14 F. 257 -

ALLEGHENY BASE-BALL CLUB V. BENNETT.

257

ALLEGHENY BASE-BALL CLUB V. BENNETT.-

(Oircuit Court, W. D. Pennsylvania. November 18,1882.)
EQPITY-SPECIFIC PERFORMANCE-PERSONAL SERVICES.

Respondent, on the third of August, 1882, signed an agreement. in consider. ation of $100, by which he bound himself' to execute a formal contract to give hiEl personal services as a base.ball player to complainant during the season. SUbsequently, respondent refused to sign the formal contract, and was about to sign a contract obligating himself to give his services to a rival base-ball club. Complainaut tiled a bill to compel respondent to execute the formal contract with him as agreed, aud to restrain him from executing the agreement With, and giving his services to, the other club. Jield, on demurrer,that the bill must be dismissed.

In Equity. Bill to enforce compliance with agreement to .enter into contract to give personal services. Bill in equity by the Allegheny Base-ball Club, a. corporation of Pennsylvania, against Charles W. Bennett, a citizen of Michigan, to compel the respondent to execute a formal contract to give his exclusive services as a base-ball player to the complainant during the base-ball season of 1883, and also for an injunction to restrain him from executing a like agreement with the Detroit Base-ball Club, and from performing such services for any other person or corporation than the complainant during the season named. The bill was filed on the fifth day of October, 1882, and was based upon the following written instrument, to-wit:
It is hereby agreed, this third day of August, 1882. between the Allegheny Base-ball Club and Charles W. Bennett. that said Charles W. Bennett hereby promises and binds himself that between the fifteenth and thirty-first days of October, 1882. he will sign a regular contract of the Allegheny Base-ball Club, a chartered company belonging to the American Association of Baseball Clubs. which contract shall bind him to give his services as a base-ball player to said club for the season of 1883, and shall bind said Allegheny Club to pay him the sum of $1,700 for and during such season of 18H3; and in consideration of his agreement to sign such a contract in October, the sum of $100 is now paid to said C. W. Bennett, the receipt of which is hereby acknowledged. Witness our hands and seals this third day of August, 1882 THE ALLEGHENY BASE-BALL CLUB, by A. G. PRATT. H. D. MoKNIGHT, President. [Seat] Witness. C. W. BENNETT. [Seat]

The bill averred substantially that the complainant was engaged in the business of playing base-ball for profit, and that by the expeJld.
""From the Pittsburgh Legal Journal.

v.14,no.5-17

FEDERAL REPORTER.

iture of much time and large sums of money it made preparations for the exhibition olstlch games, and expected to receive large returns from the same; that the respondent was a skillful player of baseball, and, in consequence of his agreement with' complainant, E. N. Williamson and James F. Galvin, two other skillful players, had entered into a similar agreement with complainant; that respondent had refused to sign the "regular contract" referred to, and had entered into a like contract with the Detroit Base-ball Club; that, accordingly, Williamson and Galvin refused to keep their said engagement with complainant, and that the base-ball season had now soJar advanced that complainant could not secure other players of equal skill with said Bennett, Williamson, and Galvin, whereby complainant "would be seriously damaged. to an amount of not less than $1,000." The bill prayed that Bennett be required to sign the "regular contract," and perform his, covenants, and also that he be restrained from entering into a SImilar contrapt with the D,etroit Base-ball Club, or any other association or person, and from playing base ball "for hire," during the base-ball season of 1883, for any other than complainant. The complainant moved fora preliminary injunction. The motion was argued by James Bakewell, and was opposed by A. Tausig, and was denied. The respondent then filed flo general demurrer, on the grounds(1) That the bill was prematurely brought; (2) that the agreement was a mere preliminary arrangement, anticipating the making of a final contract, and that, therefore, there was no contract before the court capable of specific enforcement; (3) that the agreement was unlimited as to place, and was, therefore, unreasonable and void as against pUblic policy, as covenants in restraint of trade; (4) that the complainant had an adequate remedy at law.

