Harlow v. Oregonian Publishing Co.

78 P. 737, 45 Or. 520, 1904 Ore. LEXIS 128
CourtOregon Supreme Court
DecidedDecember 5, 1904
StatusPublished
Cited by8 cases

This text of 78 P. 737 (Harlow v. Oregonian Publishing Co.) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harlow v. Oregonian Publishing Co., 78 P. 737, 45 Or. 520, 1904 Ore. LEXIS 128 (Or. 1904).

Opinion

Mr. Justice Bean

delivered the opinion of the court.

1. Assuming, for the purposes of the opinion, that the plaintiffs have legally succeeded to the rights of South-worth under the original contract, and stand in his place and stead, entitled to all the rights and privileges given him by its terms, and that it embraces all the territory claimed by them, there are two reasons why this suit could not be maintained after the repudiation of the entire contract by the defendants, and the service on the plaintiffs of notice to that effect in June, 1902: first, the plaintiffs, if they are entitled to any relief at all, have a full and complete remedy at law ; and, second, the remedy by injunction or specific performance is not mutual. It could not he invoked by the defendants against the plaintiffs, as the contract is not, and never was, capable of being specifically enforced or enjoined at the suit of Pittock or the defendant publishing company. The contract between Pittock and Southworth created substantially the relation of employer and employé, and this relation continued as.to those who succeeded to South worth’s interest. By its terms Southworth (whom we shall hereafter assume includes parties who have legally succeeded to his rights), was to carry and deliver the paper to all paying subscribers within the designated territory, to endeavor to increase its circulation, to collect subscriptions therefor, and to [526]*526pay weekly for all papers he took from the office, receiving as compensation for “ his labor” a certain proportion of the subscription price of the paper. This relationship was to continue until one party or the other considered a “separation necessary.” In that event, if the parties were unable to agree upon “a proper method of doing so,” each was to appoint one arbitrator, who, if they could not agree, should choose another, whose decision should be final. There may be room for controversy as to the intent and meaning of the arbitration clause, but it seems to us that it was intended, in case either party should desire to terminate the contract, to provide a simple and inexpensive method or means by which its value to the other could be determined, and the amount to be paid, if any, by the one desiring the separation, ascertained. The contract was undoubtedly thought to be advantageous to both parties at the time it was made. Southworth paid $350 for the sole right to carry and deliver the papers, and to receive as a compensation therefor a certain portion of the subscription price. This he supposed to be a valuable right, and one which would increase largely in value, according to his industry and diligence in extending the circulation of the paper, and the character of the services which he should render to its patrons. Pittock, on the other hand, was contracting for the future circulation of his paper, and the collection of subscriptions therefor in the given territory, and this he undoubtedly believed to be of value' to the paper. It was to protect these rights, and to prevent the termination of the contract by either without making compensation to the other, that the arbitration clause was inserted. This, it appears to us, is its true intent and meaning.

We cannot think, however, that the agreement contemplated that the personal relationship between the parties should necessarily continue, against the will of either, [527]*527until the amount of compensation should be ascertained in the manner therein provided. Either party could terminate the contract when he considered it necessary, but, if the parties were unable to agree as to the amount of compensation to be paid by one to the other on account of such separation, they were to submit that matter to arbitration, but not the right to terminate the contract. The provision as to the duration of the contract, and the method to be employed in-separation, or for determining the value in case separation should be deemed necessary, did not prevent either party from dissolving the relation between them at anytime, subject to liability to the other for such damages as he may have sustained if it was not doné in the manner provided. The contract created such a relationship of trust and confidence between the parties that a court of equity will not compel a continuation thereof against the will of either, but will leave Ihe injured party to- his relief at law. The contract, by its terms, was subject to termination at any time ; the party desiring the termination, however, to pay its value to the other. If the termination or separation took place in the manner provided, the value or amount to be paid would be ascertained and determined by arbitrators. If not, the party guilty of the breach would be liable in an action at law for damages, the same as for the breach of any other contract.

2. It follows, therefore, that whether the action of the defendant corporation in repudiating the contract and notifying the plaintiffs that it would no longer be bound thereby be deemed a separation within its terms, or a breach thereof, the effect was to terminate the contract; and the only question between the parties remaining for adjustment is the amount, if any, to be paid by the defendants to the plaintiffs on account of such separation or breach. That question is not cognizable by a court of [528]*528equity. An injunction to restrain the breach of a personal contract, or one relating to personal property, or a mandatory injunction to compel specific performance of such a contract, will not be granted when the recovery of damages at law would adequately redress the impending injury: Chicago & A. R. Co. v. New York, Lake Erie & W. R. Co. (C. C.) 24 Fed. 516; Richmond v. Dubuque & Sioux City R. Co. 33 Iowa, 423; Port Clinton R. Co. v. Cleveland & Toledo R. Co. 13 Ohio St. 545; 26 Am. & Eng. Enc. Law (2 ed.), 17. Indeed, the basis of equitable interference in cases of specific performance is a want of an adequate remedy at law. Mr. Waterman says: “A court of equity will not grant relief where the complaining party will not be deprived of any legal right by withh'olding it, unless he can show clearly that- he is entitled to the relief sought. If the plaintiff has an adequate remedy at law, he must seek his redress there”: Waterman, Spec. Perf. § 9. The same rule is laid down b.y Judge Story, Mr. Fry, and Mr. Pomeroy: 1 Story, Equity (10 ed.), § 716 ; Fry, Spec. Perf. § 12 ; Pomeroy, Spec. Perf. (2 ed.) § 24.

It is admitted, as we understand it, that a court of equity will not decree a specific performance of the contract in ■suit because it requires varied and continuous acts on the part of the defendants, but it is argued that it will enjoin the defendants from violating the contract by delivering papers, or causing them to be sold and delivered, within the territory embraced in plaintiffs’ contract, until such time as the defendants take the proper steps provided in the contract for its termination. Although the remedy suggested is negative rather than affirmative, it is, in effect, a decree for the performance of the contract. Enjoining the defendants from delivering papers or causing them to be sold and delivered in the disputed territory would practically enforce the contract, and require them to furnish [529]*529the papers to the plaintiffs to be so delivered. A prohibition preventing a violation of the contract by the defendants would in this case as effectually compel its performance as an affirmative order to that effect.

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Cite This Page — Counsel Stack

Bluebook (online)
78 P. 737, 45 Or. 520, 1904 Ore. LEXIS 128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harlow-v-oregonian-publishing-co-or-1904.