and by them the judicial discretion of the court must be guided. Federal Oil Co. v. Western Oil Co., 121 Fed. 674, 676, 57 C. C. A. 428. Specific performance will not ordinarily be decreed in favor of a party to a contract against whom the court cannot efficiently compel its performance. The obligation and the remedy under the contract must be mutual. 2 Beach on Contracts, 885, and note 1; Marble Co. v. Ripley, 10 Wall. 339, 358, 19 L. Ed. 955; Fry on Specific Performance of Contracts (3d Ed.) §§ 440, 441; Welty v. Jacobs, 171 Ill. 624, 49 N. E. 723, 40 L. R. A. 98; Lancaster v. Roberts, 144 Ill. 213, 223, 33 N. E. 27; Chicago Municipal Gas Light & Fuel Co. v. Town of Lake, 130 Ill. 42, 60, 22 N. E. 616; Ogden v. Fossick, 32 L. J. Eq. (N. S.) 73; Buck v. Smith, 29 Mich. 166, 18 Am. Rep. 84; Richmond v. R. R. Co., 33 Iowa, 422. There are exceptions to this rule, as where the specific performance of the complainant's covenants which are not susceptible to enforcement by the court has been completed before he institutes his suit. Burnell v. Bradbury, 67 Kan. 762, 764, 74 Pac. 279; Bigler v. Baker, 40 Neb. 325, 333, 334, 58 N. W. 1026, 24 L. R. A. 255; Green v. Richards, 23 N. J. Eq. 32, 35; Boyd v. Brown, 47 W. Va. 238, 249, 34 S. E. 907. But in the case at bar the complainants have not substantially performed their part of the contract, nor can they do so for more than four years to come. There are authorities in which courts have sought and found some reason or excuse in the particular facts of cases to take them out of the rule, as in Jones v. Williams, 139 Mo. 1, 92, 39 S. W. 486, 40 S. W. 353, 37 L. R. A. 682, 61 Am. St. Rep. 436, and Joy v. St. Louis, 138 U. S. 1, 50, 11 Sup. Ct. 243, 34 L. Ed. 843. But it is both unreasonable and unjust for a court of equity to constrain one party to an agreement to specifically perform it when it is without power to compel the other party to do so and he may escape its performance at will, and the general practice as well as the weight of authority sustains the rule.

The amusement company agreed by the fourth, seventh, eighteenth, and nineteenth paragraphs of the contract that it would supervise and control without charge, and that Woodward should manage for $50 per week, the Shubert Theater, subject to the orders and directions of the Shuberts, that Woodward would approve the bookings of the theater, and that its funds should be deposited to the credit of the Shuberts' account by a treasurer appointed by them. Neither the amusement company nor the court, however, has the power to efficiently compel Woodward to do any of the things here required to be done by his personal services, because he is not a party to the contract, he has not agreed to do as the contract recites, and because, if he had signed and agreed, the examination and approval of the bookings and the suitable management of the theater are personal acts whose rightful performance requires special knowledge and experience in the business of operating theaters, and the exercise of skill, discretion, and cultivated. judgment, and in the end rests wholly in the will of Woodward. Courts of equity have no efficient means, and therefore will not ordinarily attempt, to constrain an individual to perform personal acts which require special knowledge and experience and the exercise of

skill, discretion, and cultivated judgment. Pomeroy on Contracts, SS 307, 310; Marble Co. v. Ripley, 10 Wall, 339, 359, 19 L. Ed. 955; 26 American & English Encycl. of Law (2d Ed.) p. 95.

It is true that where the performance of negative covenants, express or implied, will tend to constrain the performance of positive covenants for personal services, an injunction may sometimes law fully issue for that purpose, but neither the amusement company nor Woodward is subject to any negative covenant in this case, whose performance would tend to cause Woodward to approve suitable bookings and to disapprove those which are unsuitable, or to manage the theater wisely and well, and there are no efficient means by which a court of equity could compel him to do so.

Counsel argue that the contract of the amusement company was not that Woodward, the individual, but that Woodward, as its president, should manage the theater and approve the bookings; that these acts were not to be his personal acts, but those of the corporation, and that it may perform them by its agents. But the clear terms of the contract, the provision that the amusement company shall receive no compensation for its supervision, and that the Shuberts shall pay the individual Woodward $50 per week, conclusively negative this contention. There is no logical way of escape from the conclusion that there is a lack of mutuality of remedy upon this contract between the amusement company and the Shuberts, and that there is neither mutuality of obligation nor of remedy between Woodward and the Shuberts; and as it is impossible for a court of equity to so constrain the will of Woodward as to make him rightly exercise his will, his cultivated judgment, his skill, and his discretion in the specific performance of this contract, the court ought not to compel the defendants to perform it.

