which accrued to Meade, or to Kernochan for Meade; the proceed. ings are in his own name, and he can go forward with such proceedings only on the equity side of this court. His right is a llurely equitable one, and strictly cognizable iu his own name in a cOurt of equity only, or only where equitable remedies are administered; and the remedy is none the less equitable because it might not be so classed in the state court. The demurrers are overruled, with leave to the defendants to answer over within 30 days on payment of costs of demurrer.
DAVIS and others.
(Circuit Court, D. New Hamp8hire. April 20,1882.)
A contract which provides that one party shall use his skill and machinery in the manufacture of a certain article, while the other party agrees to purchase from him such manufactured article, to the extent of the market demand on condition that the manufacturer shall sell exclusively to him, as a general rule will not be ordered to bespeciflcally performed by a court of equity, and espec,ially where a specific performance has been rendered impossible by a sale to a third party of a half interest in the machinery employed. 2.
On execution, when specific performance cannot be decreed, the negative injunction against dealing with other persons, which is in, its nature auxiliary to this relief, be issued; nor, where a contract is unequal, will it be enforced by injunction.
for complainant. . LOWELL, C. J. The plaintiff in his bill repreeents that the defendant Benjamin Davis was a skilful manufacturer of peg-wood, and owned the special machinery for that manufacture, which only one other person had the skill and machinery to make; and the plaintiff, being desirous to go into this business, bought one-half of certain machinery, tools, and stock of said Benjamin, and entered into partnership with him, but soon dissolved that connection, and made a contract with said Benjamin, March 25, 1881, for a term of three. years, by which the said Benjamin agreed to make peg-wood exclusively for the plaintiff, in such quantities as he should order, delivered on board the cars at or near his factory at Rumney, at four cents a roll, and not to manufacture for anyone else. The
Heyde, Dickema.n x Howe and Burrows Wadleigh x Fish, for defendants.
plaintiff, on his pa.rt, agreed to pay said price for all peg-wood which should be delivered in pursuance of his orders, to the extent of the demand for the same, a:p.d to settle monthly. The bill alleges that Benjamin Davis has contracted with bis son, the defendant Charles F. Davis, to injure and defraud the plaintiff, by putting the business into the bands of Charles, w:ho agrees to sell the peg-wood made at the factory to the plaintiff, and is about to sell to other persons. It prays that the defendants may be restrained from semng to any other person tban the plaintiff, and may be required to carry out the contract. The defendants allege that Benjamin Davis is old and feeble, and that the contract was obtained from him hastily, and under a promise to modify it if not satisfactory; that it has not been carried out in good faith by the plaintiff, and has so continued his orders for peg-wood as to give the defendant Benjamin unnecessary trouble and expense, and that, in fact, he has made nothing by five months' work under the contract. The plaintiff denies all this, and says he has done his best to make the business successful. Each party seems to think that the other is playing into the hands of one Sturtevant, who was the owner of a patent for making peg-wood, which gave him a monopoly of the business, until lately, when his patent expired. Since the bill was filed the interest of the defendant Benjamin in the machinery has been sold on execution at the suit of said Sturtevant, who had recovered a judgment in decree against him, for infringement of the patent, I suppose. Upon examination of the affidavits and consideration of the circumstances of the case, it seems to me proper that the plaintiff should seek his damage at law. As a general rule, a court of equity will not order such a contract to be specifically performed, and in this case such an order has become impossible by the sale of the defendants' one-half of the machinery. On execution, when specific performance cannot be decreed, the negative injunction against dealing with other persons, which is in its nature auxiliary to this relief, will not be issued. There are a few exceptions to this rule, as I said in Singer Sewing Machine Co. v. Union Button-hole Co. 1 Holmes, 253; still it is the general rule. Fothergill v. Rowland, L. R. 17 Eq. 132. Another reason for not enjoining the defendants is, that the contract is one-sided. The plaintiff may order as much or as little pegwood as he pleases, and is only bound to account for what he actually orders and sells; his stipulation to pay. according to the demand
MARTINDALE V. WAAB.
refers only to such goods as he has ordered. He is under no obligation to devote his time or energies in developing the market. He may have done so, as he avers, but the other party has no power to compel him. '' A contract thus unequal is not enforced by injunction. The reason is obvious. If I were to enjoin the defendant from selling to anyone but the plaintiff, I could not require the latter, on his part, to buy a single roll of peg wood of the defendant. See Marble Co. v. Ripley, 10 Wall. 339; Shrewsbury, etc., Ry. Go. v. 'Northlcestern By. Go. 6 H. L. 118. ' Motion for injunction denied. Restraining order dissolved..
W us and others;
(Circuit Court, D. Minne8ota.
Where the court has passed upon all the issues necessary to determine the rights of the parties a motion for rehearing will be denied.
2. SAllE-'RULES OF PRACTICE.
A state law requiring a judge to give his in writing upon every iesue made by the pleadings is not binding on the federal courts.
3. B.um-RULES OF PRACTICE IN FEDERAL COURTS.
The equity practice and procedure of the federal courts is regulated by the rules promulgated by the supreme court of the United States.
Motion for Rehearing. A. F. Foster, for motion. A. F. Scott, against. NELSON, D. J. The motion is denied. The court passed upon all the issues necessary to determine the rights of the parties, and gave a decree in favor of the plaintiff. The law of the state of Minnesota requiring a judge to give his decision in writing upon every issue made by the pleadings is not binding upon the federal courts. The equity practice, as restricted by the rules promulgated by the supreme court of the United States, regulates the mods of proceedings, and no law of congress imposes upon the judge any Buch duty as indicated. When the main issue which controls the result is determined, all others presented by the pleadings are, by implication, decided in harmony therewith. See note on page 580.