Connecticut. Supreme Court of Errors.

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The plaintiffs were the Wro. Rogers Manufacturing Com-
pany and the Rogera Cutlery Company, both joint stock
corporations located in Hartford, and carrying on business
under one management, the manager being William H.
Watrous. On the 17th of March, 1879, the following con-
tract was entered into between Watrous, acting as agent of
the plaintiff companies, and the defendant.

"1. That said companies will employ said Rogers in the
business to be done by said companies, according to the stip-
ulations of said agreement, for the period of twenty-fiye
years therein named, if said Rogers shall so long live and
discharge the duties devolved upon him by said Watrous, as
general agent and manager of the business to be done in
common by said companies, under the directions and to the
satisfaction of said general agent and manager; it being un-
derstood that such duties may include traveling for said com-
panies, whenever in the judgment of said general agent the
interests of the business will be thereby promoted.

" 2. The said companies agree to pay said Rogers for such
services so to be rendered, at the rate of f 1,000 per year for
the first five years of such services, and thereafter the same
or such larger salary as may be agreed upon by said Rogers
and the directors of said companies, said salary to be in full
during said term of all services to be rendered by said Rogers,
whether as an employee or an officer of said companies, un-
less otherwise agreed.

** 8. The said Rogers, in consideration of the foregoing,
agrees that he will remain with and serve said companies
under the directiop of said Watrous, as general agent and
manager, including such duties as traveling for said com-
panies, as said general agent may devolve upon him, includ-
ing also any duties as secretary or other officer of either or
both of said companies, as said companies may desire to have
hiui perform at the salary hereinbefore named, for the first



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868 JANUARY, 1890.



Wm. Rogers Mfg. Co. v, Rogers.



five years, and at such other or further or different compen-
sation thereafter, during the remainder of the twenty-five
years, as he, the said Rogers, and the said companies may
agree upon.

^^ 4. The said Rogers during said term stipulates and agrees
that he will not be engaged, or allow his name to be em-
ployed, in anj' manner, in any other hardware, cutlery, flat-
ware or hollow ware business, either as manufacturer or
seller, but will give, while he shall be so employed by said
companies, his entire time and services to the interests of
said common business, diminished only by sickness and such
reasonable- absence for vacations or otherwise as may be
agreed upon between him and said general agent."

The complaint set out the foregoing contract, and a con-
tract of March 14th, 1879, between the plaintiff companies,
by which they agreed for twenty-five years to do certain
business on their joint account and under one management,
the defendant then being secretary of the Rogers Cutlery
Company, one of the plaintiffs. The complaint then pro-
ceeded as follows :

After the execution of said last named contract, in order
to make it desirable to the defendant to become and continue
permanently interested in and connected with the new bus-
iness thereafter to be severally done by said corporations
under the control of said Watrous as general manager there-
of as provided in said contract, and to prevent him from al-
lowing his name to be used in conflict therewith, and as a
consideration for the performance of his own contract addi-
tional to those named therein, the said Watrous, in and by
another contract with the defendant dated March 17th, 1879,
conveyed to the defendant the equitable interest and owner-
ship in one hundred and sixty shares of the capital stock of
the Rogers Cutlery Company aforesaid, upon the terms and
conditions named in the agreement ; and the defendant has
since, and prior to the date of this complaint, received upon
said shares of stock $2,995.99 in dividends, and still remains
entitled to the receipt of continued dividends thereon and



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JANUARY, 1890. 859



Wm. Rdgers Mfg. Co. v. Rogers.



to full conveyance of said shares according to the terms of
said contract.

Id accordance with said agreement the defendant entered
the service of the plaintiffs, and therein has continued until
the present time as the secretary of each of said companies
and in the discharge of the duties therein so as aforesaid
agreed by him to be performed, and from the date thereof to
the present time the provisions of said agreement (except
as hereinafter stated) have been executed both by the
plaintiffs and the defendant ; the salary of the defendant has
by mutual agreement been raised to $2,000 per annum, and
the services of the defendant, by reason of his familiarity
with the plaintiffs' business and knowledge of their custom-
ers, acquired by his said employment since said 14th day of
March, 1879, have become and now are of special value to
the plaintiffs ; and the plaintiffs desire that the defendant
should continue in their employ and faithfully keep and
perform all the obligations of said agreement.

