deeds and the like, or if the stock cannot be purchased in the open market, or it have a special peculiar value to the plaintiff, courts of equity may, and ordinarily will, decree specific performance. So where the plaintiff has put money or other property in the hands of the defendant so as to create a fiduciary relation between them, or the defendant in any proper sense has made himself the trustee of the plaintiff, performance may be decreed.1 Where goods have been purchased on a promise of security. Where the plaintiff sold a stock of goods to the defendant for a specified sum, of which a certain sum was in hand, and securities were to be executed for the unpaid purchase money, the defendant, after being put in possession, refused to give the securities. A specific performance was decreed. 2 Delivery of promissory note enforced, when. When, by the terms of the contract a trust has been created in reference to a promissory note or other instrument in writing, a court of equity may enforce the specific performance of the agreement 1 Avery v. Ryan, 74 Wis. 591; 43 N. W. R. 317. Lyon, J., says (p. 320 N. W. R.): "The stock which the plaintiff seeks to obtain in this action through the special enforcement of his executory contract with Ryan and his associates, is personal property. Rev. St. § 1751. It is also a kind of property customarily bought and sold in the market like grain, lumber and numerous other commodities, and from its very nature has no peculiar special value other than its market value. The plaintiff has ascertained and stated such value. The case could not be different in principle were the subject matter of the controversy 1,000 bushels of wheat or 100,000 feet of pine boards, or any other quantity of a specified grade, instead of shares of stock in a street railroad company. In all such cases compensation in damages is considered and held to be an adequate remedy for the breach of a contract to sell or purchase, especially where no trust relation exists between the parties. Such relation did exist in Dousman v. Smelting Co., 40 Wis. 418, and Dous man was the equitable owner of the stock. No such relation exists here. The plaintiff never owned the stock in controversy, 'and never had any lien upon it. He dealt with Ryan and his associates at arm's length, and on equal terms. Neither is the solvency of the purchasing defendants questioned. The presumption is they are pecuniarily responsible for any judg ment for damages the plaintiff may recover against them for their failure to transfer the stock to him as they agreed. Under these circumstances the plaintiff has an adequate remedy at law unless it is destroyed or impaired by the facts that Ryan and the Fahnstocks reside in another state and have no property in this state." 2 Rothholtz v. Schwartz, 19 Atl. R. 312. It also appeared that the defendant had no property except the goods purchased. This would be an additional reason for decreeing performance, but the right in such a case exists independently of that. by compelling its delivery to the party entitled to the possession thereof.1 Interest in patent. Specific performance of an agreement to assign an interest in a patent may be decreed in a proper Personal contracts. A court of equity has enforced agreements not to carry on business within a certain distance or for a certain length of time. 3 For the custody of partnership books. 4 That the outgoing partner shall offer his interest in the business to his copartners before selling it to other persons. 5 Agreements not to divulge or make use of a trade secret. 6 Specific agreements. A court of equity will enforce specific performance of a personal contract, in most cases, where the legal remedy is inadequate. Such contracts, in regard to chattels, have been enforced to pay or discharge a mortgage, to insure property, to discharge a judgment in pursuance of a compromise, to indemnify the plaintiff, ante-nuptial agreement in regard to personal property for the support of the plaintiff,7 etc. Contracts for improvement, building, etc. As a general rule, contracts of this kind will not be specifically enforced, because the court cannot, through its ordinary instrumentalities carry into effect its decree.8 There are some exceptions to this rule, however, as where the defendant has covenanted to make erections or improvements on his own land for the benefit of the plaintiff as the owner of adjoining property, and who has an interest in such improvements or erections made.9 1 Henderson v. Johns, 22 Pac. R. 461; Williams v. Carpenter, 24 Id. 558. Blackmer v. Stone, 51 Ark. 489. 3 Whittaker v. Howe, 3 Beav. 383; Turner v. Major, 3 Giff. 442. And see Coates v. Coates, 6 Madd. 287, and Williams v. Williams, 1 Wils. Ch. 473, note. 4 Lingen v. Simpson, 1 Sim. & Ster. 600. Homfray. v. Fothergill, 1 Eq. 567. 6 Morison v. Moat, 9 Ha. 241. 9 Stuyvesant v. Mayor, 11 Paige, 414. That is, the premises should be used for the purposes agreed upon, and no other. It is said (pp. 429, 430): “The bill states that the lands granted for a public square have never been inclosed or improved in any manner whatever down to the time of filing of such bill, and that individuals have been permitted to occupy parts of such lands with shanties and pigsties, although, as the bill alleges, the lands granted for Stuyvesant square, still remain in the hands of the corporation under the conveyance from the Contracts to use premises for a particular business. Where a lessee covenants for a particular use of the demised premises, a court of equity will restrict him to that use, without any irreparable or even substantial injury being shown from a breach of the agreement as where it was provided in the lease that the store should be occupied for the regular dry goods jobbing business, and no other business, the lessee, without the consent of the lessor, cannot carry on in such store the business of an auctioneer. 