Kennicott v. Leavitt

Waterman, J. It is manifest that a court of equity could not compel the complainant to act as manager of this theatre, making him “ fully competent to perform the duties of manager,” and obtain from him, against his will, “ faithful service for the artistic and financial success of the theatre.” It is true that in some cases of engagements by actors, contracts for [personal service have been recognized and enforced to the extent of enjoining the actor from singing or playing other than at the place he had contracted so to do. This is very far from giving to a party by decree, that performance to which, by the terms of his agreement, he is entitled. It is but restraining the defendant from inflicting upon the complainant more injury than his refusal to comply with his agreement necessarily entails. Lumley v. Wagner, 1 De G. & Mac. 604. The complainant here is asking that in a matter involving personal trust and confidence, the defendant be required to retain him as manager of a theatre. We have been referred to no case in which such a decree has been made, while the instances are abundant in which the court has refused so to do. Pickering v. The Bishop of Ely, 2 Young & C. 249-266; Ogden v. Fossick, 4 De G. & F. 426; Roberts v. Kelsey, 38 Mich. 602; Marine Co. v. Ripley, 10 Wall, 339-358; Port Clinton R. R. Co. v. Clev. & Tol. R. R. Co., 10 Ohio State, 544-550; De Rivanedoli v. Corsetti, 4 Paige Ch. 263-270. In Stocker v. Brockelbank, 3 Mac. & Gor. 250, 265, Lord Truro said he knew of no instance where it has been supposed that a contract of hiring and service could be made the subject of an application to a court of chancery if the employer claimed the right to discharge his agent or his servant or manager. Specific performance of this contract can not be ordered because it is impossible that the court should enforce, the mutual covenants. Complainant asks that if the defendant can not be compelled to keep him as manager, the defendant be directed to restore to him the leasehold interest assigned by complainant, because, he says, if he is not permitted to remain as manager, the consideration for such assignment will have failed; but it is manifest that it will only in part have failed. Complajn'ant has been for some time manager, and it is impossible for tii'é-’ court to restore the parties to their original positions. What',' the loss to the defendant is from keeping the complainant up to the present time in the position of manager, instead of managing the property himself, or employing some third party, can never be known. It is insisted that the bill should have been retained as one for an account. Complainant does not allege that he has ever asked for an account; and while it appears from the bill that he is still manager of the theatre, it does not appear either that he is ignorant as to the state of the account, or that there is anything to prevent his ascertaining its condition himself, instead of calling upon a court of chancery to do it for him. Nor is there any direct allegation that there are any net profits, concerning which an accounting is asked; nor are any facts set forth from which the existence of net profits can be inferred; the only charge upon this subject is upon information and belief, that upon a just and fair accounting complainant is entitled to receive, on account of his interest in such profits, several hundred dollars. The bill fails to make out a case for an accounting in a court of equity. Dinwiddie v. Bailey, 6 Ves. Jr. 136, 140; Freitas et al. v. Dos Santos et al., 1 Y. & Jer. 573; King v. Rossett, 2 Y. & Jer. 33; Porter v. Spencer, 2 Johns. Ch. 171; McMartin v. Bingham, 27 Iowa, 234; Gloninger v. Hazzard, 42 Penn. St. 389. We see no reason why the complainant’s remedy at law for whatever may be due him, is not plain and adequate. Whether the court below would entertain a demurrer and motion to dismiss, pending a motion to attach for contempt, was a matter entirely within its discretion. The judgment of the court below, dismissing the bill for want of equity, will therefore be affirmed. Judgment affirmed.