Herbert Clayton and Jack Waller Ltd and Ors v Oliver

[1930] A.C. 209

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(Judgment by: Lord Buckmaster (including background))

Between: Herbert Clayton and Jack Waller Ltd and Ors - Appellants
And: Oliver - Respondent

Court:

Judges:
Lord BuckmasterViscount Dunedin
Lord Blanesburgh
Lord Warrington of Clyffe
Lord Tomlin

Subject References:
CONTRACT
THEATRICAL ENGAGEMENT
Construction
Breach
Obligation on Manager to find a Part for Actor to play
Measure of Damages
Loss of Publicity

Case References:
Fechter v. Montgomery approved - (1863) 33 Beav. 22
Marbe v. George Edwardes (Daly's Theatre), Ld. approved - [1928] 1 K. B. 269
Turpin v. Victoria Palace, Ld. overruled - [1918] 2 K. B. 539

Judgment date: 10 February 1930

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Judgment by:
Lord Buckmaster (including background)

The appellants, theatrical producers, agreed to engage the respondent, an American actor, to play one of the three leading comedy parts in a musical play about to be produced at the London Hippodrome for six weeks certain at a salary of 55l. per week, and the contract contained a provision prohibiting the respondent during the continuance of his engagement from acting elsewhere without the consent of the appellants. The respondent objected that the part assigned to him was not one of the three leading comedy parts and, on the refusal of the appellants to recast him, declined to appear in the play and sued the appellants for damages for breach of contract. At the trial of the action before a judge and jury the jury found for the respondent for 1000l. damages for loss of publicity and for three weeks' salary, and judgment was entered accordingly. The Court of Appeal affirmed the verdict and judgment except as to the salary:-

Held,

(1.)

upon the construction of the contract, that it bound the appellants to give the respondent an opportunity of appearing in public in a part answering the stipulated description;

(2.)

that it was competent to the jury, having regard to the character of the contract, to give damages to the respondent for loss of publicity.

Fechter v. Montgomery (1863) 33 Beav. 22 and Marbe v. George Edwardes (Daly's Theatre), Ld. [1928] 1 K. B. 269 approved.

Turpin v. Victoria Palace, Ld. [1918] 2 K. B. 539 overruled.

Appeal from so much of an order of the Court of Appeal as affirmed the verdict and judgment directed to be entered for the plaintiff (the respondent) at the trial of the action before Swift J. and a special jury.

The substantial question raised by the appeal was whether an actor who is engaged to act in a theatre and is not allowed so to act, or justifiably refuses so to act, is entitled to damages for loss of enhancement of his reputation or for loss of publicity.

By a contract contained in two letters dated June 21 and 22, 1927, the appellants agreed to engage the respondent to play one of the three leading parts in a musical play intended to be produced at the London Hippodrome called "Hit the Deck" for six weeks certain at a salary of 55l. per week of nine performances, with an option to the appellants to re-engage the respondent for the run of the play. The contract is fully stated in the opinion of Lord Buckmaster.

The appellants cast the respondent for the part of Bunny Smith, and on the reading of the first act of the play the respondent complained that this was not one of the three leading comedy parts and was not a part at all. The appellants refused to recast the respondent and alleged that the part was a good performance of the contract. Thereupon the respondent declined to appear in the production and issued the writ in this action against the appellants for damages for breach of contract.

By his statement of claim the respondent, after setting out the facts above stated, alleged (para. 2) that by a collateral oral contract made shortly before June 22, 1927, the appellants agreed with the respondent that in consideration of his entering into the said engagement the appellants would secure to the respondent the fullest possible publicity by advertisements in the press and outside the theatre. The respondent further alleged (para. 6) that all parties to the contract intended that the respondent should enjoy from his employment, in addition to his salary, the publicity and reputation which would result from his playing a leading and consequently widely advertised part in an important West End production under the auspices of producers of the standing of the appellants and that by reason of the breaches complained of he had lost the said publicity and been deprived of the advantages and reputation which would have followed a successful performance of the part agreed to be played. The appellants by their defence denied the above allegations and alleged that the damages claimed were too remote.

Swift J. in summing up directed the jury that they had to decide two questions:

(1.)

whether the appellants, by giving the respondent a part which was not a leading comedy part, broke their contract, and

(2.)

if they did, what damages was the respondent entitled to, and on this head he directed the jury that they might properly include damages for loss of publicity.

The jury found for the respondent for 1000l. for loss of publicity and 165l. for loss of salary, and judgment was entered for the respondent for 1165l.

The appellants appealed to the Court of Appeal and asked for judgment or a new trial. The Court of Appeal (Scrutton, Greer and Sankey L.JJ.) dismissed the appeal except as regards the salary, as to which no question now arose.

1929. Dec. 2, 3. Stuart Bevan K.C. and Beyfus (with them St. John Field and Robey) for the appellants.

(1.)

