involves an agreement not to perform at any other during that time. According to the true spirit of such an agreement, the implication precluding the defendant from acting at any other theater during the period for which he has agreed to act for the plaintiff follows as inevitably and logically as if it was expressed. So that, according to all the authorities, where one contracts to render personal service to another which requires special merit or qualifications in the professional worker, and in case of default the same service is not easily obtained from others, although the court will not interfere to enforce the specific performance of the whole contract, yet it will exert its preventive power to restrain its breach. While it is true that the court cannot enforce the affirmative part of such contract, and compel the defendant to act or perform, it can enjoin its breach, and compel him to abstain from acting elsewhere than at the plaintiff's theater. The principle upon which this doctrine rests is, that contracts for such services are individual and peculiar, because of their special merit or unique character, and the inadequacy of the remedy at law to compensate for their breach in damages. "Where," says Professor Pomeroy, "a contract stipulates for a special, unique, or extraordinary personal service or acts, or for such services or acts to be rendered or done by a person having special, unique, and extraordinary qualifications, as, for example, by an eminent actor, singer, artist, and the like, it is plain that the remedy at law of damages for its breach might be wholly inadequate, since no amount of money recovered by the plaintiff might enable him to obtain the same or the same kind of services or acts elsewhere, or by employing any other person." Pomeroy's Eq. Jur., sec. 1343. Damages for a breach of such contracts are not only difficult to ascertain, but cannot, with any certainty, be estimated; nor could the plaintiff procure, by means of any damages, the same services in the labor market, as in case of an ordinary contract of employment between an artisan, a laborer, or a clerk, and their employer.

It results, then, that if the services contracted for by the plaintiff to be rendered by the defendants were unique or extraordinary, involving such special merit or qualifications in them as to make such services distinctly personal and peculiar, so that in case of a default by them the same or like services could not be easily procured, nor be compensated in damages, the court would be warranted in applying its preventive jurisdiction and granting relief; but otherwise, or denied, if such

services were ordinary, and without special merit, and such as could be readily supplied or obtained from others without much difficulty or expense. But the present case is far from being one of such character as falls under the principle of the authorities in which the preventive remedy by injunction has been allowed. There is absolutely nothing in the evidence to show that the performances of the defendants were unique or of any special merit. The plaintiff himself will not even admit that they are; while others say the performances were "great," "pretty good," "do a fair act," etc.; and others, that their performances were merely that of the ordinary acrobat, and that there would be no trouble in supplying their places, or, as one of a good deal of professional experience says, "in getting a thousand to do just as good variety business."

Indeed, according to our view of the evidence, the plaintiff fails to make a case within the principle in which equity allows relief for a breach of contract for personal services, and the court below committed no error in dismissing the bill.

CONTRACTS BETWEEN ACTORS AND THEATRICAL MANAGERS, their effect and enforcement: Note to McCrea v. Marsh, 71 Am. Dec. 750, 751.

FARQUAR V. CITY OF ROSEBurg.

[18 OREGON, 271.]

MUNICIPAL CORPORATIONS-LIABILITY FOR DEFECTS IN STREETS. — When city by its charter is under obligation to keep the streets and highways within its limits in repair, and in a safe and convenient condition for travel, it is liable in damages to one who is injured by reason of its neglect of such duty.

L. F. Mosher and C. A. Sehlbrede, for the appellant.

Lane and Lane, and Hamilton and Hamilton, for the respondent.

LORD, J. This was an action to recover damages for injuries sustained by the plaintiff on account of an excavation which the defendant suffered to remain open without proper protection, etc., and of which it had timely notice, etc. The answer denied all the allegations of the complaint, and alleged separately: "That whatever injuries plaintiff sustained at said time, if any, were caused by the negligence and carelessness and fault of the plaintiff himself, in carelessly and negligently driving down the bank of the South Umpqua River, situate in

Douglas County, Oregon." The reply put in issue this, and alleged that the injuries complained of occurred, as alleged, within the corporate limits of said city, and at a point where Oak Street approaches the South Umpqua River. Upon a trial by jury a verdict was rendered in favor of the defendant, and upon which a judgment was rendered, from which this appeal has been taken. The error alleged was in the refusal of the trial court to give a certain instruction asked by the plaintiff, to which we shall presently refer.

The bill of exceptions makes the following statements of facts: "The plaintiff, to sustain the allegation on his part, gave evidence on his own behalf, tending to prove that on the ninth day of July, 1888, the plaintiff was injured by being precipitated into a deep and dangerous excavation in Oak Street, within the corporate limits of the city of Roseburg, in Douglas County, Oregon; that he sustained injuries thereby, and was damaged in the sum of one thousand dollars; that by the negligence of said defendant, said excavation was allowed to remain open and unguarded, and that the said city had notice of the dangerous condition of said street, and that through the carelessness of said defendant, in so allowing said street to remain in said dangerous condition, the plaintiff was so precipitated into said excavation and injured as aforesaid." There was evidence, also, of other witnesses tending to show the dangerous condition of said street, as well as that the accident did occur, and that the plaintiff was severely injured by reason of said defect, and that the defendant had notice of the same. The defendant, in order to defeat the claim of plaintiff, introduced evidence tending to show that no dangerous defect existed; that the place where said accident occurred was not in any street of the city, but in a county road, or open way, in said city, connecting with and forming an extension to said Oak Street.

