Scottish Court of Session Decisions

On 16th April 1908 George Edward Wade, 70 Finchley Road, London, professionally known as “George Robey,” comedian, brought an action against Richard Waldon, proprietor and manager of the Palace Theatre, Glasgow, in which he concluded for £300 damages for breach of contract. Counter actions at the instance of (1) the said Richard Waldon, and (2) the Pavilion Theatre (Glasgow), Limited (of which Waldon was a director), were raised against Wade, in which the pursuers sued respectively for £500 damages on the ground that Wade had himself broken the contract in question through his failure to comply with one of the conditions thereof.

The facts are given in the opinion ( infra) of the Lord Ordinary ( Johnston), who, on 12th January 1909, allowed the pursuer (Wade) a proof of his averments limited to the question of damages, and dismissed both of the cross actions.

Opinion.—George Edward Wade, a professional comedian or music hall performer, acting under the name of ‘George Robey,’ was, on 20th March 1907, engaged by Richard Waldon, who is sole proprietor and manager of the Palace Theatre, Glasgow, and also a director of the Pavilion Theatre, Glasgow, Limited, to give performances at both these theatres nightly for one week, commencing Monday, 16th March 1908, at a salary of £350 for the week.

It will be observed that the contract was made twelve months, all but four days, before the engagement was to commence.

In consequence of Wade's failure to comply with an alleged condition of the contract, Waldon held him in breach, and when the time came refused to employ him, though, subject to his failure, if failure there was, to comply with the said alleged condition, he was willing to fulfil his engagement.

The question to bedetermined is whether the condition in question was a condition-precedent, a breach of which by Wade forfeited his right to enforce the contract, and exposed him to a claim of damages, or was an incidental stipulation only, a breach of which only exposed him merely to a claim of damages, leaving the main contract standing. On a consideration of the contract I am of opinion that it was the latter only.

Referring to the memorandum of agreement, I find in the first place that it bears to be entered into between Richard Waldon, sole proprietor and manager of the Palace Theatre, Glasgow, of the one part, and George Edward Wade, under his stage name of ‘George Robey,’ of the other part. Waldon is therefore the sole contracting party. The Pavilion Theatre, Glasgow, Limited, may have a jus qucesitum under the contract, but they are not directly parties to it, and therefore Wade has rightly sued Waldon as above liable to him.

The agreement then bears that the said Richard Waldon agrees to engage, and the said artiste to accept and perform, an engagement as comedian at a salary of £350 per week, two performances nightly if required, also matinees if required, such engagement to be performed at the Palace Theatre, Glasgow, and Pavilion Theatre, Glasgow, at such times as shall be arranged by the manager, and to commence on Monday, 16th March 1908, for the period of a week.

Subject to the rules of the establishment, printed on the back hereof, which the undersigned herewith acknowledges to have read, understood, and agreed to before signing this contract.

The said artiste or artistes agree not to appear at any other place of entertainment during the period of this engagement without special permission of the manager.

All artistes must attend rehearsals each Monday at 12 o'clock.

‘The said artiste agrees to give the performances herein arranged to be given to the best of his ability, and hereby agrees to pay to the said Richard Waldon ascertained and liquidate damages should the said artiste fail to fulfil this engagement from any cause, illness excepted.’

The rules and regulations, and they are twenty-three in number, which were endorsed on the back of the contract, which was a document partly printed, had, I think, with two or three possible exceptions, entirely to do with the management of the theatre and the personal conduct of the performers.

The particular rule or regulation which has occasioned the present question is—‘6 All artistes engaged at the Palace Theatre, Glasgow, must give fourteen days' notice prior to such engagement, such notice to be accompanied with bill matter.’

What happened was this—Wade, who was at the time performing at the Empire Theatre, Bristol, neglected to give the fourteen days' notice required by rule 6, or to supply the ‘bill matter,’ which should have accompanied such notice if the rule was to be literally complied with. Consequently in the week preceding 16th March 1908 Wade was not ‘billed to appear’ at the Palace and Pavilion Theatres, Glasgow, and observing the omission in the advertisements inserted in the papers of his profession, he telegraphed to the managers both of the Pavilion and of the Palace Theatres, Glasgow, as follows:—Name notin call for Monday; presume mistake,—to which he received the reply from the manager of the Palace Theatre—‘You never sent bill matter or notification, consequently contract broken; see rule 6 of contract,’ and from the manager of the

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Pavilion Theatre—‘Call in order; your name does not appear; will not play you owing to breach of contract.’