The plaintiffs are informed and believe, and therefore
aver, that the defendant secretly and with intent that the
fact should not be known to the plaintiffs, now is and for
some time past has been conspiring and negotiating with
sundry persons and corporations to the plaintiffs unknown,
but all of whom, as the plaintiffs believe, are their competi-
tors in business, with the purpose and intent of engaging, in
connection with such persons and corporations, in the manu-
facture and sale of cutlery and silver-plated flat and hollow
ware, and with the intent and purpose of allowing his name
to be used and employed in connection with such business
as a stamp on such silver-plated ware, and with the further
intent of using in the interest of and for the advantage of
such persons all his knowledge and information of the plaint-
iffs' business and of their customers which he has obtained
by virtue of his employment as aforesaid. And the plaintiffs
further say that the defendant threatens to leave theii- em-
ploy and to engage with such other parties in the business
of manufacturing and selling cutlery and silver plated flat
and hollow ware, and to allow his name to be used and em-



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860 JANUARY, 1890.



Wm. Rogers Mfg. Co. «. Rogers.



ployed iu connection with such business as a stamp upon
such silver-plated goods and otherwise ; all of which would
be in violation of the defendant's agreement with the plaint-
iffs, and would deprive the plaintiffs of all the benefits and
advantages secured to them by said agreement and to which
they are justly entitled. And the plaintiffs aver that such
conduct and doings of the defendant would occasion great
and irreparable loss and damage to the business of the
plaintiffs, and the use of defendant's name as a stamp or
trade-mark on said cutlery, silver-plated flat and hollow
ware as aforesaid, would cause the same to so resemble the
similar goods made and sold by the plaintiff:! and stamped
with the plaintiffs' stamps and trade-marks, of which the
most prominent part is the word "Rogers," as that the
same would be liable to be mistaken for those of the plaint-
iffs, and would be liable to be sold and would be sold as
and for goods made and sold by the plaintiffs, and thereby
great and special loss and damage would be done to the
plaintiffs in their business, for which there would be no ad-
equate remedy at law. And they aver that the defendant
has little, if any, property, and substantial damages, if recov-
ered, could not be enforced at law.

The plaintiffs claim an injunction restraining the defend-
ant from leaving the employment of the plaintiffs, and in
any manner engaging in any other hardware, cutlery, flat
ware, or hollow ware business, and from allowing his name
to be employed in any manner in any such other business
than that of the plaintiffs.

The defendant demurred to the complaint, assigning the
following gi-ounds of demurrer: —

1. The contract therein set up is one-sided and unequal
in that, among other things, it does not bind the plaintiffs
for any definite time.

2. It sets up an affirmative engagement not a proper sub-
ject for equitable relief, and therefore the negative relief
prayed for cannot be afforded.

3. The contract set up is not a contract for the employ-
ment of services involving special skill and training, nor for



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JANUARY, 1890. 861



Wm. Rogers Mfg. Co. v, Rogers.



services involving the exercise of high powers of mind pecu-
liar to the defendant.

4. An injunction against the defendant as prayed for
would be mischievous and against public policy.

The case was heard before Fenri, J.^ and the complaint
held insuflBcient and judgment rendered for the defendant.
The plaintifls appealed.

jP. Chamberlin^ with' whom was U. S. WhitCy for the appel-
lants.

1. The contract is not one-sided and unequal, as the de-
fendant claims in his first cause of demurrer, but it binds
both parties for a definite time and in precisely the way the
parties chose and adopted to establish their mutual obliga-
tions. But if it did lack mutuality, that would not be by
any means decisive, for while there is a general rule of
equity that the element of mutuality must exist to justify
specific performan(je (which is something more than we
claim here), there are many aud clear exceptions to that
rule. Clason v. Bailey^ 14 Johns., 484; In re Hunter^ 1
Edw. Ch., 1 ; Van Doren v. Robinson^ 16 N. Jer. Eq., 256 ;
Hawralty v. Warrm, 18 id., 124 ; Woodruff v. Woodruff, 44
id., 349.

