its terms, may we not fairly interpret "territory" to mean the region tributary to Portland in the usual course of such a business (something which business men can usually fix pretty definitely) and interpret the other clause to mean that defendants shall do nothing which amounts to business competition with covenantees' business? If the courts "ought not to be wiser than the parties" and make their contracts over for them, they ought not to conjure up objections that blind them to what the parties have agreed to and thus defeat fair business transactions.

7. CONTRACTS FOR CONTINUOUS PERFORMANCE

Reference has been made to the prejudice for historical reasons against affirmative decrees in cases calling for more than a single simple act. This is illustrated by Mobile Electric Co. v. City of Mobile.70 The contract required the defendant to furnish electric light and current for ten years. It was objected that this called for continuous performance. The court said:

"While the bill is in the nature of a bill for specific performance of a contract, it does not call for the continuous performance of same by all the parties thereto running through a series of years; it seeks by the negative means of injunction the enforcement of a public duty by preventing the respondents from shutting off the lights of the citizens who comply with the terms of an existing contract placing upon the respondent the discharge of a public duty."

All this is quite in line with the orthodox way of treating such cases." But the English courts are now decreeing specific performance affirmatively under these circumstances, 72 and it must be admitted that the supposed practical difficulties sought to be avoided by use of the negative form are more theoretical than real and grow chiefly out of ex post facto attempts to put a reason behind a historical prejudice. It is significant that one American court during the past year has avowedly followed the English practice. 73

70 79 So. (Ala.) 39 (1918).

"Hood v. North Eastern R. Co., L. R. 8 Eq. 666 (1869); Keith v. National Tel. Co., [1894] 2 Ch. 147; Prospect Park R. Co. v. Coney Island R. Co., 144 N. Y. 152, 39 N. E. 17 (1894).

72 Fortescue v. Lostwithiel R. Co., [1894] 3 Ch. 621, 640-641.

" Brown v. Western R. Co., 99 S. E. (W. Va.) 457 (1919).

74

Two other cases involve interesting points as to the form of the decree. In Village of Larchmont v. Larchmont Park 4 a suit to enforce a contract to maintain a sewage system, the decree provides for plaintiff's doing the work and for charging defendant's land with a lien for the expense. Apparently because it looked too much like real execution and because of jealousy of equity on the part of courts of law, which required the chancellor to proceed cautiously in the direction of enforcement in rem, our precedents thus far have been against this eminently common-sense mode of enforcing construction contracts and contracts for continuous performance.75 But it exists in other parts of the world and has been urged by English writers.76 Also it seems to be authorized by the new Federal Equity Rules." That it found its way into a decree in the jurisdiction of Beck v. Allison may illustrate how the exigencies of judicial administration of justice will sooner or later require resort to modern machinery despite all technical and historical objections. In City of LaFollette v. LaFollette Water Co.,78 in granting specific performance of a contract to furnish water and light to a municipality Judge Sanford said:

"It should further, in my judgment, be an equitable provision of the decree for specific performance that the plaintiff consent that this cause shall be retained on the docket to the end that if at any time the plaintiff shall fail to perform its part of the contract or advancement in science shall disclose new methods of improving the water, which can be installed at a reasonable expense and which can reasonably be required of the plaintiff in a water works system of the character in question, considering all the surrounding circumstances, or the water should become from any cause dangerous to the health of the inhabitants, the defendant shall have leave to apply to the court in supplemental proceedings for such relief as it may be entitled to receive in the premises as a condition of keeping the decree for specific performance in full force and effect." This use of a conditional decree is an admirable example of a court of equity at its best.

74 185 App. Div. 330, 173 N. Y. Supp. 32 (1918). Commented on in 32 HARV. L. REV. 730.

75 Rayner v. Stone, 2 Eden, 128 (1762); Beck v. Allison, 56 N. Y. 366 (1874). 76 Clark v. Glasgow Co., 1 MacQueen, 668 (1854); FRY, SPECIFIC PERFORMANCE, 109; Amos, "Specific Performance in French Law," 17 L. QUART. REV. 372, 37777 Fed. Equity Rules, rule 9.

78 (C. C. A.) 252 Fed. 762, 774 (1918). Commented on in 32 HARV. L. Rev. 439.

Public interest is often a controlling circumstance in these cases of contracts for continuous performance. This is illustrated by several decisions in 1918-19.79 But a salutary warning as to the limitations of this doctrine is to be found in Driver v. Smith.80

8. CONTRACTS FOR PERSONAL SERVICE: NEGATIVE COVENANTS In Whitman v. Whitman 81 an aged father agreed with his son that the latter should take over certain mortgaged premises and the business which the father conducted thereon and, on payment by the son of the mortgage out of the profits of the business, the father was to convey the property to him. The son was then to give the father a lease for life and the two were to receive their living from the business. The land having been conveyed, the father sued to require the son to provide for his living. The court held that a reconveyance could not be decreed, but that the amount required to support and maintain the plaintiff should be paid to him annually and should be a lien upon the land. While this is not a contract for personal service it comes very near one, and a captious court might have made itself much trouble with "practical obstacles" to relief. The main point was to prevent unjust enrichment of the son at the father's expense and to secure to the father his contract right to his living out of the property conveyed. There is, it is true, danger of making over the contract when a court makes use of a remedial device of this sort.82 In such a decree as that in City of LaFollette v. LaFollette Water Co.,83 where Judge Sanford made the plaintiff accept certain modifications of the contract as a condition of specific performance, we are on surer ground. If the plaintiff will not consent, he may have his remedy at law on the contract as made. If he desires equitable relief, he may be required to do equity by accepting reasonable modifications

19 Mobile Electric Co. v. City of Mobile, supra; Village of Larchmont v. Larchmont Park, 185 App. Div. 330, 173 N. Y. Supp. 32 (1918); Brown v. Western R. Co., supra; Oconto Electric Co. v. City, 168 Wis. 91, 169 N. W. 293 (1918); Armour v. Texas R. Co. (C. C. A.), 258 Fed. 185 (1919).

