Scottish Court of Session Decisions

Charles Halcroft, London, pursuer, brought an action in the Sheriff Court at Glasgow against the West-End Playhouse, Limited, Glasgow, defenders, to recover £25 damages for breach of contract which had been cancelled by the defenders, and under which the pursuer was to have played in the defenders' theatre.

The defenders pleaded, inter alia—“(2) The defenders' theatre not being in the occupancy and possession of the defenders on said 3rd March 1913, they are not in breach of contract and should be assoilzied with expenses. (3) It being impossible to perform said contract, through no fault of the defenders, they are not liable in breach thereof and are entitled to absolvitor with expenses.”

The contract was as follows:—

Contract, dated 23rd August 1912.

“Veuillez lire les conditions inserees sur l'autie cote de la page. Man ist hierdurch ersucht die Bedingungen auf der andere seite zu lesen. Si prega di leggere le condizioni scritte nell altra parte della pagina.

Artisles will please intimate here what other dates they hold in Glasgow.

West-End playhouse, Ltd.,

Glasgow.

Stamp. Six Pence

The Glasgow Pavilion, Ltd.

Lyceum Theatre, Ltd., Govan,

Glasgow.

The ‘Award’ Contract

For Music Halls in the Provinces, working on the “Twice-a-Night”

System.

Stamp 10/

N.B.—No Commission Must be charged by any Manager doing business—direct with an Artiste.

An agreement made the 23rd day of August 1912, between West-End Playhouse, Ltd., Glasgow (Note.—A condition of the acceptance of this contract is that the Management have power to transfer the Artiste to the Glasgow Pavilion, Ltd., or Lyceum Theatre, Ltd., Govan, Glasgow, by giving notice on receipt of billing matter), hereinafter called the Management of the one part, and 3 Royal Dreadnoughts, hereinafter called the Artiste of the other part, witnesseth that the Management hereby engages the Artiste, and the Artiste accepts an engagement to appear as shooting act (or in his usual entertainment) at two performances every evening at the theatres, and from the dates, for the periods, and at the salaries stated in the schedule hereto, subject to the said theatre being in the occupancy and possession of the Management, and upon and subject to the under-mentioned conditions:—

1. The word Artiste' shall, when more than one is included in the performance, include the plural.

2. The Artiste agrees to appear at any matinees required by the Management, and shall be paid at the rate of one twelfth of the weekly salary for each matinee.

3. Where this contract relates to a partnership, troupe, or sketch, the Artiste shall, at the time when the contract is signed, furnish the Management, in writing, with such names as the Management may require, and shall not substitute a performer for a person so named without the written consent of the Management.

4. The Artiste may be transferred during the whole or any part of the engagement (not less than one week) to any other theatre owned or controlled by or associated with the Management, with the consent of the Artiste, such consent not to be unreasonably withheld. If such transfer is made in the Provinces, reasonable expenses shall be allowed.

5. Barring Clause.—The Artiste shall not, without the written consent of the Management, appear at any place of entertainment within a radius of ten miles for fifteen months prior to his appearance, nor for two weeks afterwards—according to this contract—excepting in a town which has a population of more than 70,000 inhabitants (according to the London A B C Railway Guide), and is situated beyond a radius of six miles.

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If the period between the date of this contract and the performance exceeds the period of bar, the Artiste, before accepting an engagement at another theatre within the barred area, shall offer his services to the Manager on the terms mentioned in this contract, and thereupon the Management shall accept such offer in writing, and specify the theatre for the performance within a week, or be deemed to have refused the same.

Upon breach of (any of) the barring clauses the Artiste shall pay to the Management as liquidated damages one week's salary for each breach thereof, but nothing in this clause shall affect the right of the Management to apply for an injunction to restrain the Artiste from performing or rehearsing in breach of the said clauses, nor the right to determine the contract.

6. The Artiste shall not infringe any copyright, patent, or proprietary rights of third parties, and in the event of infringement shall be liable for, and on demand pay, the amount of all damages, penalties, and costs incurred by the Management.

The Artiste shall not give, or permit to be given, any colourable imitation or version of his performance within the radius or time prescribed by the barring clauses.

7. In case the Artiste shall, except through illness certified as hereinafter provided, or accident proved to the satisfaction of the Management, fail to perform at any performance, he shall pay to the Management, as and for liquidated damages, a sum equal to the sum which the Artiste would have received for such performance, in addition to costs and expenses incurred by the Management through the default of the Artiste.

