
    Dodge, et al., Receivers, Plaintiffs and Respondents, v. Lambert & Gardner, Defendants and Appellants.
    1. Where a lessee covenants, in the lease executed to him, for a particular use of the demised premises, equity -will restrict him to that use by injunction.
    2. Where the use sought to be enjoined, violates not only the covenant of the lessee, but the sanctity of the Sabbath, the interposition of the Court by injunction is eminently proper.
    3. Where, by the terms, of the lease, it cannot be assigned without the written consent of the lessors, and it is assigned by virtue of the written consent of a person professing to act as their agent; and as a consideration of obtaining such consent, the assignees covenant to make such use of the premises as their assignor had covenanted to make, and they enter upon the premises and occupy them solely by virtue of such consent and assignment; they cannot, in a suit brought by the lessors against them to restrain them from using the premises for purposes other than those specified in their covenant, compel the lessors to prove that their professed agent was, in fact, such agent, having the powers which he assumed to exercise.
    4. A suit by such lessors, to enforce the contract, is, as between them and such assignees, a ratification and adoption of the acts of such agent, and in such a case, sufficient evidence of his authority.
    6. In such an action, the defendants cannot show as against their landlords, that the latter have no beneficial interest or estate in the demised premises.
    6. It is no defence to such an action, that the use covenanted not to be made, and which the defendants are making, in violation of their covenant, is not a public or private nuisance; nor that such prohibited use will not deteriorate the premises in value; nor that the lessees have expended large sums with a view to such prohibited use, which they will lose if not permitted to violate their covenant.
    
      1. A declaration of the agent, that his principals would not enforce such covenant, if no disorderly or improper conduct was permitted on the premises, is no defence to an action to enforce the covenant.
    (Before Boswokth, Woodruff and Pierrepont, J. J.)
    Heard, February 8;
    decided, March 13, 1858.
    This action comes before the Court at' General Term, on an appeal by the defendants, from a judgment granting the relief prayed by the'complaint. The judgment appealed from is, “ that the defendants be, and they hereby are, perpetually enjoined from using the premises mentioned in the complaint, or any part thereof, as a place of public entertainment on Sabbath days or evenings.”
    The complaint alleged, and it was proved on the trial, that the plaintiffs, on the 23d of February, 1855, were duly appointed receivers of the real estate of which Anson G. Phelps, then recently deceased, died seized and possessed, with power to rent or lease, in their names or otherwise, “ the said houses, lands, and premises, any and every part thereof,” from time to time, and for any term not exceeding five years.
    By a lease, dated the 1st of May, 1855, they, as such receivers, leased the premises in question to William Curr, for five years from that date. The lease was signed and sealed, as well by Wm. Curr, as by the said lessors. Such lease contains a covenant by said Curr, “ that he will not use or occupy, or permit the said premises, or any part thereof, to be used or occupied, for any business that may be a nuisance or noxious or dangerous to the neighborhood, and particularly that the same shall not be used or occupied as a grocery, or for selling liquor; and that he will not let or underlet the said premises, or any part thereof, nor assign this lease, or any portion of the term hereby demised, without the written consent of the parties of the first part, their successors or assigns, first obtained.” Said lease also declares, that “ it is expressly agreed, that should any default be made in the punctual payment of the said rent, or should the said party of the second part, (said Curr,) his heirs, executors, or administrators, violate or fail to perform any of the covenants or conditions hereinbefore contained on his part, then the said parties of the first part, their successors and assigns, may forthwith, without notice, and without resorting to any proceedings for recovery of possession, reenter the said premises either by force or otherwise, and remove all persons therefrom, without being liable to any prosecution therefor.”
    It was also proved, that on the 21st of November, 1856, Curr assigned the said lease to the defendants, pursuant to a written consent at the foot thereof, in these words, viz.:—
    