2. But the defendant, in his second cause of demurrer,
says the contract sets up an affirmative engagement, not a
proper subject for equitable relief, and that therefore the neg-
ative relief prayed for cannot be afforded. To this we reply
that the mere fact that the court could not grant affirmative
relief, covering the whole contract, would be no reason
whatever why the relief which is clearly within its power
should not be given. " Where a contract contains covenants
to do certain acts, and also to abstain from doing certain
other acts, the court has jurisdiction to restrain the breach
of the negative covenants, though there may be no jurisdic-
tion to compel specific performance of the affirmative cove-
nants." 2 Story's Eq. Jur., § 722 a. See also 3 Wait's Actions
& Defences, 698 ; Lumley v. Wagner^ 1 DeG. M. & G., 604 ;
Stiff V. C(M9elU 20 Jurist, 348; Kemhle v. jKean, 3 Sim., 383.



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862 JANUARY, 1890.



Wm. Rogers Mfg. Co. v. Rogers.



3. It is claimed that ^Hhe contract set up is not a con-
tract for the employment of services involving a high degree
of skill and training, nor for services involving the exercise
of high powei-s of mind peculiar to the defendant." Tlie
defendant had been secretary of the Rogers Cutlery Co.,
and in accordance with his agreement he entered the service
of the plaintiffs, and therein continued until the bringing of
this action, as secretary of both companies. His salary,
originally $1,000, had been increased to 12,000, " and the
services of the defendant, by reason of his familiarity with
the plaintiff's business and knowledge of their customers,
acquired by said employment, had become, and were at the
date of the complaint, of especial value to the plaintiflEs."
The skill and training as secretary, which would result from
eight yeai-s and more in this oflScial and executive capacity,
should count for something, and unquestionably separated
the defendant from the class of mere laborers, whose ser-
yices can be replaced from the market at any time at the
market rate. His services were peculiar and individual in
their character, as contrasted with sei-vices "material and
mechanical," and were therefore of themselves of the kind
in which a court of equity will interfere by injunction in
aid of a special performance. In this special, peculiar and
individual employment the defendant had obtained knowl-
edge of the plaintiffs' business and of their customers, and
tKe thing which he threatened and had conspired with others
to do, and intended to do, was to leave the employment of
the plaintiffs and use the skill which he had acquired and the
knowledge which he had obtained of the plaintiffs' business
and customers for the advantage of himself and his co-
conspirators in establishing and carrying on a rival business,
using his name as a trade-mark and otherwise in such man-
ner that the goods to be made by the conspirators would so
resemble the goods of the plaintiffs as to be mistaken there-
for. And he proposes to go out from the plaintiffs' business
with $4,000 worth of the plaintiffs' capital stock, upon
which he has received $3,000 in dividends, in his pocket.
It is alleged, and so admitted by the demurrer, not only that



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JANUARY, 1890. 863



Wm. Rogers Mfg. Co. v, Rogers.



it is in violation of his agreement, and that it will deprive
the plaintiffs of all advantage of the agreement, but also
that the damage and loss would be great and irreparable,
and that the plaintiffs have no adequate remedy at law. It
is also alleged and admitted that the defendant ^^ has little,
if any, property, and that substantial damages, if recovered,
could not be enforced at law."

4. But the defendant says that ^^an injunction against the
defendant as prayed for would be mischievous and against
public policy." That is, that this injunction, restraining
the defendant from engaging in any other similar business
than this, in which he is engaged by his agreement, is against
public policy. The cases in which it has sometimes been
held that it wits against public policy that a man should be
unreasonably restrained from doing business, are where a
man sells himself out of his special business and agrees not
to engage in it again. It used to be held, perhaps moie
vigorously and broadly than it is now, that it was for the
interest of the public that one should somewhere follow the
business which he was trained to and familiar with. But it
has never been held that where a man has agreed to follow
a business in one place, or with one partner or set of part-
ners, it was against public policy that he should perform his
agreement. Story (2 Eq. Jur., § 722,) gives an instance
among many, as follows: — '*When one partner contracts
that he will exert himself for the benefit of the partnership,
a court of equity cannot compel the specific performance of
that part of the agreement; yet if he has also contmcted
that he will not cany on the same trade with other persons,
the court will restrain him from breaking that part of his
agreement." See also Printing ^ Registering Co. v. Sampson^
L. R., 19 Eq., 462 ; Diamond Match Co. v. Roeher, 106 N.
York, 473, 482, 483; Hodge v. Sloan, 107 id., 244.

