acquired a reputation under that name, the burden is imposed upon A., if he wishes to restrain B., of proving that the user by B. of his own name is calculated to deceive, and that, therefore, it would be fraudulent in him to continue it with the knowledge that it will have that effect (d). It Where an account is given, and the sales have been made Form of the account of exclusively to middlemen, who were not deceived them- profits. selves, the form of the account is an account of the profits made by the defendant in selling or disposing of the goods made by or for him in imitation of the plaintiff's goods. was urged in Lever v. Goodwin (e) that an exception should be made from the account of goods which the defendant could show to have been bought by the ultimate purchasers as goods of the defendant. But the court held that the profit for which the defendant must account was the profit which he made by the sale of goods in a fraudulent dress to the middlemen. If the middlemen found it for their benefit not to use the goods fraudulently, but to sell them as the goods of the defendant, that did not affect the question whether the sale by the defendant to the middlemen was a wrongful act. This decision does not determine what is the right form of account where the sales by the defendant are made direct to the ultimate purchaser. In such a case, sales made to persons who were not deceived ought, on principle, to be excluded from the account. (d) Injunctions were granted in Croft v. Day (1843), 7 B. 84; Massam v. Thorley's Cattle Food Co. (1880), 14 Ch. D. 748; Tussaud v. Tussaud (1890), 44 Ch. D. 678; In re Thomas Edward Brinsmead and Sons, [1897] 1 Ch. 45; F. Pinet & Cie. v. Maison Louis Pinet, Limited, [1898] 1 Ch. 179. Injunctions were refused in Burgess v. Burgess (1853), 3 D. M. & G. 896; Turton v. Turton (1889), 42 Ch. D. 128. (e) (1887), 36 Ch. D. 1. between injunction and specific performance. CHAPTER XXIV, ENFORCEMENT OF CONTRACTS IN EQUITY. Distinctions THE jurisdiction in equity to enforce contracts in specie falls under two distinct heads-the jurisdictien to grant specific performance, strictly so called, and the jurisdiction to grant an injunction. An injunction may be granted either to restrain the breach of a negative stipulation, or to enforce a positive stipulation in a contract; and, in the latter case, the effect of the injunction is the performance of positive acts by the party enjoined, as much as where specific performance in the strict sense is granted. But the distinction is fundamental between specific performance in the strict sense and cases in which the court by granting an injunction specifically enforces stipulations, whether positive or negative. In the first place, orders for specific performance in the strict sense have always been couched in a positive form. Orders not within the sphere of specific performance which enforce the stipulations of contracts have, until recently (a), always been couched in a negative form, even when in substance they are affirmative. Secondly, where a court of equity was asked to enforce a contract by injunction, it merely acted in furtherance of common law rights. Hence, it did not of itself determine except in the clearest cases (until it received statutory authority to do so) (b), either the validity or construction of the contract, but referred these matters to a court of common law. If the contract could not be enforced at common law by an action of damages, it could not be enforced in equity by an injunction (c). On the other hand, in cases of specific performance strictly so called, the Court of Equity itself has for the last two hundred years decided on the validity and construction of the contract with which it had to deal; and it (a) P. 461. (b) P. 18. (e) Per Lord MACNAGHTEN, in Nordenfelt v. Maxim-Nordenfelt Co., [1894] A. C. 535, p. 563. performs contracts for the breach of which an action of damages could never have been brought, e.g., contracts struck at by the Statute of Frauds but partly performed by the plaintiff. Whether the court is asked to enforce specific performance No assistance given to in the strict sense or to grant an injunction, it refuses its volunteer. assistance where the promise, whether under seal or not, is made without valuable consideration (d). If A. enters into a contract with B. for valuable consideration to do various things, some of which are for the benefit of C., B. can enforce that contract in its entirety, although the result will be to confer incidentally a benefit upon a volunteer (e). On the other hand, C. cannot specifically enforce the contract. A. and B., who alone have entered into it, can at any time agree to do away with it (f). This rule does. not apply where B. either enters into the contract as trustee for C., or afterwards makes himself a trustee for C. of the benefit of the contract. In such a case, if B. is unable or unwilling to enforce the contract, C. can enforce it, although the whole consideration has moved from B. (g). Issue of a marriage are considered both at law and in equity as within the marriage consideration. Therefore, where a contract is made in