Again, the enforcement of the specific performance of the contract in hand will necessarily entail upon the courts through many years the supervision and direction of a continuous series of acts, many of which will present the question whether or not they accord with the contract, such as, what bookings should be approved or disapproved, how many and what persons should be employed to operate the theater, how the intricate details of the business of the theater should be conducted, how its operation should be advertised, and many other unforeseen issues which the complicated performance contemplated cannot fail to raise. It is conceded that a court of equity has ample power to determine all these questions and to conduct this business by its receiver, or master, and that it will sometimes enforce the performance of contracts where the performance involves more intricate details, or longer periods of time, where the other equities of the complainant in the case, or the public interest, are controlling. But in the absence of such public interest, or such controlling equities, or of clear evidence that irreparable injury will probably result to the complainant if it withholds the relief sought, a court of equity does not constrain, and it ought not to compel, the enforcement of the specific performance of a contract which cannot be consummated by a speedy, final decree, but which involves the supervision of a continuous series of acts which must extend through a long period of time and which will require the exercise of special knowledge, judgment, and experience. The brevity

of time and the duty of the court to other litigants praying the determination of their suits ordinarily forbid a court to assume unnecessarily so burdensome a task. Marble Co. v. Ripley, 10 Wall. 339, 359, 19 L. Ed. 955; Pomeroy on Contracts, § 312; Pullman Palace Car Co. v. Texas & Pacific Ry. Co. (C. C.) 11 Fed. 625; Texas & Pacific Ry. Co. v. Marshall, 136 U. S. 393, 10 Sup. Ct. 846, 34 L. Ed. 385; Port Clinton R. R. Co. v. Cleveland & Toledo R. R. Co., 13 Ohio St. 544.

The issue of an injunction, like the specific performance of a contract, rests in the judicial discretion of a court of equity. It is not a matter of right, and the application for it is addressed to the conscience of the chancellor. It is an indispensable condition of a decree for the specific performance of a contract and of the issue of an injunction against its breach that the moving party has not been guilty of a substantial violation of it himself. He who seeks equity must come into court with clean hands. Marble Company v. Ripley, 10 Wall. 339, 358, 19 L. Ed. 955; Taussig v. Corbin, 142 Fed. 660, 667, 73 C. C. A. 656, 663. Did the record in this case at the time the injunction was issued show that the complainants had complied with their stipulations contained in the contract? The seventh paragraph of the agreement is that the amusement company will take general supervision and control of both theaters and of the business in connection therewith, and that it will make no charges for its services in so doing. The fourth paragraph stipulates that Woodward is designated its representative at a salary of $50 per week, and that he is designated by the Shuberts as their representative at a like salary to be the general manager of the enterprises, "but said representative to be subject to direction and orders from the second party [the Shuberts] hereto." These two paragraphs must be read and construed together, because they are in the same contract and relate to the same subject. All their provisions must be harmonized and given effect if possible, but if there is any conflict between the sentence in quotation, which was written into the contract by the Shuberts after the writing was prepared by the amusement company, and the other provisions of the contract, the former must prevail, as that to which the especial attention of the parties was directed and as the expression of their final intent. Pike's Peak Hydro-Electric Co. v. Power & Mining Machinery Co. (C. C. A.) 165 Fed. 184. Thus read, the legal effect of these paragraphs is that the amusement company will supervise, control, and manage the Shubert Theater by means of the personal services of Woodward, subject to and in accordance with the directions and orders of the Shuberts. And this is the rational interpretation of the entire contract, for it is incredible that the Shuberts intended and agreed to part with all direction and control of their theater and of its business while they bound themselves to pay about $20,000 a year rent for it, guaranteed to book and play 30 weeks in each season therein under a penalty of $1,000 per week, and agreed. that the surplus funds derived from its operation should be paid into a general fund with the surplus from the Wood Theater, and that the profits and losses of both should be divided between the parties.

By the second paragraph of the contracts the Shuberts covenanted to cause their theater "to be carried on and conducted as a place of amusement where the highest price of admission should be $1 and the

lowest 25¢, according to the location of the seats," and the necessary legal effect of this provision was that they retained the right to fix the prices of admission within the limits there specified. They specified the prices within the contract limits after the contract had been signed, and notified Woodward that these prices must stand, but the latter disobeyed his direction and prescribed other prices.

Woodward asked permission of the Shuberts to change the midweek matinee at their theater from Wednesday to Thursday. They refused the permission and directed him to hold the matinees on Wednesdays, but he disobeyed their direction and made the matinee days Thursdays. In defiance of the direction of the Shuberts, he discharged the watchman and musical director whom they had employed for their theater, and hired other employés.

