‘ 38 FEDERAL nsronrmn.
_ 2. BAME—PENdLTY—LIQ,UIDATED Duchess. ‘ _
A mere penalty designed solely to secure observance of a contract will not
be construed as liquidated damages nor prevent an injunction.
3. S.iMa—Tnnmaraxan Vronvrron or CONTRACT—INJUNOTION. _
When the contract for the exclusive services of a singer in opera provided
for " the forfeiture of a wcek’s salary, or the termination of the engagement at
the managers option, without debarring him from enforcing the contract as he
might see flt," held, that this clause was not liquidated damages, and that an
injunction should issue to restrain a threatened violation of the contract. An
injunction should not be permitted to be used as a means of indirectly enforc-
ing collection of a disputed claim. Conditions to that efiect imposed. _
In Equity.
A. J. Dittenhoqier, for plaintiff. _
Howe at Hunwncl, for defendant. . L
, Baowu, J. This action was brought in the state court to restrain
the defendant, Helen Braham, otherwise known as Lilian Russell,
from violating her agreement with thelplaintiff by singing during
the current season in any other employment than at the plaintiffs
, theater, which the complaint alleges she is about to do. A prelim-
inary injunction having been obtained at the time of the commence-
ment of the action, the cause was removed by the plaintiff to this
court before answer; and the defendant now moves upon ailidavits to
dissolve the injunction. By the agreement in writing between the
‘ parties, the defendant agreed to sing in comic opera in the employ-
ment of the plaintiff whenever required during the season of 1882 to
1883, commencing on or about September 1, 1882, at a stipulated
weekly salary. By article 1 the agreement provides that "the artist
is engaged exclusively for Mr. John McCaull, and during the contin-
uance of this engagement will not perform, sing, dance, or otherwise
exercise her talent in theater, concert halls, churches, or elsewhere,
either gratuitously or for her remuneration or advantage,·0r for that
of any other person or other theater or establishment (although not
thereby prevented from fulfilling her engagement with Mr. McCaul1)
without having first obtained permission in writing of Mr. McGaull;
and for each and every breach of this rule the artist shall forfeit one
week’s salary, or her engagement, at the option of Mr. McCaull; but
such forfeiture of one week’s salary shall not be held to debar Mr.
McCaull from enforcing the fulnllment of this contract in such a
A manner as he may think ht." '
By article 3 it is provided that “no salaries will be paid for any
night or days on which the artist may not be able to perform through
illness or other unavoidable cause; and the artist absenting herself,
except from illness or other unavoidable cause, will forfeit one week's
;