C. R. IngersoU and F. L. Hungerford, for the appellee.

Andrews, C. J. Contracts for personal service are mat-
ters for courts of law, and equity will not undertake a spe-



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864 JANUARY, 1890.



Wm. Rogers Mfg. Co. o. Rogers.



ciflc performance. 2 Kent's Com., 258, note b; Hamblin v.
Dinneford^ 2 Edw. Ch., 629 ; Sanqairico v. Benedetto 1 Bar-
bour, 315 ; Haighb v. Badgeley^ 15 id., 499 ; Deliivafinoli v.
Corsetti^ 4 Paige, 264. A specific performance in such cases
is said to be impossible because obedience to the decree can-
not be compelled by the ordinary processes of the court.
Contracts for personal acts have been regarded as the most
familiar illustrations of this doctrine, since the court cannot
in any direct manner compel the party to render the service.

The courts in this country and in England formerly held
that they could not negatively enforce the specific perform-
ance of such contracts by means of an injunction restraining
their violation. 3 Wait's Actions & Defences, 754 ; Marble
Company v. Ripley^ 10 Wallace, 340 ; Burton v. Mar$hall^ 4
Gill, (Md.,) 487 ; De Pol y. SoUke, 7 Robertson, (N. Y.,)
280 ; Kemble v. Kean^ 6 Simons, 333; Baldwin v. Society for
Diffusion of Knowledge^ 9 id., 893 ; Fothergill v. Rowlandy
L. R., 17 Eq., 132.

The courts in both countries have, however, receded some-
what from the latter conclusion, and it is now held that
where a contract stipulates for special, unique or extraordi-
nary personal services or acts, or where the services to be
rendered are purely intellectual, or are peculiar and individ-
ual in their character, the court will grant an injunction in
aid of a specific performance. But where the services are
material or mechanical, or are not peculiar or individual, the
party will be left to his action for damages. The reason
seems to be that services of the former class are of such a
nature as to preclude the possibility of giving the injured
party adequate compensation in damages, while the loss of
services of the latter class can be adequately compensated
by an action for damages. 2 Story's Eq. Jur., § 958 a ; 3
Wait's Actions & Defenses, 754; Pomeroy's Eq., § 1343;
California Bank v. Fresno Canal Co.^ 53 Cal., 201 ; Singer
Sewing Muhine Co. v. Union Button Hole Co.^ 1 Holmes,
253 ; Lundey v. Wagner, 1 De G. M. & G., 604; South Wales
R. JB. Co. V. Wythes, 5 id., 880 ; Montague v. Flockton, L. R.,
16 Eq., 189.



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JANUARY, 1890. 365



Wm. Rogers Mfg. Co. v. Rogers.



The contract between the defendant and the plaintifiFs is
made a part of the complaint. The services which the de-
fendant was to perform for the plaintifiFs are not specified
therein, otherwise than that they were to be such as should
be devolved upon him by the general manager ; "it being
understood that such duties may include traveling for said
companies whenever in the judgment of said general agent
the interests of the business will be thereby promoted ; "
and also "including such duties as traveling for said com-
panies as said geneml agent may devolve upon him, includ-
ing also any duties as secretary or other oflScer of either or
both of said companies as said companies may desire to
have him perform." These services, while they may not
be material and mechanical, are certainly not purely intel-
lectual, nor are they special, or unique, or extraordinary ;
nor are they so peculiar or individual that they could not be
performed by any person of ordinary intelligence and fair
learning. If this was all there was in the contract it would
be almost too plain for argument that the plaintifiFs should
not have an injunction.

The plaintiffs however insist that the negative part of the
contract, by which tlie defendant stipulated and agreed that
he would not be engaged in or allow his name to be em-
ployed in any manner in any other hardware, cutlery, flat-
ware or hollow-ware business, either as a manufacturer or
seller, fully entitles them to an injunction against its viola-
tion. They aver iu the complaint, on information and be-
lief, that the defendant is planning with certain of their
competitors to engage with them in business, with the intent
and purpose of allowing his name to be used or employed
in connection with such business as a stamp on the ware
manufactured ; and they say such use would do thq^m great
and irreparable injury. If the plaintifiFs owned the name of
the defendant as a trade-mark they could have no difi&culty
in protecting their ownership. But they make no such
claim ; and all arguments or analogies drawn fi'om the law of
trade-marks may be laid wholly out of the case.