When the Management own or control two theatres in any provincial town, the Artiste shall act as deputy in cases of emergency upon request, and be paid at the rate of £

8. The Artiste undertakes that his performance shall not be dangerous to the artistes, audience, or stage employees. If any accident or injury results from the performance of the Artiste, the Artiste shall pay for any damage or costs incurred by the Management.

9. The Management shall not be liable to the Artiste or to the legal personal representative of the Artiste for any loss, damage, or injury to the Artiste's person or property during or in connection with the engagement, unless caused by the negligence of the Management.

10. The Artiste shall not assign, mortgage, or charge his salary, nor permit the same to be taken in execution. No salary shall be paid for days upon which the theatre is closed by reason of national mourning, fire, epidemic, strikes, lock-outs, disputes with employees, or order of the licensing or any public authority. No salary shall be payable for any performance at which an Artiste may not appear through illness or his own default, nor, provided that two months' previous notice has been given to the Artiste, for days upon which the theatre is closed for alterations, decorations, repairs, or any cause which the Management may reasonably consider adequate.

11. The Artiste agrees to observe and carry out conditions and regulations imposed by statute, the Corporation, or other public authority, and to comply with the requirements of any public authority that scenery and properties used by the Artiste shall be non-flammable. All flammable material brought into the theatre by the Artiste may be required to be made non-flammable by him or, at his expense, by the Management.

12. The Artiste declares that at the time of signing this contract he is under no engagement with any other Management that can preclude him from fulfilling the engagements shown herein, and that he has not concealed any change of professional name or description.

13. The rules and regulations subjoined shall be read and construed as forming part of this contract, and the Artistes agree to abide by all reasonable rules which may from time to time be made by the Management for the good and orderly conduct or special requirements of their theatre, provided that the rules shall have been served on or brought to the notice of the Artiste.

14. Upon the breach by the Artiste of any of the terms and conditions in this contract, or of rules 1 to 10, the Management, without prejudice to other remedies, and in addition to rights given under the terms and conditions aforesaid or the rules, may forthwith determine this contract, and the Artiste shall have no claim upon them for salary (other than a proportion for, performances played), expenses, costs, or otherwise.

The same provision shall apply upon breach by any member of a troupe or company if not remedied after complaint by the Management.

15. Any notices under this contract may be served upon the Artiste by posting the same to his last known address, or to the agent through whom this contract is made, or while performing at any theatre in the manner specified in rule 11.

16. The Management may by notice in writing, to be given before the termination of this engagement, re-engage the Artiste once, subject to any engagements existing at the date thereof, to appear at any of the theatres herein mentioned for a like period not exceeding weeks, to commence not later than 18 months subsequent to the date of the notice, and the Artiste shall, if so required, perform accordingly upon the same terms as in this contract.

17. If the Artiste's performance is contrary to law, or is objected to by any licensing or other public authority, the contract may be cancelled by the Management.

If the Management be threatened with legal proceedings in respect thereto the contract may be cancelled, unless the Artiste forthwith provides indemnity to the satisfaction of the Management.

18. In the case of all artistes the matter for billing, programmes, and advertisements, and the words of all songs, must reach the Management at the General Offices, 136 Renfield Street, Glasgow, not less than 14 clear days before the date of opening, or failing which the Artiste hereby expressly agrees that the Management shall, at their option, be entitled to cancel this contract; and in addition to the foregoing power of cancellation, the Artiste shall be liable and shall pay to the Management, as he hereby expressly agrees to pay, a sum equal to one week's salary as at the West-End Playhouse, Ltd., Glasgow, in name of agreed-on liquidate damages for every breach of the stipulations regarding timeous notification of billing matter as aforesaid.

19. Artistes must state when signing this contract what dates they hold in Glasgow, and at which hall.

Schedule.

One week at Playhouse, commencing 3rd March 1913, at a salary of twenty-five pounds stg. per week (twelve night performances).

£25 stg. West-End Playhouse, Ltd.,

Glasgow,

per Johnston Tait.”

