437): there Mr. Colman was a part proprietor with Mr. Morris of the Haymarket Theatre, and they were partners in that concern, and by the deed of partnership Mr. Colman agreed that he would not exercise his dramatic abilities for any other theatre than the Haymarket; he did not, however, covenant that he would write for the Haymarket, but it was merely a negative Covenant that he would not write for any other theatre than the Haymarket. 340) ; that was a case of hiring and service, and the Vice-Chancellor there virtually admitted that a negative covenant might be enforced in this Court, and quoted an instance to that effect within his own knowledge. I apprehend, therefore, that the decision of the Vice-Chancellor, which proceeded on the principle I have stated, and rightly, on the grounds I have stated, and which I believe is the principle of this Court, and the principle on which the Vice-Chancellor acted as to that part of the case, is correct ; and equally applies, as it appears to me it does, to that part of the notice of motion with respect to the licences, because that forms a part of the contract, the generaI contract. In that case A. No contracts or commitments. . 1852) BENJAMIN LUMLEY v. JOHANNA WAGNER, ALBERT WAGNER and FREDERICK GYEBefore the Lord Chancellor Lord St. Leonards.May 22, 26, 1852. Lord Eldon's words are perfectly plain, they want no comment upon them, they speak for themselves. 437), on the ground of a partnership, that was in fact no distinction, nor did it form an element in the decision of the case, which was based solely on the existence of the negative stipulation; and the case of Clarke v. Price (2 Wils. As far as the words go, the observations of those two eminent Judges would seem to justify the argument which has been addressed to me; in effect, however, it was only specific performance, because a prohibition, pre-[616]-venting the commission of an act may as effectually perform an agreement as an order for the performance of the act agreed to be done. Mogul Steamship Co Ltd v McGregor, Gow & Co (1889) 23 QBD 598. Plaintiffs, in seeking specific performance of what they now term defendant's ministerial duty to hire a substantial number of additional laborers, run afoul of the well-established principle that performance of a contract for personal services, even of a unique nature, will not be affirmatively and directly enforced, Lumley v. Wagner. 654. There, a lease had originally been granted by the Plaintiffs, the proprietors of Vauxhall Gardens, of an adjoining house, under an express covenant that the lessee would not carryon the trade of a victualler or retailer of wines, or generally any employment that would be to the damage of the proprietors of Vauxhall Gardens ; an underlease having been made to the Defendants, who were violating the covenant by the sale of liquors, the proprietors of Vauxhall Gardens filed a bill for an injunction, which was granted by Lord Loughborough. 383;  see p. 395), where he says :—" I do not think that this Court can refuse to grant an injunction to restrain the violation of a contract or covenant, because there may be some part of the agreement which the Court could not compel the Defendant specifically to perform." It is now the case, in 21. st Procedural History: Lower court found for P, injunction granted. JC Williamson Ltd v Lukey & Mulholland; Lumley v Wagner; Share this case by email Share this case. The next case referred to was that of Barrett v. Blagrave (5 Ves. 437)), " say that I will induce him to write for the Plaintiff by preventing him from writing for any other person;" and then come these important words" for that is not the nature of the agreement." construction, and according to the true spirit of the agreement, the engagement to perform for three months at one theatre must necessarily exclude the right to perform at the same time at another theatre. be so called, because the parties were there both dealing with respect to the same subject, from which each was to have a benefit, but in no legal sense was it a partnership. at once by giving effect to the negative covenant, specifically executing it by prohibiting the commission of acts which have been stipulated not to be done. In' the present case, however, there has been a part performance, inasmuch as the Plaintiff has incurred considerable expense in preparing operas in which the Defendant J. Wagner was to sing. ‘Williams, this is for you’. .Nutkin (2 P. W. 266) the ringing of the bells was restrained, because not only was there no adequate remedy at law, but the contract was one clearly falling within the ordinary jurisdiction of the Court for specific performance. 