80 89 N. J. Eq. 339, 104 Atl. 717 (1918).

81 174 N. W. (Mich.) 153 (1919).

82 Compare Title Ins. Co. v. California Development Co., 171 Cal. 173, 152 Pac. 542 (1915), where as part of the mortgaged land was in Mexico but the mortgagor was a California corporation, the court ordered the land in California and the stock of the California corporation which would control the property in Mexico to be sold.

83 252 Fed. 762 (1918).

in view of supervening events which would make performance according to the unmodified terms a hardship.84 These cases are significant of a return to the classical conception of the chancellor's powers and the manner of their exercise, and are in welcome contrast to the inflexible mechanical methods of a generation ago, which then seemed to import a decadence of equity. Yet there was some basis for the fear of arbitrary action on the part of the chancellor which led cautious courts to these mechanical methods, and we must be on our guard against a recrudescence of the seventeenth- and eighteenth-century tendency to make contracts over for the parties.85 It may be noteworthy in this connection that three courts during the past year found it necessary to lay down emphatically that they had no power or inclination to do more than enforce the contract as the parties made it.86

Tribune Ass'n v. Simonds 87 has already been commented on in this REVIEW. It applies the doctrine of Lumley v. Wagner 88 to the case of an editorial writer of unique character, not only by reason of his abilities but because of special knowledge, who had been given special value also through plaintiff's spending some thirty-five thousand dollars in exploiting him. Here the hardship upon plaintiff, if left to a remedy at law, was so great as to justify the court in wrestling mightily with mere practical obstacles to relief. In Driver v. Smith 89 the same court had before it the case of three employees of a manufacturing company who had covenanted to serve for two years and not "to be connected or concerned in any other business or with any other person whatsoever during the said two years of service." Here the negative had no separate significance, and the affirmative was not merely one affording obstacles to enforcement but one that ought not to be enforced specifically. Following Sternberg v. O'Brien 90 an injunc

84 Compare Curran v. Holyoke Water Power Co., 116 Mass. 90 (1874).

85 E. g., Lord Thurlow's decree criticized in Drewe v. Hanson, 6 Ves. Jr. 675, 678 (1802); Lord Thurlow's view that time could not be made of the essence even by express stipulation, Williams v. Thompson (1782), NEWLAND, CONTRACTS, 2 ed., 238. 86 Stoddard v. Stoddard, 124 N. E. 91 (1919); Fairey v. Strange, 98 S. E. (S. C.) 135 (1919); Hermann v. Goddard, 82 W. Va. 520, 96 S. E. 792 (1918).

87 104 Atl. (N.'J. Eq.) 386 (1918), commented on in 32 HARV. L. Rev. 176, 17 MICH. L. REV. 97.

88 1 DeG., M. & G. 604 (1852).

89 89 N. J. Eq. 339, 104 Atl. 717 (1918).

* 48 N. J. Eq. 370, 22 Atl. 348 (1891).

tion was denied. Standard Fashion Co. v. Magrane Houston Co.91 was a bill to enjoin breach of a covenant "not to sell or permit to be sold" on its premises other patterns than the plaintiff's. The court does not seem to have been satisfied by the evidence that the negative covenant had any separate significance, nor that any great hardship on the plaintiff would result from leaving it to an action at law. On the other hand, the practical difficulties involved seem more theoretical than real, and the case does not appear very different in principle from Butterick Co. v. Fisher, which the court observes it is not bound to follow. The covenant was held too uncertain to be enforced and a question of its validity under the Clayton Act was also involved. Under such circumstances it is to be regretted that the court felt called on to throw doubt upon the power of equity to coerce affirmative action by means of enforcement of negative covenants and to quote the dictum of Mr. Justice Holmes in Javierre v. Central Altagracia 93 in this connection.

92

Much of the difficulty in such cases grows out of confusing situations where a court ought not to enforce a covenant directly or indirectly and those where there is no reason why it should not be enforced if it may be, but there are practical considerations in the way of direct enforcement. Where the covenant calls for "service of a confining nature and under the direction of the employer as to details," 94 there is more than a practical obstacle. The court ought not to exact performance even if it could. In other cases the interference with privacy or personal liberty may make direct enforcement impossible. In others it may be impossible to coerce directly a course of affirmative action involving individual taste or skill or judgment. In such cases there may be no policy of the law against enforcing the service, so that if the court, without making over the contract, can make use of a negative of separate significance to enforce the contract "in the only manner in which it could be enforced," ,"95 there may be every reason for doing so.

4 Clyatt v. United States, 197 U. S. 207, 215 (1905).

95 Yorkshire Miners' Ass'n v. Howden, [1005] A. C. 256, 269. See also Cincinnati v. Marsans, 216 Fed. 269 (1914); Metropolitan Exhibition Co. v. Ewing, 42 Fed. 198 (1890); Great Northern R. Co. v. Telephone Co., 27 N. D. 256, 265, 145 N. W. 1062 (1914).