Nessle v. Reese , 29 How. Pr. 382 ( 1865 )

Miller, J.

I think that this' action cannot be maintained. The agreement for the sale of the secret for compounding and applying porcelain enamel, upon which the plaintiffs’ action is founded, contains a covenant that the defendants, Reese and wife, shall keep the secret, under a forfeiture of five thousand dollars, settled upon as liquidated damages, to be paid for every failure to do so.

The principle upon which coui’ts of equity decree a specific peiformanee of contracts is, because damages at law may not. in a particular case, afford a complete remedy, and because of the difficulty of ascertaining the damages. ( Willard’s Eq. Jur., 274,278.)

In the case at bar, the parties, by fixing the amount of damages in the agreement, have provided a complete and perfect remedy, and there is no difficulty in determining what the damages are.

The damages being thus settled and liquidated, I think that the plaintiffs should be left to pursue their remedy by an action upon the agreement for damages, and are not entitled to an injunction restraining the defendants, and to equitable relief. (See Hoffman’s Provisional Remedies, 215; Barnes a. McAllister, 18 How. Pr., 534; Vincent a. King, 13 Ib., 234.)

Nor does it, in my opinion, alter the case that the defendants, Reese and wife, have no property. That fact alone cannot disturb the general principle, that in case of a sum settled as liquidated damages, the parties are not usually entitled to an injunction, but must invoke their remedy at law for damages, where there is a violation of the contract. The purchaser here could have provided for such a contingency by requiring security, and it is his own fault that he has failed to do so.

These views necessarily lead to the conclusion, that the complaint must be dismissed and that the defendants are entitled to judgment.