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3 U.N.B.L. Sch. J. 19 (1950)
In Re Wait

handle is hein.journals/unblj3 and id is 21 raw text is: LAV SCHOOL JOURNAL where the Courts have already done so: and that even the presence of an express negative stipulation will not be found a sufficient ground for jurisdiction unless the contract is of a kind of which specific performance can be granted. In other words, it is probable that the Court will here- after, except so far as it may be found by existing authorities, consider whether the contract in respect of which the injunction is sought is or is not of a kind fit for specific performance; that, if it be, the Court will tend to restrain acts inconsistent with it, whether there be negative words or not: that if it be not of a kind fit for specific performance, no injunction will be granted, even though negative words may be present. This seems to be the conclusion of Hallett J., (i.e., that he is bound by existing authorities) in his decision of Marco Productions Ltd. v. Pegolo (1945) 1 KB 111. Here was a contract for personal services. The defendant agreed to act for the plaintiff company for a certain period of fixed terms. The contract contained a negative covenant stating that defendant would not act elsewhere without consent of the plaintiff during the period of engagement. In breach of that covenant the defendant acted in another locality. This was an action by the plaintiffs for an injunction restraining the breach of that covenant. Following Lumley v. Wagner, the injunction was granted, for as Hallett J. said: The agree- ment to perform for the plaintiff, and during that time not to perform for anyone else is in effect one contract. The affirmative covenant by the defendant and the negative stipulations on the part to abstain from the commission of any act which will break in upon their affirmative covenant, are covenants which are ancillary and concurrent, and operate with each other. Professor Stevens has pointed out (*) that there are three strong reasons against the direct enforcement of contracts of service; firstly, the impossibility of continual supervision by the Court; secondly, the invidiousness of keeping persons tied to each other in business relations when the tie has become odious, and thirdly, and chiefly, the undesir- ability of turning a contract of service into a status of servitude. However, in Lumley v. Wagner these objections are more apparent than real. For instance, regarding the status of servitude, Miss Wagner might, without in any way contravening the injunction, have obtained other employment, quite outside the singing profession, at a salary which might keep her in ordinary comfort, though not in accordance with her usual standard of luxury. (*) See 6 Cornell Law Quarterly, 244. IN RE WAIT The dispute in In Re Wait as to whether goods, which were a definite part of a definite whole, should be called specific goods raised a double question. Were they specific or ascertained within the meaning of the Sale of Goods Act Section 52 or did the circumstances of the case create equitable rights such as a lien or assignment of the goods? There was a contract for delivery by A to B of 1000 tons of Western White Wheat. B entered into a sub-contract with C for 500 tons out of this shipment. B became bankrupt. The trustees in bankruptcy claimed the 1000 ton shipment to pay the creditors. C claims specific performance of the sub-.contract under S 52 of the Sale of Goods Act which permits the granting of specific performance in any action for breach of a contract to deliver 'specific' or 'ascertained'

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