      “ Consent is hereby given to William Curr to assign the foregoing lease to James Lambert and David Gardner.
    By T. Allen, their agent.
    It was also proved, that cotemporaneous with the giving of such consent, and the assigning of said lease, an agreement in writing was executed, signed by Lambert & Gardner severally, and also signed “ Wm. E. Dodge, Anson G. Phelps, by T. Allen, their agent,” and in and by it, the said Lambert & Gardner “ expressly covenant and agree, that the said premises shall not, nor shall any part thereof, be open to the public as a place of entertainment or refreshment on Sabbath days or evenings; nor shall said premises, or any part thereof, be used, at any time, as a drinking saloon or tippling place, so called, under penalty of forfeiture of the lease.” •
    The defendants’ answer admits, that the garden and premises have been opened on the Sabbath, as well as on other days, until the temporary injunction was served in this action, but clenies “ that said premises have been, or are kept or used by them as a drinking saloon or tippling place, either on Sabbath or week days, in any way or manner offensive to public decency or good morals, or so as to have become or to be either a public or private nuisance, or in any way injurious to the plaintiffs, or to the estate of which they claim to be the receivers, or to the good order, peace, or good government of the neighborhood.”
    When the plaintiffs rested, the defendants moved to dismiss the complaint, .on the following grounds:—
    First.—That it did not appear that T. Allen, who executed the said agreement between the plaintiffs and defendants, as the agent of the plaintiffs, was, in fact, such agent, or had been or was authorized as such agent, to enter into or execute said agreement.
    Second.—That it had not been proved, nor did it in any way appear, that the plaintiffs, or the estate of Anson Gr. Phelps, deceased, had suffered, or would suffer any damage or injury whatever, by reason of the premises in question being used as a public place of entertainment or refreshment on Sabbath days, or by reason of the breach of any other covenant, complained of in the complaint, or admitted in the defendants’ answer.
    The Court refused to dismiss the complaint, and the defendants’ counsel excepted.
    The defendants then offered to prove—
    First.—That Mrs. Phelps, the widow of Anson G-. Phelps, deceased, was, and had been, since her husband’s death, the owner in fee of the real estate leased to the said Curr, and described and referred to in the agreement executed by the defendants, and that the plaintiffs have not, and never had any beneficial interest or estate whatever in said real estate and premises.
    The Judge refused to admit the said evidence, and the defendants’ counsel excepted.
    The defendants then offered to prove—
    Second.—That since said premises had been opened and kept by the defendants as a public place of entertainment, or refreshment, good order and decorum had, at all times, as well on the Sabbath as other days, been kept and preserved there; and that no noisy, riotous, or disorderly acts or conduct had occurred, or had been permitted to occur or take place there, either on Sabbath or other days; and that the said premises had never been kept or used by the defendants as a drinking saloon or tippling place, either on Sabbath or other days, in any way or manner offensive to public decency or good morals, or so as to have been, or to be either a public or a private nuisance.
    The Judge refused to admit the said evidence, and the defendants’ counsel excepted.
    The defendants then offered to prove—
    Third.—That neither the plaintiffs, nor the estafe of which they claimed to be the receivers, had been injured or deteriorated in value, by the violation, by the defendants, of any covenant or agreement, alleged in the complaint, or admitted by the answer.
    • The Judge refused to admit the said evidence, and the defendants’ counsel excepted.
    The defendants then offered to prove—
    Fourth.—That the defendants, since their taking possession of the premises under their agreement with plaintiffs, had expended about $5000 in grading, improving, repairing and ornamenting the grounds and buildings thereon, which would be a total loss, should they be "perpetually restrained from keeping the premises open on Sabbath days, as a place of entertainment or refreshment, as the lease would thereby become valueless.
    The Judge refused to admit the said evidence, and the defendants’ counsel excepted.
    The defendants then offered to prove—
    Fifth.—That a short time before the execution of the agreement between the plaintiffs and the defendants, Mr. Allen, who executed the same as agent for the plaintiffs, told the defendants, that it would be necessary to insert a covenant in said agreement, that the premises should not be opened to the public on the Sabbath, as a place of entertainment, to satisfy the plaintiffs’ religious scruples, and to get their consent to such agreement or lease to defendants, but that there should never be any complaint, and there was no intention to take advantage of the covenant, if the place was kept orderly, and no disorderly or improper conduct was permitted there; and that the defendants executed such agreement subsequently, relying on such statement of Allen.
    