660 ; Merchants’' Trading Co. v. Banner, 1871, L. R. 12 Eg. In the argument of Morris v. Colman (18 Ves. The agreement was entered into in the month of March 1841. Judging by headlines in Australia, sporting battles eclipse real battles. -. THE LORD CHANCELLOR observed that, when the affidavit, as to the contents of the letter, was made, Dr. Bacher could not have known that the letter would not be produced; that the affidavit, therefore, if untrue, was at the imminent peril of exposure by the production of the letter; and that under such circumstances the representation in the affidavit must be taken to be true. In Lumley v Wagner and Warner Bros v Nelson, the judges were prepared to contemplate that work … "It was thrown out, in the course of the argument, that this Court might compel one party to perform his part of the contract, and leave the other party to his remedy at law. What is an injunction? - Unreported, Supreme Court of Western Australia, White J, 8 September 1995. Johanna Wagner (defendant) agreed to sing exclusively for Benjamin Lumley’s (plaintiff) theatre. Lumley v. Gye Court of Queen's Bench, 1853 2 El. A "yes" or "no" answer to the question framed in the issue section; A summary of the majority or plurality opinion, using the CREAC method; and. Later, Covent Garden a competitor convinced Wagner to break her contract with Lumley and sing for them. Ford v. Jermon. But the Vice-Chancellor held that to be no difficulty at all; observing that the bill simply asked for an injunction which he would grant; although he could not give effect to the [632] affirmative covenant to do the act in respect of which no specific performance was asked: his own decisions in Kemble v Kean (6 Sim. [1901], 2 Ch. See Ryan v. Mutual tontine, &c., Association [1893], 1 Ch. THE LORD CHANCELLOR. Lumley v Wagner. The document also includes supporting commentary from author Derek Whayman. Wanted to work elsewhere. The undersigned Mr. Benjamin Lumley, possessor of Her Majesty's Theatre at London, and of the Italian Opera at Paris, of the one part, and Mademoiselle Johanna [688 Wagner, cantatrice of the Court of His Majesty the King of Prussia, with the consent of her father, Mr. A. Wagner, residing at Berlin, of the other part, have concerted and concluded the following contract :—First, Mademoiselle Johanna Wagner binds herself to sing three months at the theatre of Mr. Lumley, Her Majesty's, at London, to date from the 1st of April 1852 (the [605] time necessary for the journey comprised therein), and to give the parts following:  1st, Romeo, Montecchi; 2d, Fides, Prophete ; 3d, Valentine, Huguenots ; 4th, Anna, Don Juan; 5th, Alice, Robert le Diable; 6th, an opera chosen by common accord.—Second, The three first parts must necessarily be, 1st, Romeo, 2d, Fides, 3d, Valentine; these parts once sung, and then only she will appear, if Mr. Lumley desires it, in the three other operas mentioned aforesaid.—Third, These six parts belong exclusively to Mademoiselle Wagner, and any other cantatrice shall not presume to sing them during the three months of her engagement. Kemble v. Kean, 6 Sim. Implications of Lumley v. Wagner by Clark, George L. Publication date 1917-12-01 Publisher Columbia Law Review Collection jstor_colulawrevi; jstor_ejc; additional_collections; journals Contributor JSTOR Language English Volume 17 "Implications of Lumley v. Wagner" is an article from Columbia Law Review, Volume 17. contract (see Thornton v Shoe Lane Parking and Toll v Alphapharm); where the parties had numerous previous dealing with each other on the same basis (see Balmain Ferry v Robertson); or any onerous/unusual clause must be fairly and reasonably brought to the others attention: see Interfoto v Stiletto. A second issue was whether specific performance would be refused on the grounds of hardship to the defendant, which was not raised by many students. Cas. Judgement for the case Lumley v Wagner A singer Johanna Wagner, Df, entered into a simple contract to perform at Her Majesty’s Theatre, for a period of three months, covering a certain number of nights and nowhere else during that period. 454). Unreported, Federal Court of Australia, Queensland District Registry, Cooper J, 17 July 1998. On this principle the Court acts in restraining the violation of covenants in a lease, by a tenant, French v. Macale (2 Dru. Can the Court order Mr. Hills to continue the manufacture of acids for the purpose of supplying Mr. Croll? 80). Lumley had contracted Wagner to sing twice a week at Her … The earliest case most directly bearing on the point is that Morris v. Colman (18 Ves. Mr. Kean broke his engagement, a bill was filed, and the Vice-Chancellor Shadwell was of opinion that he could not grant an injunction to restrain Mr. Kean from performing elsewhere, which he was either about to do or actually doing, because the Court could not enforce the performance of the affirmative covenant that he would perform at Drury Lane for Mr. Kemble. 104). 