1. Tausig, A. W. Duff, and Marshall Brown, for the demurrer. To maintain a suit there must be a cause of action when such suit is commenced. 55 Ga. 329; 29 Ill. 497; 4 Sneed, (Tenn.) 583. One who has anything to do on a particular day has the whole of that day to perform such act, so that suit for a breach of performance cannot be instituted until the next day. 102 Mass. 65; 6 Watts & S. 179; 18 Cal. 378. And, in general, the time within which a contract is to be executed is as much the essence of it as any' other part. 6 Wis. 120; 43 Me. 158 j 18 Ind. 365; 17 Me. 316 j 22 Me. 133.
   

ALLEGHENY BASE-BALL OLUB :V. BENNETT.

259

1. The present bill for an injunction to restrain the defendant from playing with the Detroit Club, as in violation of the alleged agreement, will not lie for the reason the contract is a mere preliminary arrangement, and not a final agreement. What are the terms of the alleged contract? They provide a:Q.d oontemplate the execution; of a regular agreement, in order to bind the parties and render the oontraot mutual, final, and conclusive. The preliminary oontract shows that it was executed with referenoe to a future and final agreement between the parties. A oontract requires mutuality as to all its essential terms, stipulations, and oonditions. Is there any allegation npon the face of the bill that a final, regular contract was ever agreed upon between the parties? There is no oontraot, therefore, capable of being enforced in a oourt of equity, and the present bill must be dismissed. South Wales Ry. Co. v. Wythes, 5 De Gex, M. & G. 888. Specifio performanoe will not be decreed if it is not clear that the minds of the parties have oome together. Wistar's Appeal, 80Pa. St. 484. 2. Speoifio performance will not be enforoed, direotly or indirectly, unless the agreement is mutual, its terms ce1'tain, its enforoement practioable, and the complainant is without adequate redress in an aotion at law, (Bispham, Eq. § 377, and oases oited; 10 Wall. 339; 5 De Gex, M. & G. 888;) and it will not be enforced when it is doubtfnl whether an agreement has been concluded, (14 Pet. 77; 81 Pa. St. 484;) nor where the duties are continuous and require skill and judgment, (10 Wall. 339.) A oourt of ohancery will not decree the specifio performance of a oontraot, where it would be impossible for the oourt to enforoe the exeoution of its deoree, or where the literal performance, if enforced, would be a vain and idle act. Bispham, Eq. 436. 3. Even if the alleged contraot is legal and binding on the defendant, the demurrer should be sustained, because the plaintiff has an adequate remedy at law. It may have to pay a higher salary' to secure a player of Bennett's skill, and the differenoe would be the measure of damages for breaoh of contract. 4. Even if the oourt should be of the opinion that a oontraot was executed, .full', final, and mutual as to all its terms, oonditions, and stipulations, and also of opinion that negative oovenants not to exercise a trade, profession, or oalling within reasonable limits ma)' be enforced by injunction, such conolusion would have no applioation to enjoin and restrain the defendant. The oontract is unreasonable and void on grounds of publiopolicy, as in oases of covenants ill
   

260

FEDERAL REPORTER.

