M,CAULL v. BBAHAM. 45
theater in New York, to play for him for three years, also, not to act except
for Hamblin during the term; but an injunction was refused because there was
no ground of jurisdiction over the atlirmative part of the agreement, while
the negative was a mere matter between employer and employe.(i) When
Burton, the famous comedian of a generation ago, was manager of Front- j
street theater, Baltimore, he bargained with Burke to withdraw Mrs. Burke’s
services from the employment of Manager Marshall and bring her to join Bur-
ton’s company. Marshall then suedfor an injunction, which was issued be·
low. On appeal the court held that either of three facts shown, viz., there
was no express restrictive clause in the contract between the Burkes and
complainant; complainant was prosecuting an action at law; and Mrs.
Burke's engagement, if any, would be void as that of afeme covert,—was
enough to defeat the suit.(j) De Pol v. SohZ7ce(k) was decided after Lumley
v. Wa.gncr,(Z) yet does not mention it, but takes the older doctrine for granted. '
The opinion assumes, however, that irreparable damage to follow from a
breach of a negative covenant may be ground of equitable jurisdiction, and
the judge refused to enjoin the damcdse Sohlke from performing for other
employers, not for want of power, but because, as the plaintiffs had not a ,
theater in operation in which they could use her services, therefore they could
not be irreparably damaged by her dancing elsewhere for the time being.
Thus American as well as English courts, down to the middle of ourcentury, 1 ·
were unwilling to enjoin an employe’s breach of a. collateral promise not to
serve elsewhere, unless the alllrmative engagement were a proper subject-
matter of equitable relief. i ·
Dnvmormnur or rms Monnmv Doornmn. Since about 1850 a broader
and more liberal position has been taken. An advance was distinctly made
in Dietrichscn v. Oabbw·n(m) and Rolfe v. ROLfc,(n) (both 1846,) in which the
rule adverse to enforcing a negative stipulation was distinctly questioned and
limited; though these were not cases of professional services, but of contracts,
for exclusive employment in mercantile duties. The circumstances of a .
controlling decision,(0) which soon followed them, were that Manager Lum-
ley engaged Mlle. J ohanna Wagner to sing at Her Majcsty’s theater, London,
i for three months, in certain specified operas, at a weeklysalary of £100. The
agreement, as originally signed, did not in so many wordsforbid her from
singing for any other employer; but a few days afterwards the manager ob-
jected to the omission, and Mlle. Wagner’s agent then added an article, say-
ing; **Mlle. Wagner engages herself. not to use her talents at any other the-
ater, nor in any concert or reunion, public or private, withoutthe written
authorization of Mr, Lumley." Notwithstanding this,vshe did accept (for a
higher salary, it was said) an engagement from Manager Gye to sing at the
Italianopera, Covent Garden, and Lumley sued for an injunction.’ It was
granted below.(p) On appeal the familiar objection was urged that equity
will not enjoin the breach of a negative covenant where it cannotdecree per-
(1) 1835, Hamblin v. Dinneford, 2 Edw. Ch.529. (m) 2 Phillips, B2, A
(j) 1846, Burton v. Marshall, 4 Gill, 487. (n) 15 Sim. 88. V `
(k) 7 Robt. 280, (1867.) (0) Lumley v. Wagner. '
(I) Infra. (p) Lumley v. Wagner, 5 De Gt: US. 485.