
    Walter N. Lawrence, Respondent, v. Henry E. Dixey, Appellant.
    First Department,
    May 24, 1907.
    Contract employing actor —lack of mutuality—when court of equity will not restrain actor from seeking other employment.
    Although the affirmative provisions of a contract employing an actor or singer cannot be specifically enforced in equity, yet negative covenants, express or implied, will be enforced where there is no adequate legal remedy for a breach of the contract by the actor, and where the employer, ready and willing to perform, has no remedy except to prevent the breach of the negative covenants. Even in such cases the equitable relief is wholly within the sound discretion of the court, and will never be granted unless the parties are specifically bound by contract so that there are enforcible, reciprocal obligations. A court of equity will never by injunction, imply obligations on.one party to a contract where there are no clear and definite obligations ¡imposed on the other party.
    Thus, where a contract employing an actor, while definite for a particular season, ■ is indefinite as to the'two remaining seasons of employment, in that there is ' nothing from which,the périod of employment can be ascertained, and in that ■ the employer is not absolutely required to furnish employment to the actor longer than he considers it to be to his advantage, there is á lack of mutuality, ■ and a court of equity will’ not grant a temporary injunction to restrain the actor, who repudiates the contract, from entering other employment.
    When a contract employing an actor does hot purport to secure his services for ■ the entire year, but only for thé theátrical “ season,” the actor may serve Others . during the period of the year not covered by the, contract.
    Clarke, J., dissented, with opinion.
    Appeal by the defendant, Henry E. Dixey, from an order of the Supreihe Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of April, 1907, continuing a temporary in junction pendente life. ;
    
      Henry Woll/man, for the appellant.
    • Sampson H. Weinhaiidler, for the respondent.
   Ingraham, J.:

; On September 12, 1905, the parties to this action entered into a ' contract evidenced by a letter written by the plaintiff to the ■ ¿defendant, accepted by the defendant and which is as follows:

“Sept. 12/05.
“ Hr. Henry E. Dixey :
“ Dear Sir.;—I hereby engage you as a star for a period of three ■years, you to receive the first year in lieu of salary, eight (8) per cent of the gross receipts and I agree that your share shall not be less, than three hundred dollars per week, I to pay one-half of all except modern costumes required in each play. Your first season will' open not later than Oct. 9, 1905, and shall continue so long as the gross receipts do not fall below $4,000 weekly, in which event we shall mutually consult as to the advisability of closing or continuing-each season. After the first season your percentage of the' gross receipts shall be ten (10) per cent (10%).
“W. H. LAWÉEHCE.
“ I accept the offer.
“ Henry E. Dixey.”

The parties acted under this contract until about the. 9th of March, 1907, when the defendant refused to further perform the contract, whereupon this action was brought.

• There is no claim to recover any damages, but the relief demanded is an injunction restraining the defendant from performing for any person other than the plaintiff during the. time mentioned. in the contract annexed to the complaint, and that pending the. action a temporary injunction issue. Upon the complaint and an affidavit.a temporary injunction was granted restraining the defendant “ from rendering,services as an actor to any person other than the plaintiff in this action until the further order of this court,” with an order to show cause why this injunction should not be continued until final judgment. Upon the hearing of this motion this injunction was - continued, and it was further ordered that the defendant Henry E. Dixey “is hereby enjoined and restrained during the pendency of this action from rendering services as an actor to or appearing as an actor for any- person other than • the plaintiff, but not longer in any event than until the end of the theatrical season during the year 1907-1908,” upon the plaintiff giving a bond in the sum of $5,000 ; ■ and from this order the defendant appeals.

The contract, as will be noticed’, consisted solely of an engagement of the defendant “ as a star for a period of three years,” the . defendant to receive in lieu of salary ■ eight per cent of the gross receipts, which should not be less than $800 per week for the first season and ten per cent of the gross receipts for the subsequent two • seasons. The first season was to open not later than October 9, 1905, and was.to continue as long as the gross receipts did not fall below $4,000 weekly. There was no provision as to when the. subsequent seasons were, to commence or end. There was no express obligation of the plaintiff to organize any company, provide any theatre or produce any play ; no positive engagement to pay to the defendant any salary or compensation. There was no agreement by the defendant that he would not play for any one else, or on liis own account. No negative covenants are. contained in • the contract, and the plaintiff justified an appeal to a court of equity upon the allegations in the complaint that the defendant • is. hopelessly • insolvent, and that any judgment which might be -rendered against him in an action at law" would be “ uncollectible,” and that;.the .plaintiff lias no.adequate remedy at law, for the reason that the dam, ■ ages lie has sustained, are uncertain and impossible of ascertainment.