1 Contract for personal service. Specific performance will not be granted to carry into effect a contract for personal service. There are cases in which a court will control the personal conduct of the party by an injunction, and thus indirectly compel him to render a personal service, or to do some personal act, as where the defendant had contracted to sing at the theater of the plaintiff for a specified time, and not to sing at any other theater during the same period, but, in violation of complainant. This is clearly such an injury to the complainant in reference to his adjacent property as will authorize this court to decree a specific performance of the covenant that the premises shall be used for the purpose of a public square exclusively, and, in such decree, to require these defendants to remove these nuisances and to keep off all intruders upon the premises, whose occupation of any parts thereof is inconsistent with the purposes for which the lands were granted. Although the permitting of such a use of the premises involves a forfeiture of the grant, in case the complainant thinks proper to enforce the forfeiture for this breach of the condition upon which the lands were granted, he is not bound to claim the forfeiture, but may resort to his suit to compel a specific performance of this covenant." 1 Stewart v. Winters, 4 Sandf. Ch. 628; Dodge v. Lambert, 2 Bos. 570; Brouwer v. Jones, 23 Barb. 153; DeForest v. Byrne, I Hilton, 43. In Stewart v. Winters, the Vice-Chancellor says: "The owner of land, selling or leasing it, may insist upon just such covenants as he pleases, touching the use and mode of sons. her agreement, she made an engagement at another theater and was enjoined from fulfilling the second engagement. 1 1 Enforcing awards. An award is the fruit of the agreement of submission. If, therefore, it provides that certain acts within the scope of the arbitration, as the execution of a conveyance shall be done, the court may enforce the same. 2 If, however, the award simply directs the payment of money, the remedy is an action to recover the money. ? TRADE-MARKS. The question in such cases is not whether the plaintiff was the original inventor or proprietor of the article made by him, and upon which he puts his trade-mark, nor whether the article made and sold by the defendant under the plaintiff's trademark is an article of the same quality or value. But relief is granted upon the ground that the plaintiff has a valuable interest in the good will of his trade or business, and that having appropriated to himself a particular label, or sign, or trade-mark, indicating that the article is manufactured or sold by him or by his authority, or that he carries on business at a particular place, he is entitled to protection against any person who attempts to pirate upon the good will of the plaintiff's friends or customers, or of the patrons of his trade or business, by using his trade-mark without his authority or consent. 4 The principle is extended to the publication of a newspaper, and is general in its application. If a trade-mark is intended to be and 1 1 Lumley v. Wagner, 13 Eng. L. & E. 257; I De Gex. M. & G. 604. The chancellor says: "I have not the means of compelling her to sing, but she has no cause of complaint if I compel her to abstain from the commission of an act which she has bound herself not to do, and thus possibly cause her to fulfill her engagement." See also, for an able review of this question, Port Clinton, etc., Co. v. C. & T. R. Co., 13 O. S. 544. is of such character as to mislead the public, the courts will not protect it.1 Names not a subject of trade-marks, when. A person cannot use his own name as a trade-mark to the exclusion of the same use of it by another person of the same name, where the name of the latter is not intended to deceive or defraud. 2 Neither can a person apply the name of a state or a district of country, so as to obtain the exclusive right to the appellation; but where a manufacturer of goods has used for many years as a trade-mark two geographical names, as Louisville and Willoughby Lake, he will be protected as against a person who does not carry on business in the districts so indicated. 4 The plaintiff in his petition for an injunction, may also allege and pray for damages, and in case the injunction is sustained recover the same in that action. 99 66 Descriptive words cannot be used for a trade-mark. The words "Goodyear Rubber Company, Goodyear Rubber Manufacturing Co.," and other similar terms, being descriptive of a well-known class of goods produced by the process known as Goodyear's invention, cannot be exclusively appropriated as a trade-mark. 5 So the words "international banking" in International Banking Co., are descriptive of the character of the business, and cannot be used as a trade-mark. 6 And the words "Tycoon" as applied to certain kinds of tea, where it 1 In Perry v. Truefitt, 6 Beav. 66, the Master of the Rolls said: "A man is not to sell his own goods under the pretense that they are the goods of another man; he cannot be permitted to practice such deception nor to use the means that contribute to that end. He cannot, therefore, be allowed to use names, marks, letters, or indicia by which he may induce purchasers to believe that the goods which he is selling are the manufactures of another person.' Lee v. Haley, L. R. 5 Ch. App. 155; Van Sant. Pl. 447. 2 Gilman v. Hunnewell, 122 Mass. 139; Wolfe v. Burke, 7 Lans. 151; S. C., 56 N. Y. 115; Burgess v. Burgess, 3 De G. M. & G. 896; S. C., 22 Law. J. (U. S.) Ch. 675; 17 Eng. L. & Eq., 257; Lazenby v. White, L. J. (U. S.) Ch. 354; Hallett v. Cumston, 110 Mass. 29; 6 Wait's Actions & Defenses, 26. 3 Delaware & Hudson Canal Co. v. Clark, 13 Wall. 311; Glendon Iron Co. v. Uhler, 75 Penn. St. 467; 15 Am. Rep. 499; Blackwell v. Wright, 73 N. C. 310; Neb. Loan, etc., Co. v. Nine, 27 Neb. 507. 4 Pike Mnfg. Co. v. Cleveland Stone Co., 35 Fed. R. 896. 5 Goodyear's Manfg. Co. v. Goodyear's Rubber Co., 128 U. S. 598. 6 Koehler v. Sanders, 48 Hun, 48. |