Bailey v. Collins

59 N.H. 459

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1879
• Status: Published

Opinion

Foster,!.

Courts of equity have jurisdiction of personal negative covenants, and will enforce their performance by injunction. 2 Dan. Ch. Pr. (2d Am. ed.) *1875; 2 Story Eq. Jur., s. 958; High Inj., ss. 695, 696; Lumley v. Wagner, 1 De G. M. & G. 604, overruling Kemble v. Kean, 6 Sim. 333, and Kimberley v. Jennings, ib. 340. And particularly is this true in cases of unauthorized competition in business, in violation of agreements made upon the dissolution of partnerships. Hill. Inj., c. 1, s. 13; High Inj., s. 818; Hanson v. Gardiner, 7 Ves. 305; Angier v. Webber, 14 Allen 211, 216.

If the injury is one for which ample redress may be obtained at law, equity will not interfere. It must be of such a nature as not to be susceptible of adequate compensation in damages, and arising out of the non-fulfilment of a contract that may be enforced by a decree. In such eases the protection of the invaded right by summary equitable proceedings is exercised for the prevention of irreparable mischief. High Inj., s. 818.

There is no incompatibility in the maintenance of a suit at law to recover damages already sustained, and the enforcement at the same time, by injunction, of the contract, which the defendants are continually violating. The one procedure affords compensation for an injury experienced, the other prevents its repetition; and in the case of the violation of an express contract, the plaintiff is not required first to establish his right at law. Foote v. Linck, 5 McL. 616. There is a manifest distinction between such a case, and one where the injunction is sought on the ground of repeated trespasses or nuisances. Burnham v. Kempton, 44 N. H. 78.

The plaintiff, therefore, ought not to be required to elect between the two remedies, since the object sought in each is not the same, and the remedy in neither, of itself, sufficient.

It is undoubtedly true that vague and uncertain contracts will not be enforced (Marble Co. v. Ripley, 10 Wall. 358), but there is nothing in the allegations of this bill to prevent such a decree as the referee has recommended. The court cannot by interpretation make a new contract for the parties, but it may be fair to assume that the referee’s findings are in substantial accord with the allegations of the bill. If veneer and tap-board are designations embracing more than the prohibited kind of manufacture, the decree may be made more general or more specific by amendment.

Fxceptions overruled.

Smith, J., did not sit: the others concurred.