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other parts of the agreement which the Court could not enter into (). So also where on the sale and purchase of land the purchaser covenanted with the vendor, a brewer, that he should have the exclusive right of supplying all ale, beer and porter which should be consumed in any building which should be erected on this particular piece of land, the Court restrained the defendant who took under the purchaser from acting in contravention of the covenant, in spite of the fact that in the conveyance to the original purchaser the vendor did not covenant to supply any ale, beer or porter (s).

Chap. X.

Sect. 1.

The contract of charter-party is, from the peculiar nature of Negative quality the subject of the contract, an exception to the rule that a charter-party. imported into a negative quality will not be imported into an affirmative agreement, unless the agreement is of such a nature that a decree for specific performance can be made (t). "I think," said Lord Chelmsford, in De Mattos v. Gibson (u), "that a vessel under a charter-party ought to be regarded as a chattel of peculiar value to the charterer, and that although a Court of equity cannot compel a specific performance of the contract which it contains, yet that it will restrain the employment of the vessel in a different manner, whether such employment is expressly or impliedly forbidden according to the principle expressed in Lumley v. Wagner." If a charter-party is bonâ fide entered into between the owner of a vessel and the charterer, either party is entitled to an injunction to restrain the other from doing anything inconsistent with the agreement (x).

not imported

ment, unless

If the agreement consists of two or more stipulations, and Negative quality is one which cannot from its very nature be specifically en- into an agree forced as a whole, the Court will not import a negative quality the party who into the agreement so as to be a foundation for an injunction, seeks the aid of unless the person who makes the application has actually performed his (r) Ib.

(8) Catt v. Tourle, 4 Ch. 654; and see Metropolitan Electric Supply Co. v. Ginder, (1901) 2 Ch. 799, 807.

(t) De Mattos v. Gibson, 4 D. & J. 276. See this case discussed in Whitwood Chemical Co. v. Hardman, (1891) 2 Ch. 416, 431 (C. A.). K.I.

(u) 4 D. & J. 276, 298.

(x) Sevin v. Deslandes, 30 1. J.
Ch. 457; Messageries Impériales v.
Baines, 11 W. R. 322; Heriot v.
Nicholas, 12 W. R. 844. See, as
to the measure of damages in such
a case, De Mattos v. Gibson, 1 J. &
H. 79, s. c., 7 Jur. N. S. 282.
26

the Court has

own part of it.

Chap. X.
Sect. 1.

Agreement

containing both
affirmative
and negative
stipulations.

performed his own part of the agreement (y).
The mere
assertion on his part that it is his intention to perform his
part of the agreement is not sufficient, unless the Court can
decree specific performance against him (2). Thus where an
agreement had been entered into between a railway company
and a contractor, whereby the contractor agreed to complete
the line of railway, and the company agreed to pay him in
shares and debentures as the works progressed, but the com-
pany repudiated the contract, the Court refused to restrain the
company from dealing with the debentures and shares in a
manner inconsistent with the agreement, on the ground that
it was beyond the power of the Court to make him perform
his part of the contract (a). So, also, in Fechter v. Mont-
gomery (b), the manager of a London theatre engaged for a
period of two years a provincial actor, who was desirous of
appearing on a London stage. Though there was nothing
express on the subject, the Court implied an engagement on
the part of the manager not merely to pay the agreed salary
but to give the actor the opportunity of appearing on the stage,
and an engagement on the part of the actor not to perform else-
where. The manager having delayed the appearance of the
actor for five months, the Court considered that his conduct was
in spirit a breach of the engagement, and would not restrain the
actor from acting elsewhere. In Holmes v. Eastern Counties
Railway (c), the conduct of the plaintiff in respect of his part of
the agreement had not been strictly honourable, but the damage
to which he would have been exposed, had the injunction been
refused, was so serious, that the Court imported a negative
quality into the agreement and granted an injunction (d).

Where an affirmative covenant has a negative element in it, or where a covenant is partly affirmative and partly negative,

(y) Fechter v. Montgomery, 33 B.
22; Grimston v. Cuningham, (1894)
1 Q. B. 130.
p.

(z) Peto v. Brighton, Uckfield, and
Tunbridge Wells Railway Co., 1 H.
& M. 468.

(a) Peto v. Brighton Railway Co., 1 H. & M. 468. See Ogden v.

Fossick, 4 D. F. & J. 426.

(b) 33 Beav. 22; but see Whitwood Chemical Co. v. Hardman, (1891) 2 Ch. 416 (C. A.). (c) 3 K. & J. 675.

(d) See Hamilton v. Dunsford, 6 Ir. Ch. 412.

Chap. X.
Sect. 1.

the Court will in a proper case enforce the negative portion of the covenant (e); and the Court may also enforce by injunction the negative part of an agreement containing both affirmative and negative stipulations, although the affirmative part of the agreement is of such a nature that it could not be specifically enforced (f). In Lumley v. Wagner (g) the defendant had Lumley v. Wagner. entered into an engagement with the plaintiff to sing at his theatre and not to sing at any other theatre. Lord St. Leonards restrained her from singing at any other theatre than the plaintiff's, though it was beyond all doubt that he had not the power to decree specific performance of the affirmative part of the agreement. "The case," he said (h), "is a mixed one, consisting not of two correlatives to be done, one by the plaintiff and the other by the defendant, but of an act to be done by the defendant alone, to which is superadded a negative stipulation on her part to abstain from the commission of any act which will break in upon her affirmative covenant, the one being auxiliary to, concurrent and operating with the other. The agreement to sing for the plaintiff during three months at his theatre, and during that term not to sing for anybody else, is not a correlative contract; it is in fact one contract. The engagement to perform at one theatre must necessarily exclude the right to perform at the same time at another theatre" (i). So also where a contract for the sale of chattels contained an express negative stipulation not to sell to any other person, an injunction was granted to restrain the doing of the act stipulated not to be done, although the contract was one of which specific performance would not have been granted (k).

