CHAPTER XX.

SPECIFIC PERFORMANCE.

A CONTRACT of hiring and service will not be specifically enforced. A master or servant claiming redress for the breach of such a contract will be left to sue for damages.

In contracts of hiring and service the parties bargain for the personal qualities of each other. One servant is not as suitable as another, any more than one piece of land is as good as another; and at first blush it might seem that the reasons which have induced Courts of Equity to decree specific performance of contracts relating to land would equally apply to contracts relating to services. In point of fact, Courts of Equity did at one time act upon this view, and the books contain more than one instance in which masters were ordered to retain in their service persons whom they had improperly dismissed (a). This is, however, no longer done; Courts refuse to interfere in order to prevent a master discharging a servant; if improperly dismissed, the latter must seek his remedy in an action for breach of contract. It is thought inadvisable to force upon a master a servant whom he does not like, and with whom he must be brought into close proximity. "We are asked," said Lord Justice Knight Bruce in Johnson v. Shrewsbury & Birmingham Rail. Co. (b) -which was a case in which the plaintiffs had contracted for

(a) Ball v. Coggs (1710), 1 Bro. Par. C. 140; East India Co. v. Vincent (1740), 2 Atk. 82. See Campbell's edition of Fraser, Master and ervant, 102.

(b) See note (c), and Selborne, L. C., in Wolverhampton and W. Ry. Co. v. London and N. W. Ry. Co., L. R. 16 Eq. 439; 43 L. J. C. 133.

a specific sum to work the defendants' line and to keep the rolling stock in repair-" to compel one person to employ against his will another as his confidential servant for duties with respect to the due performance of which the utmost confidence is required. Let him be one of the best and most, competent persons that ever lived, still if the two do not agree, and good persons do not always agree, enormous mischief may be done." Another reason against interfering, mentioned in the above case, is that there could be no "mutuality." A Court could compel a master to retain in his employment a certain servant: it could not compel the latter to perform faithfully his part of the contract, and to work diligently and skilfully (c). The difficulty of securing real performance of such a contract is too great. Hence, if the substance of an agreement be an agreement for personal service, even though it be connected with other matters, the Court will not decree specific performance (d).

(c) Pickering v. Bishop of Ely (1843), 2 Y. & C. C. C. 249. (A bill praying that the plaintiff might be quieted in the office of receivergeneral to the defendant, and that the defendant might be restrained from preventing the plaintiff exercising the duties of the office, dismissed.) Stocker v. Brockelbank (1851), 3 Mac. & G. 250; 20 L. J. Ch. 401. (Plaintiff, manager of the business of the defendants, dismissed by them for negligence; reversing an order by Lord Cranworth, V.C., Lord Chancellor Truro refused to restrain the defendants from excluding plaintiff from the exercise of his duties as manager.) Johnson v. Shrewsbury & Birmingham Ry. Co. (1853), 3 De G. M. & G. 914; 22 L. J. Ch. 921. (Agreement that plaintiffs should run and work all the trains of the company, and provide foreman, mechanics, &c.; Lord Justices Knight Bruce and Turner refused to restrain the defendants from discharging plaintiffs.) Webb v. England (1860), 29 Beav. 44; 30 L. J. Ch. 222. (Apprentice dismissed by master; Master of the Rolls refused to

cancel articles of apprenticeship, or to order a return of a portion of the premium.) Chaplin v. London & North-Western Ry. Co. (1862), 5 L. T. N. S. 601. (Agreement by which the plaintiffs should collect, and deliver goods at certain stations of the defendants; Wood, V.C., refused to restrain the defendants from terminating the arrange. ment.) Ogden v. Fossick (1863), 32 L. J. Ch. 73. (The Lord Justices refused to enforce an agreement whereby the defendant agreed to grant the plaintiff a lease of a certain wharf, and plaintiff agreed to employ defendant as manager of the wharf.) Peto v. Brighton,Uckfield, &c., Ry. Co. (1863), 32 L. J. Ch. 677. Gillis v. McGhee (1863), 13 Ir. Ch. 48. (Plaintiff engaged to take management of baths; no specific performance). Mair v. Himalaya Tea Company (1865), L. R. 1 Eq. 411.

(d) Ogden v. Fossick, see n. (c). White v. Boby (1877), 37 L. T. N. S. 652; 26 W. R. 133. Sce remarks of Jessel, M.R., in Rigby v. Connol (1880), L. R. 14 Ch. D. at p. 487.

