  When the phrase "ex-clusive services" is used, it naturally implies that the defendantwill not render services to another; but as one court has ex-pressed it, every contract involves an implication not to do any-thing inconsistent therewith." A few courts,2 12 however, havebeen willing to imply the negative covenant, citing Lumtley v.Wagner23 as an authority, although that case is generally inter-preted as involving an express negative covenant. The LouisianaSupreme Court in an early case2 4 declined to imply the covenant,although it does not appear from that case that the defendant'sservices were unique or that the contract called for exclusiveservices. The present case would probably not run afoul of thiscontroversial issue, since the services were to be exclusive, andeven if the defendant had not expressly contracted to refrainfrom serving another, he at least had agreed not to permit othersto use the instrument with which his services were so intimatelyconnected. In conclusion, it is suggested that the present caseappears to be one appropriate for equitable relief if, after a hear-ing on the merits, it is determined that the negative covenant hasthat separateness so necessary if the court is to avoid the objec-tion that it is only doing indirectly what it could not do directly.JOHN C. MORRIS, JR.20. Carlson v. Koerner, 226 Ill. 15, 80 N.E. 562 (1907); Whitwood Chem.Co. v. Hardman [1891] 2 Ch. 416; Mortimer v. Bickett, 123 L.T.R. (Eng. Ch.D.) 27 (1920).21. Whitwood Chem. Co. v. Hardman [1891] 2 Ch. 416.22. Essex Specialty Co. v. Bueschel, 116 N.J. Eq. 337, 173 Atl. 595 (1934)(though Lumley v. Wagner had an express negative covenant, the decisionwould have probably been the same without it); Harry Rogers TheatricalEnterprises, Inc. v. Comstock, 225 App. Div. 34, 232 N.Y. Supp. 1 (1st Dep't1928).23. 1 De G., M. & G. 604, 42 Eng. Rep. 687 (1852).24. Caldwell v. Cline, 8 Mart. (N.S.) 684 (La. 1830).19461

Equity - Personal Service Contracts - Enforcement of Negative Covenants

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Equity - Personal Service Contracts - Enforcement of Negative Covenants

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