333), Kimberley v. Jennings (6 Sim. B. D. 181 ; 8 App. No copy was kept by Dr. Bacher. The letter itself was not forthcoming, and its non-production was not accounted for. The effect, too, of the injunction in restraining J. Wagner from singing elsewhere may, in the event of an action being brought against. JISCBAILII_CASE_CONTRACT Neutral Citation Number: [1852] EWHC Ch J96(1852) De GM & G 604; 42 ER 687 IN THE HIGH COURT OF CHANCERY 22, 26 May 1852 B e f o r e : Lord Chancellor Lord St. Leonards. D subsequently agreed to sing in another theatre. He said: "I remember a case in which a nephew wished to go on the stage, and his uncle gave him a large sum of money in consideration of his covenanting not to [624] perform within a particular district ; the Court would execute such a covenant, on the ground that a valuable consideration had been given for it." Lord Chancellor’s Court 42 Eng. We rely upon the decision of Lord Cottenham in Dietrichsen v .. Cabburn (2 Phil. Lumley v. Wagner: Court Chancery Division Citation 1 De G., M. & G. 604, 42 Eng. _____ Between: LUMLEY v WAGNER _____ The bill in this suit was filed on the 22nd April 1852, by Benjamin Lumley, the lessee of Her Majesty's Theatre, against Johanna Wagner… The case of Lumley v Wagner (1852) 1 De GM & G 604; 42 ER 687 involved Johanna Wagner, a famous German singer (and the niece of Richard Wagner). 2. Volume 5 Issue 2 Article 1 1998 Damning with Fulsome Praise: Assessing the Uniqueness of an Artist or Performer as a Condition to Enjoin Performance of Name: Charles Fried. … "Now, there is no principle of the Court which I understand to be more dearly established than this, that the Court will not decree an agreement to be specifically performed, unless it can execute the whole of the agreement. Lumley v Wagner, 1. in which the Lord Chancellor, Lord St Leonards, made an exceptional decision to grant an injunction to enforce a promise in a personal services contract. B. D. 341 ; Alderson v. Maddison, 1881, 7 Q. Procedural History: Lower court found for P, injunction granted. The Defendants denied that it contained the statement alleged, but did not produce the letter, or satisfactorily account for its nonproduction. The issue section includes the dispositive legal issue in the case phrased as a question. I said, in effect: I cannot execute this contract which is intended to be binding on both parties; I cannot execute a portion of this contract for one, and leave the other portion of the contract unexecuted for the other; and, therefore, as I cannot execute the whole of the contract, I am bound to execute no part of it: that, however, has no bearing on the present case, for here I leave nothing unperformed which the Court can ever be called upon to perform. (A) An order to pay an amount of money (B) An order to stop the performance of a certain act (C) An order to change a contract between two parties (D) An order to have a dispute settled by a trial with a jury 20 Which of the following best defines customs? The bill was filed for the purpose of calling on' the Court to declare that that agreement should be specifically performed. 340), were pressed upon him; but he observed "that the bills in the cases cited asked for specific performance of the agreement, and that the injunctions were sought as only ancillary to that relief ; but the bill in the present case asked merely for an injunction." Lumley v. Wagner 42 Eng. You can access the new platform at https://opencasebook.org. Being pressed by that passage which I have read from in the Lord Chancellor's judgment in Morris v. Colman (18 Ves. 555), which involved the doctrine of part performance, the tenant having enjoyed the benefits of the lease. The agreement to sing for the Plaintiff during three months at his theatre, and during that time not to sing for anybody else, is not a correlative contract, it is. Lumley v. Wagner 42 Eng. as cutter at a certain allowance. Written and curated by real attorneys at Quimbee. JISCBAILII_CASE_CONTRACT Neutral Citation Number: [1852] EWHC Ch J96(1852) De GM & G 604; 42 ER 687 IN THE HIGH COURT OF CHANCERY 22, 26 May 1852 B e f o r e : Lord Chancellor Lord St. Leonards. Injunction sought on specific performance to prevent the elsewhere and it was granted. In the case of Stocker v. Brockelbank there was no negative covenant.]. View this article on JSTOR. Rep. 749 (Q.B.) Like a mutant gene, that decision has evolved over time to create a monstrous distortion in contemporary Australian employment law. for procurement is an anomaly confined to the case of master and servant. Contract; remedies for breach; injunctions; prevention of threatened breach of contract. The prayer of the bill in the present case is not for specific performance and for an injunction as ancillary to that relief, but for an injunction simply, to prevent the violation of the negative stipulation in the Defendants' agreement. Like this case study. This is the old version of the H2O platform and is now read-only. 433. If you logged out from your Quimbee account, please login and try again. It was, nevertheless, and with some reason, said that although the point of law should be decided in the [633] Plaintiff's favour, still he might be excluded from having the benefit of it on the merits of the case. 333) and Kimberley v. Jennings (6 Sim. Some law schools—such as Yale, Vanderbilt, Berkeley, and the University of Illinois—even subscribe directly to Quimbee for all their law students. The same remark applies also to the case of Barrett v. Bla-[610]-grave (5 Ves. "Those are the facts of the case for the purpose of raising the narrow question, as it appears to me, which the Court has to decide. 