Harms v. Stern

EEARNED HAND, District Judge. [1] The defendants’ contract was valid at law, though equity would not specifically enforce its performance. Romberg could not be put in jail, if he performed his songs, or if he refused to malee an assignment of his literary property; but the obligation to assign was valid, and the obligees might get a judgment for damages at law for his failure to perform. The agreement, though in .words of present assignment, could not operate at • once, because the subject-matter had not come into existence; but, when Romberg composed the song, it did come into existence, and was at least valid as an executory contract to assign, whether enforceable only at law or not. Furthermore, it operated as a license to the defendants to publish the song, as between themselves and Romberg, and, at least as against any one who took with notice, it was as binding as between Romberg and the defendants. I do not mean to decide how far it would operate as a license independently of such notice, because that question is not presented. [2] Romberg’s first assignee was the Wintergarden Company, and they had ample notice, before the song was composed, that there was some agreement between Romberg and the defendants,- Their own agreement with the defendants they appear to have disregarded. It is true that Dreyfus, the plaintiff’s president, swears that the plaintiff had no notice of the agreement; but the defendants present the most persuasive evidence to the contrary. In any case the question raises [583] an issue of fact, which I shall not resolve in favor of the party applying for the injunction. Motion denied.