And now comes the instruction asked for, and which the court refused: "If this locality was a public highway at the date of the charter of the city, the acceptance of the charter imposed upon the city the duty and obligations which would arise from any street dedicated the city, so far as to keep it in repair." It is not disputed but that the place where the injury occurred, whether it be a street or highway, was within the corporate limits of the city; but the contention is, that a different duty prevails, as it may be considered one or the other. That might be true in some cases, but the record before us

does not present that state of facts which makes the distinction. It was argued that the portion of the highway where the accident happened had been vacated, but if this was so it was a matter of defense, and is outside of the record. There was evidence, however, tending to show that the place alleged was not in any street of the city, but a county road, or open way, in said city, connecting with and forming an extension of Oak Street. But this would make no difference in the liability or duty to keep it in repair if the act of incorporation devolved that duty upon the city, for, as the court said in Paine v. Brockton, 138 Mass. 568: "But if one public way enters into another, it is the duty of a city or town to keep the entrances in repair, so that they may be safe and convenient for travelers, because the entrances are a portion of the public way used by travelers." Here the instruction asked does not touch all the duties and obligations which might arise in respect to dedicated streets, but confines it simply to the duty of repair; and in this particular the claim is, that it is the duty of the city, whether it be a street or highway within the corporate limits over which it has jurisdiction, to keep it in repair, in order that it may be safe and convenient for travel.

The charter of the city provides, among other things, that said city shall have power to grade, macadamize, plank, or otherwise improve and keep in repair streets, highways, alleys, cross-walks, etc. The omission of duty alleged was the failure to keep the street or highway in repair, and in this regard the duty imposed by the charter does not differ as to streets or highways, but is the same. And if the locality was a public highway when it was included within the corporate limits, although it may have retained its character as a highway, yet it became the duty of the city to keep it in repair, so that it might be safe and convenient for travel. Where the care and superintendence of streets, alleys, and highways, the reg ulation of grades, the opening and vacation of streets, devolve upon a municipality, liability follows a neglect of duty to keep them in repair.

By many authorities these things are said to be peculiarly municipal duties, and especially is this so when included in the corporate limits, and the duty imposed by charter; for what other power could more judiciously control the matter than the municipality of the immediate locality where the work is to be done? It is elementary law that one who is traveling along a highway, and is injured, either in his per

son cr his property, as the result of defects in the highway, can recover all the damage suffered by him from the municipality whose duty it was to keep the highway in repair, and who has neglected to that duty. The charter imposes this duty upon the city, alike upon streets or highways within its limits, and consequently, upon the case presented by this record, it was the duty of the city to keep the highway where the accident occurred in repair, and safe and convenient for travel. It was argued that there was nothing to show that the city had ever accepted the highway, but it was a sufficient acceptance of the same to include it with the corporate limits of the city: City of Goshen v. Myers, 119 Ind. 200. At least that is the result to which we must come when the highway is within the corporate limits, and the charter provides to keep it in repair, in order that such highway may be reasonably safe for travel.

As the case stands, we think it was error to refuse the instruction, and the judgment must be reversed, and a new trial ordered.

THE CASE of McAllister v. City of Albany, 18 Or. 426, was an action brought to recover damages for injuries sustained by plaintiff by reason of his having driven his team into a ditch across a certain street of the city. This ditch was dug in the construction of a sewer, and was left open without lights or guards. The main defense relied upon by the city was, that the act which caused the injury was occasioned by one Walter East, to whom the city had let the contract for the construction of the sewer, and that, under the terms of his contract, he was an independent contractor, with the exclusive control of digging the ditch and of the laborers engaged thereon, and that for this reason plaintiff ought not to be allowed to maintain his action against the city. The court, in speaking of the principles of law applicable to such a state of facts, said: "No rule of law is better settled than that one who contracts with another for the performance of certain work is not liable for injuries produced to third persons by the negligence of the latter in the performance of that work, when the relation of master and servant does not exist. Whether the rule applies to a municipal corporation, owing a duty to the public to keep its streets safe for travel, is a question which has been much discussed, and upon which there is some diversity of judicial opinion. To the general rule as stated, the cases indicate that there are two exceptions: 1. Where the work is intrinsically dangerous to the public, however skillfully performed, and the injury results directly from the work, in which case the liability cannot be avoided by contract, either by individuals or munici palities; and 2. Where the law devolves the duty upon a municipal corporation to keep its streets in a safe condition for travel; in such case the authorities are not agreed, but, in the later and better-considered cases, hold that the municipality is liable to persons for injuries arising from neglect to keep proper lights and guards around a ditch or excavation which it has caused to be made in the streets, and that such liability