On Rehearing.
Fenner, J.The correctness of our former opinion on the question of the legality of the contract of partnership herein involved is not called in question ; but, its legality being conceded, the point urged upon our notice is that, under our system, such a contract cannot be specifically enforced.
It is not denied that, under the Roman, as well as under the common law, obligations to do or not to do, arising from contracts, were enforced, not specifically, but only by way of damages. The maxim was, “ nemo potest prmeise cogi ad factum.'”
The like rule was expressly embodied in the Napoleon Code, of ■which Art. 1142 provides : “ Toute obligation de faire on de ne pas faire se résout en dommages et intéréts, en cas d'inexécution de la part du débiteur.”
Our own Code, however, contains the following provisions :
“ Art. 1926. On the breach of any obligations to do or not to do, the., obligee is entitled either to damages, or, in cases which permit it, to a specific performance of the contract, at his option, etc.”
“Art. 1927. In ordinary cases, the breach of such a-contract entitles the party aggrieved only to damages, but where this would be an inadequate compensation, and the party has the power of performing the *1127contract, lie may be constrained to specific performance by means prescribed in the laws which regulate the practice of the courts.”
“Art. 1929. If the obligation be not to do, the obligee may also demand that the obligor be restrained from doing anything in contraven-■ tion of it, in cases where he proves “an attempt to do the thing covenanted against.”
That these articles apply to contracts of partnership, as well as to other contracts, sufficiently appears from the generality of their terms, as well as from the provision of Art. 2803. The pretension that Art. 2862 is inconsistent with this position, is without foundation.
The mere reading of the Articles quoted refutes the major portion of the argument for rehearing, and establishes, beyond controversy, that, in proper eases, the Courts of this State may and should enforce specific performance of contracts by both mandatory and injunctive relief.
The reader of the Articles must be struck with the perfect similarity of the ground stated for this relief, viz: where damages “ would be an inadequate compensation,” to the main foundation o'f equity jurisdiction of-specific performance under the English law, viz: where the legal remedy (which is in damages) would be inadequate, 2 Story on Eq., $$ 717, 718; 1 Eonbl. Eq., Bk. 1, ch. 1; Fry on Spec. Perf., § 11,, etc.
In determining, therefore, what are proper cases for specific relief, the equity jurisprudence of England and this country may be instructively consulted. How far our Courts should follow that jurisprudence is a question to be determined in cases as they arise. We have no occasion now to say more than that, in administering such relief, in cases of obligations to do, we should be, guided by that respect for individual liberty which is an ennobling characteristic of our remedial system, so far as obligations not to do are concerned, the remedy by injunction is explicitly pointed out by Art. 1929, in cases properly covered thereby.
To come now to the instant case.
The contract, of which performance is sought, contains obligations both to do and not to do. Thus, it provides that “ each partner shall bring to the business of said firm, all his time, skill, influence, attention and labor.” Here we have an obligation to do, of a character specific performance of which is obviously non-enforcible, because involving the exercise of skill, good-will and like qualities inherent in the volition of the obligor, the exercise of which courts have no power of compelling. Fry on Spec. Perf. §§ 39, 40, 48, 50, 56, 58, 59, and authorities there cited. *1128So far as our former decree involved specific performance of this obligation, it was error and must be corrected. .
The contract also included the following distinct obligation not to do. “No partner shall have the right to enter into and carry on any business of a like nature with, the business of this partnership, whether for his otvn account or in conjunction with others.”
Why should not the.obligor be “restrained from doing anything in contravention of this obligation,” under the. terms of C. C. Art. 1929? We see no reason. Lawful contracts have the effect of laws as upon the parties to them. Therefore, it is the legal duty of the obligor to comply, the legal right of the obligee to exact compliance ; and a violation thereof is “injurious to plaintiff and impairs a right which he claims,” and is, therefore, a proper subject for injunction within the very terms of Art. 296, Code of Practice.
It is true that it was the ancient doctrine of English equity and is, perhaps, still that recognized in this country, that “ when the positive part of an agreement could not be performed by the court, it would not enforce the negative part by injunction.”. But to this rule there was always an exception, universally recognized, in the case of the contract of partnership, as to which it is well established, from an am cient date, that “ where a partner agreed to exert himself for the benefit of the concern, and not to carry on the partnership trade except as a partner, the court would, if the partnership was subsisting, enjoin agninst a breach of the last stipulation, though it certainly could not enforce the former.” Morrison vs. Coleman, 18 Ves. 437; Kemble vs. Kean, 6 Sim. 333; Whitaker vs. Howe, 3 Beav, 383; Willard’s Eng. Jur. p. 277; Pry on Spec. Perf. 230, note, 556, 557, note.
This is precisely the instant case, and we see no reason why a like principle should not be applied under our law.
We find no merit in any of the other objections to our former decree.
We do not consider that the penal clause attached to Art. 7 of the contract affects the right to the remedy by injunction. Fry on Spec, Perf. $ 66 et seq.
It is matter of course that the injunction will remain operative only during the existence of the partnership, and in case plaintiffs should claim its dissolution, that would end the injunction. As we must amend, we will guard this point, though, perhaps, unnecessary.
The reserve of right to claim damages applies, of course, only to damages inflicted by past illegal acts, and is not objectionable.
There is nothing in the objection that a public officer is enjoined from performing the duties of his office. The way to their performance, in the only proper and lawful mode, is left open to him.
*1129The judgment must be restricted to the relief by injunction, and our former decree must be amended in that respect.
It is, therefore, ordered that our former decree herein be annulled and set aside; and it is now ordered, adjudged and decreed, that the judgment appealed from be now amended by striking therefrom the words: “And that the said Bernard Michell be decreed to fulfil and carry out all of his said obligations under the said agreement;” that it be further amended by inserting therein, after the words, “ that the writ of injunction herein issued be made perpetual,” the words, “to be operative, however, only during the continued existence of the partnership ;” and that, as thus amended, the same be affirmed, plaintiffs and appellees to pay costs of this appeal.