On 1st December 1914, a proof before answer having been led, the Sheriff-Substitute ( David J. Mackenzie) pronounced this interlocutor—“ Finds (1) that the pursuer resides at 3 Electric Mansions, Brixton, London, S.W., and is proprietor of the Three Royal Dreadnoughts, and the defenders are the West-End Playhouse, Limited, Glasgow, having offices at 136 Renfield Street, Glasgow; (2) that on 23rd August 1912 a contract was completed between the pursuer and defenders, by which the Three Royal Dreadnoughts were to appear at the defenders playhouse in Glasgow for a week commencing 3rd and ending 8th March 1913 at an agreed-on salary of £25 for said week.… (3) That the said contract,

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after reciting the above agreement, contains a proviso in these words, ‘subject to the said theatre being in the occupancy and possession of the management’; (4) that at the date of said contract the defenders' theatre, The West-End Playhouse, was in course of construction, and at the date of said engagement, 3rd March 1913, the said theatre was still only in course of construction, and was not as a theatre in the occupancy and possession of the management …; (6) that the cause of the defenders' theatre not being in the occupancy and possession of the management on the date of the engagement was the delay which occurred in the supply of steel material by the contractors employed by the defenders in its construction; (7) that the defenders made every reasonable effort to expedite the construction of said theatre, but that these efforts were unsuccesful, and that the theatre, which was expected to have been opened in December 1912, was not in fact completed until July 1913 owing to the cause above referred to; (8) that said delay in the supply of steel material was owing mainly to the state of the steel market produced by the coal strike in the spring of 1912, and was not due to any fault on the part of the defenders: Finds in law (1) that the proviso above quoted from the contract between the pursuer and defenders is operative in the circumstances to render the contract void as regards the dates thereby fixed, as the theatre was not then in the occupancy and possession of the management in the sense of said proviso, and that defenders are not in breach of said contract; and (2) that the defenders are not liable to the pursuer in any sum of damages in respect of a breach of said contract: Therefore assoilzies the defenders from the conclusions of the action.”

The pursuer appealed to the Sheriff ( Millar), who on 10th February 1915 adhered.

The pursuer appealed to the First Division of the Court of Session, and argued—The defenders had represented or warranted to the pursuers that the theatre was in their possession and occupation at the date when the contract was entered into, or alternatively that they would be in possession and occupation at the date when the contract fell to be fulfilled. There was no evidence to show that at the time of the contract the pursuers knew that the theatre was only in course of completion. In point of fact the pursuer did not know that, and so far as he was concerned the defenders were in possession and occupation of the theatre. In the contract the theatre was given a name. Article 10 implied that the theatre existed, and on the principle unius inclusio exclusio altering the defenders' contention was excluded. There was no evidence to show that the completion of the theatre was a commercial impossibility, and even if it had been that was not a sufficient answer— Baily v. De Crespigny, (1869) L.R., 4 Q.B. 180, per Hannen, J., at 185. Admittedly if the contract had contained the following condition, viz., “subject to there being a theatre in existence and the defenders being in possession thereof,” the defenders would have been entitled to succeed, but that condition could not fairly be read into the words, “subject to the said theatre being in the occupancy and possession of the management”— Hong Kong and Whampoa Dock Company, Limited v. Netherton Shipping Company, Limited, [1909] S.C. 34, 44 S.L.R. 35; Gillespie & Company v. Bowden & Company, (1885) 12 R. 800, 22 S.L.R. 527. The cases of Taylor v. Caldwell, (1863) 3 B. & S. 826, and Clark v. Glasgow Assurance Company, (1854) 1 Macq. 668, and similar cases, were distinguishable from the present in respect that in these cases the subjects had ceased to exist, whereas in the present case the theatre did exist although it had not been completed. The case of Couturier v. Hastie, (1856) 5 H.L. 673, was also distinguishable in respect that in that case there was mutual error. T. & R. Duncanson v. Scottish County Investment Company, Limited, (1915) 52 S.L.R. 790, and Paradine v. Jane, Aleyn 26, were also referred to.

Argued for the respondents—The defenders had not represented or warranted to the pursuers that they were in occupation and possession of the theatre at the date when the contract was entered into, or that they would be in possession and occupation of it at the date when the contract fell to be fulfilled. In point of fact the defenders were not in possession and occupation of the theatre at the date when the contract was entered into, and through no fault of theirs it was impossible to complete it in time to fulfil the contract. Mere occupancy of the ground did not amount to occupation of the theatre— Nickoll & Knight v. Ashton, Edridge, & Company, [1901] 2 KB 126. The words “subject to the said theatre being in the occupancy and possession of the management” implied a condition that the theatre should be in existence at the date when the contract fell to be fulfilled— Krell v. Henry, [1903] 2 KB 740; Hardie v. Balmain, (1902) 18 T.L.R. 539; Poussard v. Spiers, (1876) L.R., 1 Q.B.D. 410; Howell v. Coupland, (1876) L.R. 1 Q.B.D. 258; Taylor v. Caldwell, cit., per Blackburn, J., at 833; Strong, Dramatic and Musical Law, 3rd ed., pp. 27 and 28, and cases there cited, and p. 34; Anson, Contracts, 13th ed., p. 374.

At advising—