Where an agreement is made with an actor or singer twelve months before the date for his fulfilling his engagement, I can quite understand that it may be important that the management should be brought in touch with him by the fourteen days' notice required by rule 6 in order that they may know his whereabouts, and that he is to be counted on to fulfil his engagement. He may be dead, or dangerously ill, or abroad and out of reach, or, as here, 400 miles off; and further, having regard to the nature of the entertainments at these theatres, which are really only music halls, it may be important to the management, with a view to advertisements intended to draw the class for whom they cater, that they should know the performances, songs, &c.—in other words, the ‘bill matter’—which the artiste proposes to give. But it does not follow that failure to give the fourteen days' notice ‘accompanied with bill matter’ is a condition-precedent which entitles the employer to refuse the services of the artiste if he offers otherwise to fulfil his engagement. It may merely render the artiste liable in damages if such can be substantiated against him. In the case of Graves v. Legg, 23 L.J., Ex. 228, it is said by Pollock, C.B. (at p. 231)—‘The only question is whether the performance of the agreement was a condition-precedent or not to the defendants' contract to accept and pay for the goods. In the numerous cases on the subject, in which it has been laid down that the general rule is to construe covenants and agreements to be dependent or independent according to the intent and meaning of the parties to be collected from the instrument, and of course to the circumstances, legally admissible in evidence with reference to which it is to be construed, one particular rule well acknowledged is, that where a covenant or agreement goes to part of the consideration on both sides, and may be compensated in damages, it is an independent covenant or contract, and an action might be brought for the breach of it.’

Looking to the instrument in question, I think it must be gathered that ‘the rules of the establishment’ were rules and regulations with which the artiste undertook to comply, and that failure on his part so to comply might entail loss to the proprietors, which the artiste must compensate by damages. It is impossible to raise nine-tenths of these rules into anything higher than regulations for the conduct of the artistes during their engagements, breach of which could not possibly affect their contracts with the management. Found in such company it is impossible to attribute to this 6th rule any higher virtue. It is certainly precedent in this sense, that it refers to something to be done, and something which it may be greatly to the convenience and in the interest of the management should be done before the engagement commences. But no more than any of the other rules is it precedent in the sense that it must be fulfilled by the artiste in its terms antecedently to his being entitled to call upon the proprietors to avail themselves of his stipulated services and pay him the stipulated consideration. I think that, as put by Pollock, C.B., in the passage quoted above, this stipulation, taken at the highest, is an independent covenant only, for breach of which an action may be brought, and which may be compensated in damages.

I may also refer to the very analogous case of Bettini v. Gye, L.R., 1 Q.B.D. 183.

Consequently I must hold that Waldon was not entitled at 13th March 1908 to refuse to proceed further with the agreement which he had made in the March preceding with Wade, and that he is liable to Wade in damages for such refusal. He has accordingly no relevant answer to Wade's action, except that the damages claimed are excessive. The measure of damages has therefore to be ascertained unless it can be agreed upon.

In the cross actions at the instance of Waldon and the Pavilion Theatre I should say that at first sight it would appear that the pursuers have a claim against Wade for breach of this independent covenant, if they can qualify any substantial damage. But then both their cross actions are laid, not on the breach of the independent covenant, but on the breach of the main agreement. The damage averred is not the incidental damage that may have arisen from breach of this independent stipulation, but damages for the breach of the principal undertaking, as Waldon, by his own breach of the agreement, rendered it impossible that the incidental damages could ever emerge. He and the theatres which he represents are barred from suing these cross actions. Their averments are relevant to the major claim, which is in law untenable. They are irrelevant to the minor claim, which is tenable.

“I shall therefore in Wade's action sustain the first plea-in-law, and allow him a proof limited to the question of damages, while the cross actions as laid will be dismissed with expenses.”

The defender, Waldon, reclaimed.

[Reclaiming notes were also presented by each of the pursuers in the two counter actions. The three reclaiming notes were heard and disposed of together.]

Argued for reclaimer (Waldon)—The respondent had broken the contract by failure to comply with rule 6. That rule was part of the contract. It was a condition-precedent, breach of which by the respondent entitled the reclaimer to rescind the contract.—Bell's Prin. sec. 50; Mackay v. Dick & Stevenson, March 7, 1881, 8 R. (H.L.) 37, 18 S.L.R. 387; Bettini v. Gye, (1876), L.R., 1 Q.B.D. 183; Poussard v. Spiers & Pond (1876), L.R., 1 Q.B.D. 410; Bowes v. Shand (1877), L.R., 2 A.C. 455; London Guarantee Company v. Fearnley (1880), L.R., 5 A.C. 911.

Counsel for respondent were not called on.