There is no averment in the complaint that the plaintifiFs



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866 JANUARY, 1890.

Wm. Rogers Mfg. Co. v, Rogers.

are entitled to use, or that in fact they do use, the name of
the defendant as a stamp on the goods of their own manu-
facture ; nor any averment that such use, if it exists, is of
any value to them. So far as the court is informed the de-
fendant's name on such goods as the plaintiffs manufacture
is of no more value than the names of Smith or Stiles or
John Doe. There is nothing from which the court can see
that the use of the defendant's namie by the plaintiffs is of
any value to them, or that its use as a stamp by their com-
petitors would do them any injury other than such as might
grow out of a lawful business rivalry. If by reason of ex-
traneous facts the name of the defendant does have some
special and peculiar value as a stamp on their goods, or its
use as a stamp on goods manufactured by their rivals would
do them some special injury, such facts ought to have been set
out, so that the court might pass upon them. In the absence
of any allegation of such facts we must assume that none
exist.

The plaintifiEs also aver that the defendant intends to make
known to their rivals the knowledge of their business, of
their customers, etc., which he has obtained while in their
employ. But here they have not shown facts which bring
the case within any rule that would require an employee
to be enjoined from disclosing business secrets which he has
learned in the course of his employment and which he has
contracted not to divulge. Peahody v. Norfolk^ 98 Mass.,
452.

There is no error in the judgment of the Superior Court.

In this opinion the other judges concurred.



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r



JANUARY, 1890. 367



Ryder v. Cooley.



Louis E. Ryder v8. George R. Cooley. '

New Haven A Fairfield Cos., Jan. T., 1800. Andrews, C. J., Oabpeh-
TEB, LooMis, ToRBANOB and Fenn, Js.

The plaintiff, who carried on a retail confectionery business, disposed of
his entire stock and interest in the business, put the purchaser in full
possession, giving him a written absolute conveyance, and received and
retained the consideration, a small part of which was two notes of the
purchaser payable on time. Held that, as a^jcainst creditors of the pur-
chaser, the plaintiff would not be allowed to show that, by an agree-
ment with the purchaser at the time, the sale was to be conditioned
upon the payment of the notes.

[Ajgued January 21st— decided February 17th, 1890.]

Action for the taking and conversion of a stock of goods ;
brought to the Superior Court in New Haven County. The
defendant averred in his answer that he had been appointed
trustee in insolvency of the property of one McKe^n, who
had been in possession of the goods and carrying on busi-
ness in the store containing them, and that he took posses-
sion of them as such trustee. The case was tried to the
court before F. B. HalU J*^ the facts found and judgment
rendered for the defendant. The plaintiff appealed. The
case is more fully stated in the opinion.

C, H. Fowler^ for the appellant.

W. C. Case and TT. K Ely^ for the appellee.

Fbnn, J. This is an action brought to recover damages
for the taking and convei-sion of pei^sonal property. The
finding discloses that on July 19th, 1886, the plaintiff, for
the agreed price of $10,000, sold and transferred to one
McKean the confectionery business before that time carried
on by the plaintiff on Chapel street, New Haven. It was
agreed that the consideration should be paid and received
in the form of certain shares of stock at the valuation of



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868 JANUARY, 1890.



Ryder v, Cooley.



$5,000, a deed of an equity ia certain real estate, $200 in
cash, and three notes of McEean, one for $2,540, at six
months, and two, one being for $900 the other for $600,
each payable in one month, and secured by the conveyance
to the pkintiff of a certain other equity in real estate. The
cash was paid, stock transferred, and the notes and deeds
executed and delivered, and the plaintiff thereupon gave tr
McKean a bill of sale, under seal, absolute in form, of said
personal property, and also delivered to him possession of
the store and goods. The plaintiff has ever since retained
the notes, deeds and property, but they have been of no
benefit to him, no part of either of the three notes lias ever
been paid, the stock has had no market value, and the prior
incumbrances on the real estate were so great that the
plaintiff has never taken possession of it and has regarded
it as worthless. McKean immediately took possession of
the store, and thereafter continued to conduct the business
in his own name, until the property was, on August 20th,
1886, attached, and it remained in the hands of the officer



Online LibraryConnecticut. Supreme Court of ErrorsConnecticut reports: containing cases argued and determined in ..., Volume 58 → online text (page 33 of 60)