40 FEDERAL nnronrmn.
ment as still in force. Contracts for the services of artists or authors
of special merit are personal and peculiar; and when they contain
- negative covenants which are essential parts of the agreement, as in
this case, that the artists will not perform elsewhere, and the dam-
ages, in case of violation, are incapable of definite measurement,
they are such as ought to be observed in good faith and specifically
enforced in equity. That violation of such covenants will be re-
strained by injunction, is now the settled law of England. Lumley
v. Wagner, 1 De Cl., M. dz G. 604; Montague v. Flockton, L. B.. 16
Eq. 189, 199.
The subject was exhaustively considered by Fnnnnmau, J., in the
case of Daly v. Smith, 49 How. Pr. 150, in whose conclusions, in ac-
cordance with the English cases above cited, I fully concur. In the
present case it is, however, urgedthat the remedy by injunction
should not be allowed, on theground that the plaintiff’s damages have
been liquidated-by the first article of the contract above quoted;
namely, that "f0r each and every breach of this rule the artist shall *
forfeit one week's salary ;" and the cases of Barnes v. McAllister, 18
How. Pr. 534; Nessle v. Reese, 29 How. Pr. 382; Mott v. Mott, 11
Barb. 127, 134; and Trenor v. Jackson, 46 How._Pr. 389, are cited
in support of this view. ·
There is no doubt of the general principle that where the damages
for the violation of a covenant are either liquidated by the agreement,
’ V or may be easily and definitely ascertained, the pa1·ties will be left to I
hllGl1' remedy at law. But it is clear that in cases of contract like
the present, the damages are not capable of being definitely ascer-
tained or measured; and in the cases first above cited, injunctions
were for that reason allowed. The only question in this case, there-
fore, which distinguishes the present agreement from those, is whether
the provision for the forfeiture of a week’s wages for every violation
of article 1 is such a liquidation of the damages as bars the remedy
I by injunction. In Barnes v. McAllister and in Nessle v. Reese and
Mott v. Mott, supra, there was a covenant to pay a specific sum for
failure to observe the covenant in these cases; and these sums were
held by the court to be strictly liquidated damages.
Where the provision of the contract is in the nature of a penalty,
I and not liquidated damages, it is well settled that sucha provision
will not prevent the, remedy by injunction to enforce the covenant
specifically; and the provision will be construed as a penalty, and not
as liquidated damages, where its plain object is to secure a perform-
ance of the covenant, and not intended as the price or equivalent to w