27 The love triangle is still an extremely common trope. Whatever may have been the mutual obligations in that case, which prevented the Court from giving effect to the negative covenant, I am not embarrassed with any such difficulties here, because, as I have already shewn, both the covenants are on the part of the Defendants. Wherever this Court has not proper jurisdiction to enforce specific performance, it operates to bind men's consciences, as far as they can be bound, to a true and literal performance of their agreements ; and it will not suffer them to depart from their contracts at their pleasure, leaving the party with whom they have contracted to the mere chance of any damages which a jury may give. 454), before Lord Eldon, in which this Court has declined to exercise the power (which in that instance it was assumed to have had) of preventing the commission of an Act, because such power could not be properly and beneficially exercised. 141; Warne v. Routledge, 1873, L. R. 18 Eq. You can try any plan risk-free for 7 days. If the Court cannot do this, it cannot restrain the parties at the hearing. See Fothergill v. Rowland, 1873, L. R. 17 Eq. Quimbee California Bar Review is now available! It is clear, I apprehend, that the Court has no such power. 189. 468 (n.);j Bowen v. Hall, 1881, 6 Q. View more articles from Columbia Law Review. It was further said that the Court never interferes in cases like the present, which was alleged to be one of personal service; but in the case of articled clerks, &c., the Court has continually restrained them from practising within certain limits, in violation of their agreements. The authority for all inducing breach of contract cases is Lumley v Gye. Lordship added that he had always felt some difficulty in acquiescing in the propriety of that decision.]. We’re not just a study aid for law students; we’re the study aid for law students. Lumley v Wagner [1852] EWHC (Ch) J96 is an English contract law case, concerning the right to terminate performance of a contract. 269). When 'this cause, therefore, comes to a hearing, I am of opinion that, according to the facts as they at present stand, and according to the statement of the principle I have mentioned, this Court cannot restrain Mr. Croll from purchasing acids elsewhere, because it cannot compel Mr. Hills, on his side, to furnish all the acids that may be necessary for the manufacture carried on by Mr. Croll. News 22. The familiar case of a tenant covenanting not to do a particular act was also put during the argument; but it was said that in such a case the jurisdiction springs out of the relation of landlord and tenant, and that the tenant having received the benefit of an executed lease, the injunction operates only so as to give effect to the whole contract; that, however, cannot be the principle on which this Court interferes, for, beyond all doubt, where a lease is executed containing affirmative and negative covenants, this Court will not attempt to enforce the execution of the affirmative covenants either on the part of the landlord or the tenant, but will leave it entirely to a Court of law to measure the damages ; though with respect to the negative covenants, if the tenant, for example, has sti-[618]-pulated not to cut or lop timber, or any other given act of forbearance, the Court does not ask how many of the affirmative covenants on either side remain to be performed under the lease, but acts. Industrial Relations Act 1967. Unreported, Supreme Court of Queensland, Williams J, 1 April 1992. lo Beltech Corporation Ltd v Wybom (1988) 92 FLR … This website requires JavaScript. No such principle has ever been acted on in this Court; it has been so laid down over and over again, and in a recent case that was cited at the Bar (Gervais v. Edwards, 2 Dru. This means you can view content but cannot create content. When that case came before Lord Eldon, he dissolved the injunction, but upon a different ground, namely, on that of acquiescence for many years, and in a sense he treated it as a case of specific performance. . Lumley v Wagner, 1. in which the Lord Chancellor, Lord St Leonards, made an exceptional decision to grant an injunction to enforce a promise in a personal services contract. ", His Lordship here referred to another question raised in the course of the discussion, namely, whether the second or modified agreement had been put an end to by the operation of the clause providing for the enforcement of the first or original agreement; and, after remarking that it was unnecessary for him, for the purpose of the present question, to come to any conclusive decision on that point, proceeded as follows :—. There were some other subordinate stipulations to which it is not necessary at present to advert. The bill then stated that in November 1851 Joseph Bacher met the Plaintiff in Paris, when the Plaintiff objected