Page:Federal Reporter, 1st Series, Volume 3.djvu/436

W. V. TBLeGBAPH CÔ. V. XJ. *. RY. 00. '429 �bill, by which the parties, as is alîeged, ootitracted with each other to abrogate, anatol, set aside, and expunge from said contract the clause proVÎJiing for the transmission of private, social, and family messages of ihe executive officers of the railway company free of charge. Whether said agreement was made upon sufficient consideration ; whether, if valid, it left the entire contract in paroi; and whether, if so, the unex- ecuted portion is void under the statute of frauds, — are ail important questions, which may become very material in the further progress of the cause. In the view I have taken of other questions it is not necessary now to decide these, and I leave them open for further argument and further determi- ïiation. �4. It is insisted by counsel for defendants that the contract set out in the bill (assuming its validity) is one which requires the performance of continuons duties, inVolving the exercise of skill, Personal labor, and cùltîvated judgment; and that* therefore, a court of equity will neither deeree its specifie per- formance nor enjoin its violation. That the contract is in its nature incapable of being enforced by a deeree for specifie performance is very cleàr, (Ma/rble Co. V. Ripley, 10 Wall. 339 ;) but it does not follow that a party to such a contract can have no injunction to iestrain its breach. It is riow settled, I think, by the decided weight of authority, that- in euch cases, although the affirmative specifie performance of the contract is beyond the power of the court, its performance will be negatively enforced by enjoining its breach. Pome- roy on Specifie Performance, §§ 24, 25, 310, 311, and 312, a,nd cases cited. If, therefore, the contract shall be finally held valid by reason of the elimination of the vicious clause, or on any other ground, it will follow that thfe injunction was properly granted. If it should be held that the contract is void, it will still, in my judgment, follow that the defendant should be restrained from taking possession of the property accumulated, under the circumstances stated in the amended bill, until an accounting and settlement can be had. �The demurrer to the amended bill is overruled. Defend- ants may answer if they see fit. If they stand upon their ����