"With regard to the case of Lumley v. Wagner," said Lord Lumley v. Wagner.

(e) Clegg v. Hands, 44 C. D. 503 (C. A.).

(f) Lumley v. Wagner, 1 D. M. & G. 604. Cases of this kind, however, are not to be extended, post, P. 404.

(g) 1 D. M. & G. 604.

(4) Ib. 618.

(i) Webster v. Dillon, 3 Jur. N. S.

433; Daggett v. Ryman, 16 W. R.
302, W. N. (1868) 3; Grimston v.
Cuningham, (1894) 1 Q. B. 125.

(k) Donnell v. Bennett, 22 C. D.
837. See also Metropolitan Electric
Supply Co. v. Ginder, (1901) 2 Ch.
799; and see the Sale of Goods Act,
1893, s. 52.

Chap. X.
Sect. 1.

Selborne (1), "it is not a case which tends in any way to limit
the ordinary jurisdiction of this Court, to do justice between
parties by way of injunction. It was sought in that case to
enlarge the jurisdiction on a highly artificial and technical
ground, and to extend it to an ordinary case of hiring and
service, which is not properly a case of specific performance,
the technical distinction being made, that if you find the word
'not' in an agreement-'I will not do a thing—as well as
the words I will,' even although the negative term might
have been implied from the positive, yet the Court, refusing to
act on an implication of the negative, will act on the expres-
sion of it. I can only say that I should think it was the safer
and the better rule, if it should be eventually adopted by this
Court, to look in all such cases to the substance, and not to the
form. If the substance of the agreement is such that it would
be violated by doing the thing sought to be prevented, then
the question will arise, whether this is the Court to come to
for a remedy. If it is, I cannot think that ought to depend on
the use of a negative rather than an affirmative form of
expression. If, on the other hand, the substance of the thing
is such that the remedy ought to be sought elsewhere, then I
do not think that the form ought to be changed by the use of
a negative rather than an affirmative" (m).

In Whitwood Chemical Company v. Hardman (n) Lindley, L. J., said: "I agree with what Fry, L. J., has said more than once, that cases of this kind are not to be extended. I confess I look upon Lumley v. Wagner rather as an anomaly to be followed in cases like it, but an anomaly which it would be very dangerous to extend." The true principle seems to be this that the Court will consider whether the contract or covenant is or is not of a kind fit for being specifically enforced. If it is, the Court will restrain acts inconsistent with it, whether there are negative words or not; if it is not, no injunction will be granted even though negative words be present (o).

() 16 Eq. 440.

(m) See Donnell v. Bennett, 22 C. D. 839, per Fry, L. J.; Davis v.

Forman, (1894) 3 Ch. 654.

(n) (1891) 2 Ch. 428.

(0) See Donnell v. Bennett, 22 C.

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Chap. X.
Sect. 1.

Enforcement

notice.

The principle of the Court with respect to notice in its application to the case of persons taking property with notice of a previous contract affecting the same, has been thus of covenants generalised by Knight Bruce, L. J., in De Mattos v. Gibson (p) against persons by injunction "It may be stated at least as a general rule that where a man taking with by gift or purchase acquires property from another, with knowledge of a previous contract lawfully, and for valuable consideration, made by him, with a third person to use and employ the property for a particular purpose in a specified manner, the acquirer shall not, to the material damage of the third person in opposition to the contract, and inconsistently with it, use and employ the property in a manner not allowable to the giver or seller" (q). Accordingly, the mortgagee of a charter-party, or the purchaser of a ship, with notice of a charter-party previously entered into was restrained from doing any act which would have the effect of interfering with the due performance of the charter-party (').

The jurisdiction of the Court over contracts and covenants is Enforcement by not confined to cases where an action at law can be maintained, covenant relating injunction of but extends to cases where an action at law is not maintainable. to the use and occupation of Except in cases between landlord and tenant, the obligation of land against persons taking a covenant restricting the enjoyment of land (and not amount- with notice. ing to an easement, or to the grant of a rent-charge) does not run with the land at law so as to bind an assignee, although assigns be expressly named in the covenant (s). But such covenants, though not running with the land at law so as to give a legal remedy, and though not even purporting to bind assigns, will be enforced in equity, provided the person into whose hands the land passes has taken it with notice of the covenants (t). "The question," said Lord Cottenham, in Tulk

D. 835, and cf. Davis v. Forman,
(1894) 3 Ch. 654; Ehrman v.
Bartholomew, (1898) 1 Ch. 671.
(p) 4 D. & J. 282.

(9) See Barfield v. Nicholson, 2
L. J. Ch. 90; Hoare v. Dresser, 7
H. L. C. 317; Catt v. Tourle, 4
Ch. 557.

(r) De Mattos v. Gibson, 4 D. &
J. 276; Messageries Impériales v.
Baines, 11 W. R. 322.

(8) Austerberry v. Corporation of
Oldham, 29 C. D. 750 (C. A.).
(t) Tulk v. Moxhay, 2 Ph. 774;
Wilson v. Hart, 1 Ch. 463; Richards
v. Revett, 7 C. D. 224.

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