      The Judge refused to admit the said evidence, and the defendants’ counsel excepted.
    The defendants then rested.
    Mr. Justice Hoffman, before whom* the action was tried, gave judgment in favor of the plaintiffs, as before stated, and from that judgment, the defendants appealed to the General Term.
    
      A. B. Dyett, for the appellants.
    I. The plaintiffs are receivers of the estate of Anson G. Phelps, and sue as such upon an agreement made 'by them in the same capacity. They ask a perpetual injunction to restrain the violation of a covenant. This is purely an equitable remedy. No damage to the plaintiffs nor to the estate they represent was proved, though it was alleged in the complaint. Nor would a damage to the other estate of A. G. Phelps give any right of action to the plaintiffs. Nor was it proved that there was any such “other estate” in existence. No irreparable damage was alleged or proved. No other damage than that alleged in the complaint can be presumed. The defendants on the trial offered to prove, not only that no damage was sustained, but that an actual benefit to the estate, and a great injury to the defendants were produced. The case then simply presents the question, whether a court of equity will, merely to gratify a whim or caprice of the plaintiffs, restrain by perpetual injunction the breach of a covenant, where it is confessed no damage to the plaintiffs could result from it, but a benefit be received by them, and the defendants be seriously injured. An injunction is a prerogative writ, not a writ of right. There is no such thing as an absolute right to an equitable remedy. Absolute rights may be enforced in courts of law, or by what are known as legal remedies ; but equity will not aid in the enforcement of a right, unless it be attended by an equity; and that equity must be a wrong to the plaintiffs, consisting of the deprivation of a substantial right, which cannot be redressed or compensated by a legal remedy. (Willard’s Equity, 274; Story’s Eq. J. § 928; Id. § 864.) And that wrong must be attended by an injury; otherwise it is injuria absque damno, where damage has been suffered, but is irreparable by a court of law, there equity will lend its aid to complete the remedy. But where a court of law gives nominal damages, because no real damage has been sustained, there the maxim equitas sequitur legem, applies. Strictly, at law, nominal damages might here be recovered, without proof of any. But that remedy would be adequate. Ex nihilo fit nihil. The plaintiffs have no equity, and should be left to their action for damages. (Willard’s Equity, 261; and see Point V. infra.; Story’s Eq. J. § 959, a. b. and notes.)
    II. The covenant in question was made by an agent of the plaintiffs, who were themselves but agents, and could not delegate their authority.’ There was, therefore, no consideration for the covenant on the part of the defendants, because it was void as to, and did not bind plaintiffs; nor had the plaintiffs, as receivers, any authority to make or exact such a covenant.
    IH. The only consideration for the covenant alleged in the complaint, was “ to obtain the plaintiffs’ consent to an assignment of the lease,” by the tenant Curr. It was extorted from the defendants, and will not be favored in equity. (Willard’s Equity, 261.)
    IV. The covenant is unfair and unreasonable. The defendants not only extorted the covenant in question, but as a consideration of simply consenting to assign, they, in addition to this, in the same agreement, extorted a covenant to improve the premises to the extent of $2000, and that those improvements should belong to them. And they were mere officers of the Court to lease the premises. (Willard’s Equity, 262, 267, 268.)
    V. The covenant should not be enforced by injunction, for the following additional reasons: 1. It is not mutually capable of specific performance. (Willard Eq. 267.) 2. It is objectionable in its nature and circumstances. (Id. 262; Story Eq. J. § 959, a. b. and notes.) 3. Although the Court might refuse to annul such a covenant, yet it would not enforce it. (Id. 263, 266.) 4. It is a hard and unconscionable contract, and is not fair and just in all its parts. (Id. 264, 266, 268.)
    VI. The covenant in question provides that the penalty for its violation shall be a forfeiture of the lease. This is the only remedy the plaintiffs have, except their other legal one for damages. At all events, this is sufficient to prevent their having a specific performance and perpetual injunction, (Vincent v. King, 13 Howard, 234,) especially where no damage is pretended.
    VII. The Judge on the trial, for the several reasons above stated, erred in refusing to dismiss the complaint, and in refusing to receive the evidence offered by defendants.
    VII. The judgment should be reversed, and the complaint dismissed, with costs.
    
