[41] The original decision portrays an analytical condensation of the facts of record. From the predicate adopted the conclusion reached is logical. The difference of opinion here is not of fact but the application of the facts to the law. It is true that there is one of the Articles of the Code which treats with obligations to do or not to do and this in itself possibly caused confusion. Article 1926, R.C.C.
[42] My analysis of the record is that the obligation in the contract between Pennington and Drews is primarily an obligation not to do, and in substantiation of that, we quote from the statement of facts found on page 2 of the original opinion [La.Sup 49 So. 2d 7]:
[43] "Defendant was obligated never to purchase for his own account, and without plaintiff's consent, leases in any area that had been surveyed by use of the atomiscope; that he would never lend, sell, give away or otherwise demonstrate the instrument to any other person without procuring plaintiff's assent in writing; * * *.
[44] It was because of the above provisions, in part, that plaintiff put into the proposition something like $57,000.00. Plaintiff was, therefore, the benefactor, as far as this contract has gone, and the defendant the beneficiary.
[45] From the language above quoted, the contract is clearly the obligation not to do; being such, we, therefore, seek light for the application of facts to the law from the controlling Articles of the Revised Civil Code. Article 1929 reads:
[46] "If the obligation be not to do, the obligee may also demand that the obligor be restrained from doing anything in contravention of it, in cases where he proves an attempt to do the act covenanted against."
[47] This article gives the right to enjoin and in order to get the complete meaning of the law, we would have to go to Article 1928 of the Revised Civil Code, which reads:
[48] "The obligee may require that anything which has been done in violation of a contract, may be undone, if the nature of the cause will permit, and that things be restored to the situation in which they were before the act complained of was done, and the court may order this to be effected by its officers, or authorize the injured party to do it himself at the expense of the other, and may also add damages, if the justice of the case requireit."
[49] On a contract to do, this Article, in all probability, has no application, but on the contract not to do, damages may be added in addition to the injunction imposed, if the justice of the cause requires it.
[50] The original opinion very ably argues that the penalty clause is liquidated damages and when the district court applied these liquidated damages to the penalty clause, it was error to foreclose that court's judgment and limit the relief to be given to the plaintiff only to the injunction sought; since the record shows that this defendant has removed his person and his property (atomiscope) to another State, the relief granted merely of an injunction is such that the resulting general relief will be that of perpetual darkness and a state of judicial limbo.