restraint of trade, because it is unlimited. McClurg's Appeal, 58 Pa. St. 51; Gillis v. Hall, 2 Brewster, 342; Catt v. Tourle, Law R. 4 Ch. App.654. 5. The demurrer should be sustained because equity will not indirectly enforce specific performance of a contract for personal services 7.'here the services require a succession of acts whose performance cannot be accumulated by one transaction, but will be continuous and require the exercise of special knowledge, skill or judgment. Pom. Spec. Per. § 312; Fordv. Jermon, 6 Phila. 6; De PolY. Sohlke, 7 Rob. (N. Y.) 280; Sanqltiricio v. Benedetti, 1 Barb. 315; Kemble v. Kean, 6 Sim. 333; Hills v. Croll, 2 Phil. 60; Rolfe v. Rolfe, 15 Sim. 88; Fothergill v. Rowland, Law R. 17 Eq. 132; Kimberley v. Jennings, 6 Sim. 340. The personal acts with respect to which courts of equity entertain jurisdiction to decree specific performance have reference to property of some kir..d. There is none where a contract for personal services alone has been actively enforced. There are several, liowever, in which the court has interfered negatively. Thus, in the case of a theater, considered as a partnership, a contract with the proprietors not to write dramatic pieces for any other theater is valid, and a violation of it will be restrained by injunction. Clark v. Price, 2 Wilson, 157; Willard, Eq. 278. But where there is no partnership between the parties, and the defendant has violated his engagement to one theater and formed a conflicting engagl;lment with another, a court of equity will not interfere either actively to compel performance of one contract, or negativE:>ly to prevent the performance of the other. Willard, Eq. 278; Kemble v. Kean, 6 Sim. 333. The cases where injunctions have issued relate (1) to partnership agreements; (2) to property of some kind; (3) to express negative covenants. Willard, Eq. 277,278. 6. If the court should be of opinion that the alleged contract is complete, mutual, certain, and final, and that under it the plaintiff has no full, complete, and adequate remedy at law, the present bill will not lie for the following reasons: (1) It is prematurely brought. No injury to plaintiff (if any) can arise until the ball season of 1883 commences. As the plaintiff will not be actively engaged under the alleged contract until the regular season of 1883 opens, no damage can result until that time from the act which it is sought to enjoin. (2) There is no right to, or necessity for, an injunction, for it cannot appear, at the present time, that defendant will play ball during the season of 1883, in violation of said alleged contract. De Rivafinoli v. Corsetti, 4 Paige, 264; De Pol v. Sohlke, 7 Rob. (N. Y.) 283. If

KIRBY V. LAKE SHORE .. If. S. B. 00.

261

the injury be doubtful, eventual, or contingent, equity will not enjoin. Rhodes v. Dunbar, 57 Pa. St. 274; Huckenstein's Appeal, 70 Pat St. 108. If the alleged injury is only problematical, according as other circumstances mayor may not arise, or if there is no pressing need for an injunction, the court will not grant it until a tort has actually been committed. Kerr, Injunc. 339. James Bakewell and ,J. S. Ferguson, contra. ACHEl:iON, D. J., (orally.) Demurrer sustained and bill dismissed.

KIRBY,

Ex'r, etc., v.

LAKE SHORE

& M.

S.

R. Co. and others.· .

(Oircuit Oourt, S. D. NetD York.

1.

November 17,1882.)

PARTNERSrnP-ExECUTOR OF DECEASED PARTNER SUING IN EQUITY.

An executor of a deceased member of a partnership may maintain a suit in equity to discover the amount due from defendant to such partnership, and to recover such amount when it appears that the surviving partner has refused to join in the suit. 2.
STATUTE OF LBHTATIONs-DrscOVERY OF FRAUD.

Under section 382 of the Oode of Civil Procedure af New York, as construed
by the highest court of the state, the statute of limitations hegins to run from

the time an account is settled, and not from the time of the discovery of facts showing that such settlement was fraudulently made.
8.

SAME-)<'OREIGN OORPORATION.

A foreign corporation cannot avail itself of the stattIte of limitations of this state.
4.

CORPORATION.

Where the officers of a foreign corporation are not made parties in tln actioD against such corporation, there can be no d;scovery. 5.
SAME-No RELmF AGAINST SOME OF DEFENDANTS.

That no relief can be had against some of the defendants who were partiel to a fraud, will not avail the other defendants.

G. Norris, for complainant. J. E. Burrill, for defendants.
WALLAClE, C. J. The bill is filed by the executor of a. deceased member of the firm of Alexander & Co. for an accounting concerning moneys to be due to that firm from the principal defendants. The bill alleges that between June 10, 1870, and March 4, 1871,the defendants transported for the firm of Alexander & Co. 2,028 car-loads of cattle under a contract which entitled the firm to be allowed cer. tain sums by way of drawback on the monthly settlement of account between the parties, and that upon the monthly settlements which

*Affirmed. See 7 Sup. Ct. Rep. 480.