The eighth and the eighteenth paragraphs of the contract contain stipulations that the Shuberts should appoint a treasurer of their theater, to be under the supervision of the amusement company, which should not have the power to discharge him, and that all the funds of the theater should be deposited by this treasurer to the credit of the Shuberts' account, and that the surplus should be distributed at the end of the season. The effect of these provisions was that the treasurer appointed by the Shuberts was authorized to receive and to deposit the funds of the Shubert Theater to the credit of the Shuberts' account; that the Shuberts, the owners of this account, should themselves, by their treasurer or otherwise, pay the necessary expenses of the theater out of this fund, and at the end of the year pay the surplus into the general fund that was to be divided. The Shuberts appointed Mr. Miller the treasurer of their theater, and directed that he should receive and deposit all the funds of that theater, and should draw the checks and pay therewith the necessary expenses thereof after the bills therefor were approved by Mr. Woodward. But Mr. Woodward and the amusement company insisted that Woodward alone should determine and pay the expenses of the Shubert Theater, and that they would not permit him to divide this responsibility with Mr. Miller; and Mr. Woodward wrote to the Shuberts that "as long as I am manager of your theater in Kansas City, under the signed contracts, I shall at all times insist upon my right to sign all checks and handle the house along the same lines as I handle every other house with which I am connected." Thus it may be seen that the complainants had violated the contract between the parties before they commenced this suit. They did not come into the court with clean hands. After these violations of the orders of the Shuberts had been committed, they took possession of their theater, discharged some of the employés whom Woodward had hired, and, when Woodward personally appeared and claimed possession of and remained in the theater with the Shuberts, they discharged him as the manager of the theater for disobedience of their orders and insubordination. The complainants then applied to the state court in this suit for an injunction, and that court issued a temporary restraining order whereby the Shuberts were forbidden to interfere with the management, possession, or control of their theater by the complainants, and, under this order and the orders from which this

appeal was taken, the complainants have held the possession of the theater.

One of the principal purposes, and perhaps the main effect, of the orders granting and continuing the injunction, and of the order appointing Woodward manager of the Shubert Theater, is the prevention of the discharge of Woodward by the Shuberts and his maintenance in charge of the defendants' theater as their manager: Before this suit was commenced he had disobeyed the rightful orders of the defendants relative to the scale of prices for admission to the theater, to the hiring of employés, and to the midweek matinees, and relative to the control and disbursement of the fund derived from the theater, and the defendants had good cause to discharge him, and, even if they had no cause, injunction is not the proper remedy for his wrongful discharge. A court of equity is without power to compel Woodward to perform the duties of manager of this theater, because he has never made any agreement to perform them, and because the discharge of those duties requires the rendition of personal services which involve the exercise of cultivated judgment, taste, and experience, and, where a court is without power to compel an employé to serve, the general rule is that it may not enjoin his employers from discharging him. Mair v. Himalaya Tea Co., L. R. 1 Eq. Cas. 410, 415; Bainbridge v. Smith, 41 Chan. Div. 462, 474, 475; Davis v. Foreman, 3 Chancery, L. R. 1894, 654, 656; Pickering v. Bishop of Ely, 2 Younge & Collyer's Chancery, 249, 266; Coburn v. Cedar Valley Land & Cattle Co. (C. C.) 25 Fed. 791, 793.

In Stocker v. Brockelbank, 20 L. J. Eq. (N. S.) Cas. 401, 408, the complainant, a patentee, had granted to Brockelbank & Co. an exclusive license under his patent, and had covenanted to serve them as general manager of their business for 12 years; and they had agreed that he should have the general management of their business during that time, that they would pay him 40 per cent. of the net profits during the time, and a gross sum at its end. They discharged him during the time, and he applied for an injunction. The chancellor denied the application, and said:

"Is there any instance (I am not aware of any none has been cited; though my attention has been called at other times to questions of this nature. I do not recollect any) where it has been supposed that a contract of hiring and service could be made the subject of an application to this court, if the employer claimed the right to discharge his agent, or to dismiss his servant or his manager, or by whatever name the party to perform the service is to be denominated? I do not recollect any instance of any attempt on the part of a court of equity to compel the employer to retain the servant, agent, or manager, and not to forbear to leave him to his remedy at law for the breach of it. I know of no such case, and I should be surprised if that principle could be recognized by the court; for consider what the effect would be: How is it possible for an employer or an agent to go on in the intimate connection which such a contract is calculated to create? They are to be on the same premises, acting in the management of the same business in this case; and if there is mutual dissatisfaction, well or ill founded, it is perfectly clear that a management, conducted under such circumstances, must tend very much to the prejudice of the concern-in this case, I think, particularly."