consideration of marriage, the children or remoter issue of the marriage may enforce its provisions, but they cannot enforce the provisions of a post-nuptial settlement (h). Courts of equity in their anxiety to uphold settlements which were assailed under 27 Eliz. c. 4, enlarged the class of persons who came within the marriage consideration. Thus, it was held in early cases that the consideration of marriage ran through and protected all the limitations of the settlement (i). (d) Jefferys v. Jefferys (1841), Cr. & Ph. 138. (e) Davenport v. Bishopp (1846), 2 Y. & C. C. C. 451; 1 Ph. 698. (f) Bellingham v. Lowther (1674), 1 Ch. Ca. 243; Colyear v. Countess of Mulgrave (1836), 2 Keen, 81; Hill v. Gomme (1839), 1 B. 540; 5 My. & C. 250. (g) See p. 114. (h) In re D'Angibau (1880), 15 Ch. D. 228; Green v. Paterson (1886), 32 Ch. D. 95. (i) Jenkins v. Kemis or Keymeys (1669), 1 Ch. Ca. 103; 1 Ch. Rep. 275. Newstead v. Searles (k) was long supposed to have decided that the children of a widow by her former husband were within the marriage consideration. As that case is now understood, the children of the former marriage were protected merely because their interests were so mixed up with the interests of the possible issue of the then contemplated marriage that the two classes could not well be separated (1). It was held in several cases at law in the seventeenth century that where A. contracted with B. for valuable consideration moving from B. to make a provision for (m), or even merely pay a sum of money to (n), a child of B., the child had a right of action against A. The doctrine as stated was that the nearness of the relation gave the child the benefit of the consideration performed by his father. These cases are no longer law (o). There are cases in the eighteenth century in which courts of equity specifically enforced agreements made for what was called “a valuable consideration in the second degree." Thus, the court enforced against an heir an agreement by the ancestor to convey to his brother of the half-blood (p), and an agreement by the ancestor to convey to his youngest son (q). It was also laid down that a consideration ex turpi causa was good in equity where there was no creditor, and therefore specific performance was enforced at the suit of a concubine (r). These cases were followed by Sir E. SUGDEN in Ireland in the case of a provision for a child (s), but they are no longer law. (k) (1737), 1 Atk. 265; West t. Hardw. 287. (1) Price v. Jenkins (1876), 4 Ch. D. 483; Mackie v. Herbertson (1884), 9 App. Cas. 303, p. 336; De Mestre v. West, [1891] A. C. 264 ; Attorney-General v. Jacobs-Smith, [1895] 2 Q. B. 341. (m) Dutton v. Pool or Poole (1680), 1 Vent. 318, 332; 2 Lev. 210. (n) Physician's case in Bourne v. Mason (1669), 1 Vent. 6; 2 Keb. 457, 527. (0) Tweddle v. Atkinson (1861), 1 B. & S. 393. (P) Watts v. Bullas (1702), 1 P. Wms. 60. (q) Wright v. Wright (1749), 1 Ves. sen. 409. (r) Carey v. Stafford (1725), 3 Swans. 427 n. (8) Ellis v. Nimmo (1835), L. & G. temp. Sugd. 333 (where cases are cited). A. ENFORCEMENT OF CONTRACTS BY INJUNCTION. The court normally, and as a matter of course, restrains Negative the breach of a purely negative stipulation in a contract stipulations enforced by where the plaintiff has performed his part of the contract, injunction. or where the court can do complete justice by compelling him to perform it immediately. But the court will not restrain the breach of a negative stipulation where stipulations of the plaintiff remain unperformed, and the court cannot compel their immediate performance, assuming that they formed part of the consideration for the negative stipulation (t). It is no bar to the enforcement of a negative stipulation that stipulations by the plaintiff still remain unperformed if such stipulations are of merely subordinate importance, and do not form an essential part of the consideration for the defendant's promise. For instance, a landlord may enforce a negative stipulation of his tenant although the lease contains stipulations on the part of the landlord to be performed at a time which has not arrived. At law, where there is a breach of contract, whether Injunction express or implied, the plaintiff is entitled to a verdict; is granted without proof and, if no actual damage has been suffered, he will recover of damage. nominal damages (u). Courts of equity, in enforcing negative stipulations, follow the law, and the court will, as a general rule, restrain the breach of a negative stipulation, although the plaintiff is unable to show that the breach will cause him any appreciable damage. "If parties for valuable consideration," said Lord CAIRNS (x), "with their eyes open, contract that a particular thing shall not. be done, all that a court of equity has to do is to say, by way of injunction, that which the parties have already said by way of covenant, that the thing shall not be done; and in such case the injunction does nothing more than give the sanction of the process of the court to that which already is the contract between the parties. It is not, then, a (t) Hills v. Croll (1845), 2 Ph. 60 ; 1 D. M. & G. 627 n. P.E. 2 M |