vol. 42. valulil,it WIlS rightly held ,in Elkhart Bank v. Arm8tr()ng, cited above, that, where it frQOl the evidence that thereqlittance was by agree. ment reCeiye!i llsqnsll"credited as cash, andsubj.ectto check or to draft, tile fact thattlw ,paper remitted was indorsed "for collection," and the further fact that it was the understanding that,.if not paid, the amount be charged back to the sender, did not"change the character of ',the ,transaction, although it did provide a short mode of adjustment between the parties. But here there was no agreement such as was shown that case. On the other hand, not only was the indorsement "for coUection," but the credit by the Fidelity Bank was, in terms, "subject to payment." This was clearly a provisional credit only. The title did not pass; and the proceeds of the collections which were received, not by the Fidelity Bank, but, after its failure, by the receiver, must be treated as trust funds in his hands, subject to the claim of the complainant, to whom they belong. 'rhedecree will be in favor of the complainant, for the payment by the receiver of the sum of $3,336.40, the proceeds of collections upon remittances made by thecon1plainant to the Fidelity Bank, which were not received by the bank, but came into the receiver's hands after the failure of the bank. As to the residue, to-wit, the sum of $2,177.15, the, decree will find that the complainant is a general creditor of the Fidelity ;Bank, and as such entitled to dividends. The costs will be taxed to the defendant.
METROPOLITA,N ,EXHIBITION
Co. v.
EWING.
(Oirauit Oourt. S. D. New York. March 25,1890.) CoNTRACT-INTERPRETATION-INJUNCTION.
The contract with defendant for his services as a base-ball player gave plaintiff, a association, the "right to reserve,"bim for tbe next season on condition that lie should not be reserved at a salarv less than for the current season without his consent, and that he should be one o{l1ot more than 14 reserved. Held, (1) the term" rigbt to reserve" is ambiguous, and does not iI;oply a contract by the player to devote his services exclusively to the association during the ensuing season, without the aid of ext\'insic evidence to show that it has a recognized meaning in the nomenclature of the business to which the contract relates; (2) that, in order to ascertain the meaning of such a 'term, it, is competent to do so by reference to other parts of the contract, and to other contracts made by the parties in respect to the same SUbject-matter on previous occasions; (8) that interpreting the contract by resorting to the proper sources of explanation the term is meant to give a prior and exclusive right in favor of one base-ball association as against other base-ball associations to contract with a player for bis services for another season, and the contraet is merely an exclusive right to make a contract upon terms to be agreed upOIl, by the parties; (4) that although courts of equity will'prevent by injunction the of contracts for professional services in some cases in Which they will not decree specific performance, they wili not undertake to make contracts for parties, or to enforce in any way those as to the terms of which the parties have not arrived at'a definite understanding; (5) altbough preliminary relief will not be granted in a case in which it. is doubtful whether the plaintiff will be finally successfnl. yet, where the .questions are such that they can be as fnlly considered and as sa.fely decided upon a motion. fora preliminary injunction as at the final hearing, it is the duty of the court to decide them upon such a motion when such an injunotion iii essential to the protection of the plaintiff.
METROPOLITAN EXHIBITION 00. t1. EWING.
199
In Equity. On bill for injunction. Joseph P. Ohoate and George F. Duysters, for plaintiff. Henry Bacon, for defendant. W AI,LACE, J. This action is brought to restrain a threatened breach of contract for the performance of personal services which require special aptitude, skill, and experience. It is a case in which an action at law would not afford the plaintiff an adequate remedy for the breach, and in . which the power of the court should be exercised by preventive interposition, if it is found that the contract is such as the plaintiff claims it to be. The circumstances are such that, unless a preliminary injunction is granted, the plaintiff will obtain no effectual remedy, because, before the cause can be brought to final hearing, the time will have passed within which the relief sought would be practically useful, and, if it be then adjudged that the plaintiff is entitled to a: permanent injunction, the judgment will be declaratory merely. Although preliminary relief is not to be granted in a case in which it is doubtful whether the plaintiff will be finally successful, yet, where the questions are such that they can be fully considered and as safely decided upon a motion for a preliminary injunction as at final hearing, it is the duty of the court to consider and determine them, and not defer the party invoking its assistance to a time when a decree, if awarded, would be too late. The contract upon which the plaintiff founds its claim for relief is in form between the New York Base-Ball Club as party of the first part, and the defendant as party of the second part; but there is no reason to doubt that the New York Base-Ball Club was the agent of the plaintiff in entering into the contract, that the plaintiff is the real vrincipal, that the contract was intended to inure for the benefit of the plaintiff, and that the plaintiff is entitled to enforce it against the defendant to the extent that the New York Base-Ball Club could do so. The doctrine is now generally recognized that, while a court of equity will not ordinarily attempt to enforce contracts which cannot be carried out by the machinery of a court, like that involved in the present case, it may nevertheless practically accomplish the same end by enjoining the breach of a negative promise, and this power will be exercised whenever the contract is one of which the court would direct specific performance, if it could practically compel its observance by the party refusing to perform through a decree for specific performance. It is indispensable, where the contract does not relate to realty, that it be one for the breach of which damages would not afford an adequate compensation to the plaintiff. It must be one in which the plaintiff comes into court with clean hands, and- which is not so oppressive as to render it unjust to the defendant to enforce it. It must be one in which there are mutual promises, or which is founded on a sufficient consideration. It must be one the terms of which are certain, and in respect to which the minds of the parties have distinctly met, so that there can be no misunderstanding of their rights and obligations. The contract is executed as of the date of April 29, 1889. It is a.