      A. Wakeman, for the respondents.
    I. The defendants, having taken their title to the premises through Mr. Allen, as agent, are estopped from denying his authority to make the agreement under which they hold.
    II. They are also estopped from denying the title of the plaintiffs, who are their landlords.
    III. Evidence is inadmissible, to avoid a covenant by showing, that at the time of its execution, it was agreed by parol, that it should not be operative.
    IV. It is not an answer to an action for the breach of a contract, that its performance would be a pecuniary disadvantage to the defendants.
    V. The proprietor of premises may stipulate in a lease, that they shall not be occupied by the tenant for a purpose that is unlawful; or that is inconsistent with morality, or public propriety. And such a covenant will be enforced by a court of equity, although no pecuniary loss, and no actionable nuisance, is shown to have arisen from its violation. The' consideration, that the breach of such a contract cannot be the subject of pecuniary estimation, renders the case peculiarly proper for "equitable cognizance. (Story’s Equity, §§ 925, 926, 927, 959; Steward y. Winters, 4 Sand. Ch. R. 587.) Even a covenant in reference to a matter of a mere taste, in the occupation of premises, will be .enforced by injunction. (Squire v. Campbell, 1 Mylne & Craig, 459, 477 to 486 ; Heriot's Hospital v. Gibson, 2 Cow. 301; Howard v. Ellis, et al. 4 Sand. S. C. R. 369.)
   By the Court. Bosworth, J.

Assuming the consent, that Curr might assign the lease to the defendants, to be the same, in effect, as if it had been signed by the plaintiffs personally, and the agreement between them and the defendants to be as valid and effective as if the plaintiffs had executed it in person, instead of executing it by T. Allen, their agent, the only question would be, whether the defendants can be restrained by injunction from violating the covenant in question. Steward v. Winters, (4 Sand. Ch. R. 587;) Howard v. Ellis, (4 Sand. S. C. R. 369,) are authorities in support of the affirmative of that proposition.

The provisions of the statute law, which inhibit the transaction, on the Sabbath, of the business which the defendants covenanted not to prosecute on the premises on that day, and the considerations of public policy, which induced the enactment of such laws, should not disincline the Court to enforce, in behalf of the plaintiffs, such use of the demised premises as they exacted, when consenting to the transfer of the lease, and as the defendants, to obtain such transfer, then covenanted to make of them. (1 R. S. 675 ; Articles 8 and 9 of Part 1, chap, xx.)

The defendants have no right to use the premises at all, except by treating Allen as the actual agent of the plaintiffs, and one whom they were competent to appoint to do the acts, which he performed in their name and on their account. The plaintiffs were competent to do, personally, the acts which Allen performed as their agent, and the evidence of their ratification and adoption of his acts, furnished by their claiming the benefits of the contract, is sufficient to make the consent to the transfer of the lease and the agreement their own contracts, as between themselves and the defendants, who have entered into, and continued in the use and enjoyment of, the premises, by virtue of these transactions. (3 Kern. 593-594.)

The Court, therefore, properly refused to dismiss the complaint, on the grounds on which it was moved.

The first offer of evidence was properly excluded, because the defendants were not at liberty to show, in this action, that their landlord never had any interest in the demised premises. (Jackson v. Davis, 5 Cow. 123.) The fact that Mrs. Dodge may have owned the premises in fee, does not, necessarily, make the appointment of the plaintiffs, as receivers of such premises, void, nor affect the validity of any leases which they make, of any part of the premises to which their receivership extended.

The evidence proposed to be given under the second, third, and fourth offers, present no reasons why the defendants should not perform their contract, as they made it. (Howard v. Ellis, et al., supra)

The fifth offer proposed to vary the effect of a written agreement, by proving less than a cotemporaneous verbal contract, in" conflict with it. It proposed to prove a statement of the agent, that his principals would not avail themselves of the benefit of a covenant which they exacted, provided the violation of it was orderly, and not accompanied by disorderly or improper conduct. This exception, like the others, is untenable, and the judgment must be affirmed.

Judgment affirmed.  