What Courts have refused to do directly, they may by injunction effect indirectly. If a contract of service contains a positive agreement to do something, and a negative agreement not to do another, or if such a negative agreement can be implied, they will restrain the breach of the negative agreement even though they are unable to enforce the affirmative. This is a comparatively new branch of Jurisprudence. For a time the Courts occasionally refused to interfere by injunction in aid of the negative part of an agreement when they could not enforce the positive part (e). Since the decision of Lord St. Leonards in Lumley v. Wagner (ƒ), in 1852, they have acted differently. There the defendant, a singer, agreed to sing during a certain period at the plaintiff's theatre. She also engaged not to sing at any other theatre or any concert without the plaintiff's written authority. Lord St. Leonards held that, though unable to compel the defendant to perform her agreement, he could and ought to restrain her from singing elsewhere than at the plaintiff's theatre. It is apparently unnecessary that the contract should contain an express negative stipulation, if it be clear that the parties intended that the services should be exclusively given to one person (g). Courts will also interfere to restrain by injunction persons

(e) Kemble V. Kean (1829), 6 Sim. 333; Kimberley v. Jennings (1836), 6 Sim. 340.

:

(f) 1 D. G. M. & G. 604; Willis v. Childe (1851), 13 Beav. 117 (injunction restraining trustees of a grammar school from removing master) and Daugars v. Rivaz (1860), 29 L. J. Ch. 685 (injunction restraining the elders and deacons of a French Protestant church from hindering the plaintiff, the pastor of the church, in the exercise of his duties), are cases in which the power of dismissal was in question. Many of the cases relate to actors who played at one theatre when under an engagement to play at another; e. g. Montague v. Flockton (1873), L. R. 16 Eq. 189; Webster v.

Dillon (1857), 3 Jur. N. S. 432; 5 W. R. 867; Fechter v. Montgomery (1863), 33 Beav. 22. See also De Mattos v. Gibson (1859), 4 D. G. & J. 276, and Brett v. East India & London Shipping Co., 2 H. & M. (1864), 404. (Agreement by which plaintiff was to be sole broker of defendants, and by which his name was to appear in all advertisements of company; the defendants had ceased to employ the plaintiff as broker; Court refused to compel the defendants to issue advertisements with the plaintiff's name as broker when they could not be compelled to employ him as such.)

(g) As to this, see remarks of Lord Blackburn in Doherty v. Allman (1878), L. R. 3 Ap. 730.

who have contracted not to practise professions or carry on trades or businesses within certain limits. The limitations must, however, as has been already stated, be reasonable, and the contract must not be in restraint of trade (h).

Under the Employers and Workmen Act, sec. 6, a Court of Summary Jurisdiction "may make an order directing the apprentice to perform his duties under the apprenticeship" (i).

(h) Chapter XII., and Howard v. Woodward (1865), 34 L. J. Ch. 46.

(i) 38 & 39 Vict. c. 90; as to sea.

men, see 43 & 44 Vict. c. 16, s. 10, Part II., Chapter XIV.

CHAPTER XXI.

LIEN.

A WORKMAN has a lien upon all materials which have been delivered to him to be mended, repaired, or improved, or made up, and upon which he has expended labour or money.

This refers to a special lien, and not to a general lien for a balance of account which is established by express contracts, or custom, and which is possessed by carriers, for example, or wharfingers (a).

A special lien is created when labour has been expended upon any object. A shipwright repairs a ship put into his possession; he has a lien for his remuneration (b). An article is delivered to a workman; he expends no labour upon it; he cannot set up a lien (c). It was for a time supposed that, if the price of a workman's services were fixed, no right of lien existed (d). But since the case of Chase v. Westmore (e), the contrary doctrine has been recognised.

(a) As to proof of general lien, see Rushforth v. Hadfield (1806), 7 East, 224. As to lien of a purser for wages, see Prince George (1837), 3 Hag. 376. In the United States liens have been much extended beyond Common Law liens, by statutes. "The first attempt to create a mechanic's lien arose from a desire to improve as speedily as possible the city of Washington, as the seat of the permanent Government of the United

States." Phillips on Mechanics'

Liens, p. 11.

An

(b) Franklin v. Hosier (1821), 4 B. & Ald. 341.

(c) Chapman v. Allen, Croke, Car. I. 271 (no lien on cattle taken in to feed).

(d) Whitaker on Lien, p. 47.

(e) (1816), 5 M. & S. 180. (Wheat sent in different parcels at different times to be ground; the price fixed upon for grinding, 15s. a load; the miller had a lien for the whole.)