Omaha daily bee., 1902-04-27


plaintiff. and 80 dlfacult OF substitution,
that their loss will produce irreparable in
jury, In the legal significance OF that term,
to the plaintiff. The action Of the DEFEND
good faith, for which there would be no
adequate redress at law, and the case
therefore, properly calls for the ald OF
equity, in negatively enforcing the per-
Torrance Of the contract, by enjoining
against Its breach.
On the point Of mutually. Il having been
set up that under the reserve clause the
owner Of the club had an undue advantage
over the player, the supreme court says:
We have then, at the outset, the fact that
1he P1a IA gsfspss R Row SsiibsTsfelS Sn sec e !
by the defendant, and that such acceptance
was made part of the inducement for the
plaintiff to enter into the contract. We
have the further fact that the contract has
been partially executed by services rem
dered and payment made therefor, so that
the situation is not now the same as when
the contract was wholly executory. The
plaintiff has so far performed his part Of
the contract in entire good faith. In every
detail, and it would therefore be in
equitable to permit the defendant TO with
draw from the agreement at this late day.
The term mutually, or lack of mutu-
ality, does not always convey a clear and
definite meaning. In the contract now be-
fore us the defendant agreed to furnish
his skilled professional services to the
plaintiff for a period which might be ex-
tended over three years by proper notice
given before the close of each current year.
Upon the other hand, the plaintiff retained
the right to terminate the contract upon
ten days notice and the payment of salary
at that time and the expense of defendant
But the fact of this concession TO the
plaintiff is distinctly pointed out as part
paid to the defendant and is emphasized
as such. And owing to the peculiar nature
OF thu, services demanded by the business
and the high degree Of efficiency which
must be maintained, the stipulation is not
unreasonable. Particularly is this true
when 1t is remembered that the plaintiff
played for years under substantially the
same regulations.
We are not persuaded that the terms of
allty in remedy. Each party has the pos
sibillty of enforcing all the rights stipu-
lated for in the agreement.
The defendant sold to the plaintiff for a
valuable consideration the exclusive right
to his professional services for a stlpu-
lated period, unless sooner surrendered by
and reasonable notice and payment Of
salary and expenses, until the expiration.
Why should not a court of equity protect
such an agreement until 1t is terminated?
The court cannot compel the defendant to
play for the plaintiff. but 1t can restrain
him from playing for another club in viola
ton of his agreement, No reason is given
why this should not be done, except that
presented by the argument that the right
given to the plaintiff to terminate the con-
tract upon ten days notice destroys the
mutually OF the. remedy. But to this 1t
may be answered that, as already stated,
the defendant has the possibility OF enforce
ing all the rights for which he stipulated in
the agreement, which is all that he can
reasonably ask.
The conclusion Of the court is in part as
follows:
The remedy by injunction is elastic and
adaptable and is wholly within the control
of the court. If granted now 1t can be
easily dissolved whenever a chang In the
circumstances or in the attitude of the
plaintin should seem to require II. The
granting or refusal of an Injunction or its
but is always a question of discretion to be
by the court In view of the par
ucular circumstances.
Upon a careful consideration of the whole
case we are of opinion that the provisions
OF the contract are reasonable, and that
the contract is fully adequate. The evil
dence shows no indications of any attempt
at overreaching or unfairness. Substantial
Justice between the parties requires that
the court should restrain the defendant
from playing for any other club during the
term OF his contract with the plaintiff.
The bill, as filed, contemplated only the
services of defendant for the season of
1901, but 1t Is stated in the argument Of
counsel that since the hearing in the court
below and prior to the argument In this
court the plaintiff by due notice renewed
the current contract for the season of 1902
The specifications of error are sustained
and the decree OF the court below dismiss
ing the bills reversed and the bill Is re-
instated. And ills ordered that the record
be RENTED to the court below for further
proceedings In accordance with this opin-