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Page:Harvard Law Review Volume 1.djvu/395

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ing an injunction. Whether a covenant or promise is affirmative or negative does not necessarily depend, however, upon the terms in which it is expressed; for it may in truth be negative, though it contain no negative terms. For example, in Clarke v. Price,[1] if the true construction of the contract was, that while the defendant was not bound to report cases for publication, yet if he did do so the plaintiff was entitled to publish them on the terms specified in the contract, it would seem to follow that the defendant’s promise was purely negative, i. e., not to employ any other person than the plaintiff as a publisher, and not to be his own publisher; and hence that an injunction ought to have been granted.[2] The same observation is also applicable to the case of Baldwin v. So. for Diffusion of Useful Knowledge.[3] So, in Hills v. Croll, the defendant’s promise would seem to have been purely negative, namely, to buy of no one but the plaintiff, and to sell to no one but the plaintiff; and, if so, the injunction clearly ought to have been granted. In Hooper v. Brodrick there would seem to have been an implied negative agreement not to use the house for any other business than inn-keeping, provided a license could be obtained. In W. & W. Railway Co. v. L. & N.W. Railway Co., though the agreement was wholly affirmative in form, it was partly negative in effect; and the same thing is true of Fothergill v. Rowland. Finally, in Catt v. Tourle, the agreement, though affirmative in form, was wholly negative in effect.

C.C. Langdell.

  1. 2 Wilson, 157.
  2. The agreement between the parties, as finally modified, was for the sale to the plaintiff of all the cases that the defendant should report, at a fixed price, namely, £7 for every sheet of 16 printed pages.
  3. 9 Sim. 393.
[To be continued.]