Hahn v. Concordia Society

Miller, J., delivered the opinion of the Court. On this appeal from an order granting an injunction we are confined to the case made by the bill. The bill filed by the appellees on the'5th of October, 1874, charges in substance, that they have in their Hall in Baltimore a stage and equipments for the exhibition of theatrical performances, and had at great expense and trouble employed a number of actors to act at their theatre from the 16th of September, 1874, to the 16th of April, 1875, and among others had employed the defendant under a contract in German, a translation of which into English is filed as an exhibit with the bill. By that agreement (all the terms of which need not be stated,) the complainants engaged the defendant for the term beginning September 16th, 1874, until April 16th, 1875, at a monthly salary of $90, as an actor in all kinds of performances they might deem proper, and he agreed so to act for them.

Then there is a stipulation to the effect ⁴⁶³ that if the defendant should break this engagement after the contract is signed, he obligates himself to pay to the complainants a conventional fine of $200, which sum is forfeited by any violation of the contract and requires no particular legal proceedings for its execution. There is also, the further stipulation, that without the written permission of the theatre committee of the complainants, the defendant will not perform or take part in any production whatever, which is not under the auspices of that committee. The bill then charges that in open violation of this agreement the defendant has suffered himself to be announced and published to perform at Turner Hall, another and different theatre in Baltimore, that he has no property out of which a judgment at law could be made, and that his appearance at such other theatre will irreparably injure the complainants in the management of their theatre, which depends entirely upon each actor acting the part or role required of him under the management of their committee. The bill then prays for an injunction prohibiting the defendant from acting, playing, performing, or assisting in acting, playing or performing at the stage or theatre of Turner Hall in Baltimore City, and we assume it was granted in the terms asked for.

This contract differs from that in Burton vs. Marshall, 4 Gill, 487 , in that it contains an express negative stipulation that the defendant would not do that which the injunction prohibited him from doing, whereas, in that case the only agreement on the part of Mrs. Burke was to render the services specified in her contract, and the injunction prohibited her from doing acts in relation to which she had made no stipulation. The Court noted the distinction between the case before them, and that of Morris vs. Colman, 18 Ves., 437, where a play-writer who had covenanted not to write any dramatic performance for another theatre was, by injunction, restrained from violat ⁴⁶⁴ ing the covenant. They also referred to the then recent case of Kemble vs. Kean, 6 Simons, 333, where the proprietors of Oovent Garden Theatre agreed with an actor that he should act for twenty-four nights during a certain period, at their theatre, and in the meantime should not act at any other place in London, and the Yice-Chancellor held that the Court could not enforce the positive part of the contract, and would not therefore restrain by injunction a breach of the negative part. Our predecessors seem however to have rested their judgment against the injunction in Burton vs. Marshall, upon entirely different grounds, and we find in their opinion no definite conclusion as to which of these apparently conflicting English authorities they would have adopted if the necessities of the case before them had required a decision of that question.

But since that time the question has arisen in several cases in the English Courts, and in Lumley vs. Wagner, 1 De G., Mac. & G., 604, there is a very able and masterly review of all