FEDERAL REPOltTER,
vol. 42.
formal document, consisting of 20 articles, by which the New York BaseBall Club employs the defendant, and the defendant undertakes to perform professional services as a base-ball player for the club for the season (specified in article 2) beginning April 1, 1889, and ending October 31, 1889. Article 20 provides that the salary to be paid the defendant shall be $2,000, payable semi-monthly.' Among other things, the contract prQvides by different articles that the club may at any time terminate the contract on 10 dayf:j' notice to the defendant, whereupon the obligationsof both parties are to cease; that the club shall provide the defendant while" abroad" with proper board and lodging, and pay all necessary traveling expenses; that if the ,defendant, during the term of his employment, be guilty of any excessive indulgence in liquor, or of gambling, or of insubordination, he shall be liable to certain specified penalties; and that, if the club ceases to be a member of the National League of Professional Base-Ball Clubs, either compulsorily or voluntarily, the "defendant shall, if the right of reservation be transferred" by the club to any other club, receive from that club at least the same amount in salary that he receives by the present contract. It contains, also, the following provision: "Article 18. It is further understood and agreed that the party of the first part sluill have the right to ·reserve' the said party of the second part for the season next ensuing the term mpntioned in paragraph 2, herein provided, and that right and privilege is hereby accorded to said party of the first part i1pon the follOWing conditions, which are to be taken and construed as conditions' precedent to the exercise of such extraordinary rights or pl'i vileges, viz.: (1) That the said party of the second part shall not be reserved at a salary less tban that mentioned in the 20th paragraph herein, e.xcept by the consent of the party of the second part; (2) that the said party of the second part, if he. be reserved by the said party of the first part for the next ensuing season, shall not be one of more than 14 players then under contract,-that is, that the right of reservation shall be limited to that number of players, and no more." The plaintiff alleges that the defendant was one of 14 players, and no more, so reserved under said contract; that Oil the 22d day of October, 1889, plaintiff exercised its option to reserve the defendant for the season of 1890 by giving the defendant due and timely notice, in writing, of its intention to do so; and that, notwithstanding the exercise of this option, the defendant has engaged his services for the season of 1890 to another organization, to act for it as a base-ball player during that season. The plaintiff insists that, by the terms of the contract, it is entitled to the services of the defendant as a base-ball player for the season of 1890 upon the terms and conditions of the contract for the season of 1889, except the condition giving a right to reserve him for a subsequent season. The case turns upon the meaning and effect of the clause and contract which gives the club the right to reserve the defendant for the season next ensuing. It is plain enough that the option is a right of reservation for the next ensuing season only, -the season ensuing the term mentioned in article 2,-and does not extend beyond the term from April 1,
METROPOLITAN EXHIBITION CO. tl. EWING.
201
1890, to October 31, 1890. It is equally plain that the salary for the ensuing season is to be the same ,as that for the season of 1889, unless the parties mutually consent to a change. But what is the character of the option which the plaintiff is permitted to exercise? What is the right to "reserve" the defendant? If it is the right to retain and have his services as a base-ball player for the season of 1890, when is the right of election to be manifested, and upon what terms are these services to be rendered? Can the club wait until April 1, 1890, before it manifests its intention to exercise the option? Is the club to pay the defendant's board and lodging while he is "a!?road," serving the club, during the season of 1890? Can the club discharge him at any time during that season on 10 days' notice? Are the Penalties for intoxication, gambling, or insubordination enforceable during the season of 1890? In short, does the contract em body the definite understanding of the parties to it in respect to their reciprocal rights and obligations after the season of 1889 shall have ended? If the term, "the right to reserve," has no defined meaning. and there were no extrinsic sources by which to ascertain the sense in which it is used by the parties, it would be an ambiguous phrase. As applied to a contract for personal services, the right to reserve would convey a very unintelligible conception of the conditions and incidents of the service to be rendered or enjoyed. A contract by which one party agrees, for an equivalent, to reserve himself for another for a stated period, or to reserve himself as a lawyer or doctor or artist or laborer for a specified term, would very inadequately express a to devote his professional or manual services eXclusively to the other during that period; and the promise of a base-ball player to reserve himself for a particular club for a given season would hardly, without more, convey any definite meaning of the understanding of the parties. It certainly would not bind him to submit to any special rules 01' regulations respeQting the performance of his services not expressly consented to, or not to be necessarily implied from the nature of the employment and the situation of the contracting parties. If it had been the meaning of the contract to allow the club to renew the engagement of the defendant for a second season upon the same conditions as those for the first season, that intention could have been easily and unequivocally expressed. As it is, it is left wholly to implication, unless the "right to reserve" is a term having a defined and specific signification. This ambiguity suggests such grave doubt as to the meaning of the clause that in two adjudged cases, in which it has been considered by the courts, the judges have thought it too indefinite to be enforceable. In Exhibition Co. v. Ward, 9 N. Y. Supp. 779, (in the supreme court of tbis state,) Mr. Justice O'BRIEN was of the opinion that the failure to provide for the terms and conditions of the contract for the second season rendered the clause so indefinite and uncertain that it could not be the basis of equitable relief, or that it meant that every player is bound for the ensuing season upon the same terms and conditions as those of the first season, including the signing of a new contract containing the option to reserve. In Philadelphw Ball Club v. Hallman, in the court of common pleas of Philadelphia, J udge