Page:Harvard Law Review Volume 1.djvu/393

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A BRIEF SURVEY OF EQUITY JURISDICTION.

stitute one side of a bilateral contract, and be dependent on the covenant or promise which constitutes the other side of the contract, yet, if the latter have been performed in part, and there have been as yet no breach of it, equity will restrain a breach of the former;^[1] but if an injunction be granted in such a case, and afterwards there be a breach of the covenant or promise which constitutes the other side of the contract, the injunction will have to be dissolved, unless the covenant or promise which constitutes the other side of the contract be of such a nature that equity can enforce it.^[2] Fifthly, if a negative covenant or promise constitute one side of a contract which is partly unilateral and partly bilateral, the negative covenant or promise will be independent of the other side of the contract, unless it be made expressly dependent; and if independent, equity will restrain a breach of it.^[3] Sixthly, though the foregoing propositions are in terms limited to the case where a negative covenant or promise constitutes the whole of one side of a contract, yet it is immaterial, so far as regards the ques-

↑ Dietrichsen v. Cabburn, 2 Ph. 52. It seems, therefore, that the plaintiff was entitled to an injunction in Hills v. Croll, supra, though it be assumed that there was a promise on the part of the plaintiff, and even that performance by the defendant was conditional upon performance by the plaintiff. See reporter’s note, pp. 62, 63–64.
For the reason stated in the text, it seems that the plaintiff was entitled to an injunction in Fothergill v. Rowland, L. R. 17 Eq. 132. See infra, p. 386, note 2.
It seems to be a fatal objection to the decision in Lumley v. Wagner, 1 DeG., M. & G. 604, as well as to that in Donnell v. Bennett, 22 Ch. D. 835, that there had been no part-performance by the plaintiff.
↑ See Stocker v. Wedderburn, 3 Kay & J. 393. There may be instances in which the practice stated in the text may be applied to affirmative covenants and promises, provided the latter be of such a nature that equity can enforce them. For example, in Brett v. E.I. & L. Shipping Co., 2 H. & M. 404, if the only breach committed by the defendants had been in omitting the plaintiff’s name from their advertisements, it would seem that the court might have made a decree requiring the defendants to insert the plaintiff’s name in their advertisements, leave being given to the defendants to apply to the court to be relieved from such decree, in the event of there being a breach of the contract by the plaintiff.
In Peto v. B.U. & T.W. Railway Co., 1 H. & M. 468, the obstacle in the plaintiff’s way was that the acts which he sought to have restrained were not a breach of the defendants’ contract. If there had been a covenant or promise by the defendants not to do the acts in question, it seems that the plaintiff would have been entitled to an injunction.
↑ A negative covenant in a lease is an instance of this. Barret v. Blagrave, 5 Ves. 555, 6 Ves. 104; Hooper v. Brodrick, 11 Sim. 47. In W. & W. Railway Co. v. L. & N.W. Railway Co., L.R. 16 Eq. 433, the defendants were in effect lessees of a line of railway, the plaintiffs being the lessors.
In Hills v. Croll, supra, if the contract was not purely unilateral, it seems that it was at least partly so, in consequence of the payment of the £200 by the plaintiff; and if so, the plaintiff was for that reason entitled to an injunction.

[1] Dietrichsen v. Cabburn, 2 Ph. 52. It seems, therefore, that the plaintiff was entitled to an injunction in Hills v. Croll, supra, though it be assumed that there was a promise on the part of the plaintiff, and even that performance by the defendant was conditional upon performance by the plaintiff. See reporter’s note, pp. 62, 63–64.
For the reason stated in the text, it seems that the plaintiff was entitled to an injunction in Fothergill v. Rowland, L. R. 17 Eq. 132. See infra, p. 386, note 2.
It seems to be a fatal objection to the decision in Lumley v. Wagner, 1 DeG., M. & G. 604, as well as to that in Donnell v. Bennett, 22 Ch. D. 835, that there had been no part-performance by the plaintiff.

[2] See Stocker v. Wedderburn, 3 Kay & J. 393. There may be instances in which the practice stated in the text may be applied to affirmative covenants and promises, provided the latter be of such a nature that equity can enforce them. For example, in Brett v. E.I. & L. Shipping Co., 2 H. & M. 404, if the only breach committed by the defendants had been in omitting the plaintiff’s name from their advertisements, it would seem that the court might have made a decree requiring the defendants to insert the plaintiff’s name in their advertisements, leave being given to the defendants to apply to the court to be relieved from such decree, in the event of there being a breach of the contract by the plaintiff.
In Peto v. B.U. & T.W. Railway Co., 1 H. & M. 468, the obstacle in the plaintiff’s way was that the acts which he sought to have restrained were not a breach of the defendants’ contract. If there had been a covenant or promise by the defendants not to do the acts in question, it seems that the plaintiff would have been entitled to an injunction.

[3] A negative covenant in a lease is an instance of this. Barret v. Blagrave, 5 Ves. 555, 6 Ves. 104; Hooper v. Brodrick, 11 Sim. 47. In W. & W. Railway Co. v. L. & N.W. Railway Co., L.R. 16 Eq. 433, the defendants were in effect lessees of a line of railway, the plaintiffs being the lessors.
In Hills v. Croll, supra, if the contract was not purely unilateral, it seems that it was at least partly so, in consequence of the payment of the £200 by the plaintiff; and if so, the plaintiff was for that reason entitled to an injunction.

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Page:Harvard Law Review Volume 1.djvu/393

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