■ It is eleme'ntary that contracts for personal service cannot be ,■ specifically enforced by a court of equity (Standard Fashion Co. v. Siegel-Cooper Co., 157 N. Y. 60); but because of the special nature of contracts for the employ of actors or singers, although the affirmative contract cannot, be enforced,;.courts of equity have enforced negative covenants, either express Or implied, where there was no legal remedy, for a breach of-a contract, and where,, upon the nature of'the case, the parties to the contract, ready and willing to perform, have no remedy except to prevent. the breach of the negative covenants ;■ but whether or not a court of equity will grant - equitable relief , in an action of this character is always addressed to the sound discretion of the court, .and could never lie- enforced ■ unless the parties seeking to enforce it are specifically bound by.the contract, so that there are^enforcible reciprocal obligations which are definite and enforciííe. A- court of equity should nev.er.by injunction imply obligations:on-one party when there'are no clear and definite obligations imposed upon the other party to the contract. . It may be that for the first-season there was. a definite arrangement for a particular period- which could be ascertained, but for the remaining two years there is-'nothing in the contract from Which the period of employment could be. ascertained. It is not claimed — and the plaintiff certainly- would ;repudiate such claims-that ■ the defendant, would be entitled to. $300 for every week of- the -. year. That certainly was not .within the. -contemplation of the parties; but it-is difficult .to see upon what basis any other obligation was assumed by the .plaintiff under this contract. He was not bound ’to commence, the- season at any time; was not bound to . -continue the season for any tiine, and there is no satisfactory evidence ■ in this case that there was.any usage in the theatrical profession as - to when a season should commence, or when it.should end. H the .-plaintiff had closed his-theatrical season'of the second year at the end-of the twenty-eighth week, at the time the defendant refused longer to act, upon, the facts. as they appear, I do not see that the plaintiff Would not have beeri liable to continue to pay the minimum amount that-defendant was-tp receive for any particular period. There is no. statement that'this defendant intended to continue this theatrical venture during the summer, or any longer than he considered it- would be to his advantage to so continue it. Certainly, as I view it, this contract in relation to the second and third year is indefinite as to the obligation upon- the plaintiff, and there is, therefore, the lack of mutuality, which is always essential to the enforcement of any contract by a court of equity. Whether.or not .-this'defendant will be bound to act for the plaintiff- under this contract for the season commencing in the fall of 1907, it is not neces- ■ sary now to determine. That question can'be settled upon the .trial of the action which can-be had before the season of 1907 commences. and no temporary injunction is necessary at - this time, to ■ prevent a breach by the defendant of his contract for that season if there is a contract which can be enforced in this action. ■ It seems to me, therefore, that a temporary in junction is now quite unnecessary for. the protection of the plaintiff’s rights and should not have been granted. As to the right of the plaintiff to' enjoin the defendant from acting between the seasons during the period for which the plaintiff insists he is not bound to pay, seems to me to be entirely without justification. There can be no implied covenant that during the period of the year that is not covered by this contract the ■defendant should not do'what lie liked and play for others if he pleased. If the plaintiff had desired to restrain the defendant from performing for others when he was not to perform for the plaintiff and when the plaintiff was. not to pay him for performing,' he. , should have inserted such a clause in his contract.

I think, therefore, that we should reverse this order granting the injunction without definitely determining whether or not the defendant is bound for the season commencing in the.fall of 1907, leaving • that question to be determined upon the trial of the action. .

The order appealed from should, therefore, be reversed, with ten ' dollars costs and disbursements, and the motion for a temporary injunction denied, with ten dollars costs; and without expressing any opinion that could influence the trial court as to the obligation of the defendant to perform the contract for the-period for the seasons of 1907 and 1908. '

Patterson, P. J., McLaughlin and Lambert, JJ., concurred; Olarke, J., dissented.

Clarke, J.

(dissenting):

I think the written contract sufficiently definite for enforcement and the character of the services to be rendered by the defendant is such as to bring the case within equitable cognizance for the ; protection of the plaintiff by injunction.

■I think, however, that the injunction is too broad and should be limited to the theatrical season. The order appealed from should, therefore, be modified so as to provide that the defendant be enjoined and restrained during the regular theatrical season during the pendency of this action from rendering services as an actor to or appearing as an actor for any person other than the plaintiff, but no longer in any event than until the end of the theatrical season during the year 1907-1908, and as so modified,' affirmed.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars'costs.  