tion of equity jurisdiction, whether a single negative covenant or promise of several negative covenants or promises constitute one side of a contract. Seventhly, it will be no objection to enforcing a negative covenant or promise in equity that such covenant or promise constitutes only a part of one side of a contract, the remainder being affirmative, if the latter be of such a nature that equity can enforce that also; or if the negative part be so separate and distinct from the afiirmative part that the former ought to be performed, whether the latter be performed or not; or if there have been as yet no breach of the affirmative part; but if an injunction be granted on this latter ground alone, it will have to be dissolved in the event of the affirmative part being afterwards broken.
Care must be taken not to assume unwarrantably that a contract contains a negative covenant or promise; for it does not follow, because a breach of a covenant or promise may consist of acts of mis-feasance, that therefore the covenant or promise is negative. Accordingly it seems that there was no negative promise in Smith v. Fromont; and that fact alone was a sufficient ground for refus-
- It seems that equity had no jurisdiction over the affirmative part of the defendant’s contract in W. & W. Railway Co. v. L. & N.W. Railway Co., supra.
- Such was in terms the nature of the negative promise in Kimberley v. Jennings, 6 Sim. 340; but the court held that, if such was its true construction, it was so hard a bargain that equity would not enforce it. In Rolfe v. Rolfe, 15 Sim. 88, it does not appear that there was an affirmative covenant by the defendant, William Rolfe, to serve the plaintiff as a cutter; but, even if there were, the negative covenant was wholly distinct from it. In W. & W. Railway Co. v. L. & N.W. Railway Co., supra, in Donnell v. Bennett, supra, in Brett v. E.I. & L. Shipping Co., supra, in Hooper v. Brodrick, supra, and in Fothergill v. Rowland, supra, it seems that the affirmative covenants covered all the ground that was covered by the negative covenants, but not that alone; that, therefore, though every breach of the negative covenant in each of those cases would be also a breach of the affirmative covenant, the converse was not true. In all such cases, it seems that equity may enforce the negative covenant, though the affirmative covenant be broken, and equity be not able to enforce that.
- Morris v. Colman, 18 Ves. 437; Dietrichsen v. Cabburn, supra.
In Kemble v. Kean, supra, and in Lumley v. Wagner, supra, the defendant’s covenants were both affirmative and negative, both the affirmative and the negative parts had been broken, the court had no jurisdiction over the affirmative parts, and the affirmative and negative parts were so inseparably connected that the latter could not properly be enforced unless the former were performed. The decision, therefore, in Lumley v. Wagner ought, it seems, to have followed that in Kemble v. Kean. A consequence of the decision in the plaintiff’s favor was that a part of the contract was enforced after the contract was at an end, and after a right had accrued to the plaintiff to recover full damages for its breach. Moreover, the defendant still remained liable for full damages at law, notwithstanding the decision against her in equity.
- See supra, page 385, and note 2.
- 2 Swanst. 330.