The Cornell law quarterly Volume 6

 
9780217328777: The Cornell law quarterly Volume 6

This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1921 edition. Excerpt: ... It is believed that the distinction based upon the character of the services of defendant is a consequence rather than an explanation of the rule which seems to permit "negative specific performance." The services to be rendered by Miss Wagner could be said to be unique, but that was but a circumstance present in the case and not a reason for the decision. The same might have been said of the services under consideration in Kemble v. KeanK and Kiniberly v. Jennings7 but Lord St. Leonards did not overrule those cases upon that ground, but for the reason that he believed that Shadwell, V. C, who decided those cases, proceeded under the assumption that equity did not have power to enforce any negative covenant by injunction.8 The uniqueness of the services had not influenced the courts in the American cases which preceded Lumley v. Wagner and in which injunctive relief was denied. Furthermore, the English cases since Lumley v. Wagner attach no importance to a consideration of the character of the defendant's services.70 Lumley v. Wagner has been considered as having engrafted an exception upon the general rule that equity will not enforce a contract for personal services, and it has been treated as an exception that ought not to be extended. Lindley, L. J., said in Whitwood Chemical Company v. Hardman J1 "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. I make that observation for this reason, that I think the court, looking at the matter broadly, will generally do much more harm by attempting to decree specific performance in cases of personal service than by leaving them alone; and whether it is attempted to enforce these contracts...

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