to the agreement as not containing an usual and necessary clause, preventing the Defendant Johanna Wagner from exercising her professional abilities in England without the consent of the Plaintiff, whereupon Joseph Bacher, as the agent of the Defendants Johanna Wagner and Albert Wagner, and being fully authorized by them for the purpose, added an article in writing in the French language to the agreement, and which, being translated into English, was as follows:—. If, indeed, A. had agreed to sell an estate to B. and then proposed to deal [609] with the estate so as to prevent him from performing his contract, equity would interfere; because in that case B. would, by the contract, have obtained an interest in the estate itself, which, in the case of the goods, he would not." [604] [S. C. 5 De G. & Sm. A. entered into a covenant that he would not carryon the trade of a tailor which he had just sold, within certain limits, and C. entered into a covenant that he would employ A . A case commonly cited for that purpose is the case of a nuisance. 157) shew that he did mainly decide it on the ground of partnership; [621] but he did not decide it exclusively on that ground. Lumley v. Wagner. The authority of Clarke v. Price (2 Wils. His Lordship concluded by saying that, looking at the merits and circumstances of the case, as well as at the point of law raised, he must refuse this motion, with costs. Middlebrook Mushrooms v TGWU [1993] IRLR 232 (CA) Millar v Bassey [1994] EMLR 44. If the Court cannot execute the whole of the contract, it cannot execute the contract in part; therefore I am of opinion that, in this case, the motion must be refused, and refused with costs.". Defendant was an opera singer who contracted to sing at plaintiff’s opera. Great Atlantic & Pacific Company of Canada. Then click here. 871. The question which I have to decide in the present case arises out of a very simple contract, the effect of which is, that the Defendant Johanna Wagner should sing at Her Majesty's Theatre for a certain number of nights, and that she should not sing elsewhere (for that is the true construction) during that period. Sign up for a free 7-day trial and ask it. Why should they not thus engage for the talents of each other ? " This case document summarizes the facts and decision in Lumley v Wagner (1852) 42 ER 687, Court of Chancery. In the former case he observed that Lord Eldon must be understood, in the case of Morris v. Colman (18 Ves. In Lumley v Wagner, Lord St Leonards LC, in his judgment, disclaimed doing indirectly what he could not do directly; and in the present case, by granting an injunction I would, in my judgment, be doing precisely that. A majority of the court held Mr Gye liable for inducing Ms Wagner’s breach of contract using the cases about seduction of servants, among other things. 60) before Lord Lyndhurst. 333), and in Kimberley v. Jennings (6 Sim. The expressions in the judgment are :—" I cannot, as in the other case" (referring to Morris v. Colman (18 Ves. It was said that this Court would, at all events, only interfere in cases where there had been part performance, but such a construction would exclude all executory contracts. J. W. agreed with B. L. that she, J. W., would sing at B. L.'s theatre during certain period of time, and would not sing elsewhere without his written authority. If not, you may need to refresh the page. 60). In reference to those points he observed that, whether the clause was originally added with or without authority, the evidence shewed a clear acquiescence on the part of the Defendants to its remaining in the agreement ; that the operation of the agreement had been in the first instance postponed to suit the convenience of the Defendants; and that as to the payment of the £300, although the Plaintiff could not have come into a Court of Equity to enforce the contract without having tendered the amount stipulated to be paid, yet it was distinctly proved that it had in fact been paid to the common agent of both parties for the purpose of being handed to the Defendants. It is quite clear that, upon this interlocutory application, the Court cannot restrain Mr. Croll from purchasing acids elsewhere. 04/21/2016 at 18:42 by Test Account; 02/28/2017 at 12:01 by Charles Fried. 06/01/2017 at 14:38 by Charles Fried; 07/21/2015 at 03:16 by Cindy Whang; 12/01/2017 at 12:06 by Brett Johnson; 01/07/2016 at 12:50 by Charles Fried. 898; 16 Jur. 80), Sir Edward Sugden held that, unless this Court can execute every part of the contract, this Court will not compel a specific performance, of a part. In Hills v. Croll (2 Phil. Question was … Held, on a bill filed to restrain J. W. from singing for a third party, and granting an injunction for that purpose, that the positive and negative stipulations of the agreement formed but one contract, and that the Court would interfere to prevent the violation of the negative stipulation, although it could not enforce the specific performance of the entire contract. 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