The judge misdirected the jury in telling them that the respondent was entitled under his engagement to a leading comedy part and not that he was entitled to one of the three leading comedy parts in the particular play.

(2.)

The respondent is not in law entitled to any damages for loss of enhancement of reputation or loss of publicity. This contention is opposed to Marbe v. George Edwardes (Daly's Theatre), Ld., ^[F1] which, unless it can be distinguished on its special facts, was, it is submitted, wrongly decided.

In that case the decision of the Court of Appeal was to some extent influenced by the fact that there was a collateral contract that the actress should be prominently advertised, and this formed the foundation of Bankes L.J.'s judgment.

Here there is no proof of any such collateral contract as that alleged by the plaintiff. By the contract in question in this case the appellants agree to engage the respondent to play a specified part, there is no agreement that he shall have a right to play the part, nor is there any necessary implication of any such right. There is no difference between a contract to engage an actor and any other contract of employment. The actor is to hold himself available at any time when called upon and he is to be entitled to his salary: Turpin v. Victoria Palace. ^[F2] A servant or employee who is wrongfully dismissed from his employment is not entitled to damages for loss of reputation in the trade arising from his dismissal, but the measure of damages is the payment of the salary. The general rule is that damages for wrongful dismissal are limited to the plaintiff's direct pecuniary loss: Addis v. Gramophone Co. ^[F3]

The rule as to implications in a contract is that it is not sufficient for the purpose of importing a stipulation into a contract that the implication is a reasonable one to make under the circumstances; it must be necessary in order to give the transaction such efficacy as both parties must have intended it should have: The Moorcock; ^[F4] Hamlyn & Co. v. Wood & Co.; ^[F5] Bunning v. Lyric Theatre. ^[F6] In the last cited case the actual decision was that a stipulation in an engagement of the plaintiff as musical director that his name should be advertised in the newspapers implied that he should have the right to conduct. That decision proceeded on the special bargain, and does not affect the present case. Marbe's case, ^[F7] so far as it did not depend upon its special facts, was founded upon Lord Romilly's decision in Fechter v. Montgomery, ^[F8] but there also there was a special parol contract, and that was a case not of damages but of an injunction. But, so far as the decision proceeded upon the view that an engagement of an actor stood on any different footing from another agreement of employment, it is incorrect. Fechter v. Montgomery ^[F8] was distinguished in Grimston v. Cuningham, ^[F9] which supports the appellants' case. Damages for loss of reputation have never been given in any case before Marbe's, though the question has been frequently raised in the Courts. Such damages are too remote and of such an intangible nature that they are incapable of assessment.

Sir Patrick Hastings K.C. and P. B. Morle for the respondent (called on on the question of misdirection only). At the trial it was alleged on behalf of the respondent

(1.)

that the part complained of was not one of the three leading parts in the play, and

(2.)

that it was not a leading comedy part at all, and the answer given was that this was going to be a leading comedy part.

Having regard to the way in which the case was presented it would be an impossible situation to have a new trial.

Beyfus replied.

The House took time for consideration.

1930 Feb. 10. Lord Buckmaster -

My Lords, there are two main questions on this appeal - the one the construction of a contract and the other the true measure of damages for its breach.

The contract was made in the following circumstances. The respondent Barrie Oliver is a young actor, who has been appearing on the stage since 1923 first in America and then here.

The appellants Herbert Clayton & Jack Waller, Ld., and Moss Empires are theatrical producers.

On June 21, 1927, following on some conversations, the respondent wrote to the appellants a letter which began as follows:-

"23 Hertford Street,

Mayfair, W.

June 21st, 1927.

Messrs. H. Clayton & J. Waller, Ld., & Moss Empires, Ld.,

15 King Street, London, S.W. 1.

Dear Sirs,

In consideration of your paying me a salary of 55l. (Fifty-five pounds) per week of nine performances I hereby agree to play one of the three leading Comedy parts in your new Musical production at the London Hippodrome.

The engagement to commence on or about the middle of September, 1927, and to be for six weeks certain, you to have the option of re-engaging me for the run of the Play in the West End of London by giving me notice in writing during the first four weeks of the engagement."

To which they replied on June 22, in these words:-

"June 22, 1927.

We hereby agree to engage you to play one of the three leading Comedy parts in our new musical production at the London Hippodrome at a salary of 55l. (Fifty-five pounds) per week of nine performances. The engagement to commence on or about the middle of September, 1927, and to be for six weeks certain. .... Otherwise this contract to be subject to the terms and conditions contained in the Standard Contract West End."

It is on the construction of these documents that the first question depends. There was evidence of a collateral verbal agreement, but to this in the circumstances further reference need not be made.

The respondent who was the plaintiff in the action alleged that the true meaning of the contract involved an obligation on the appellants to provide him with a part answering the description in the contract, that such contract was broken, and that he suffered damage (a) for loss of salary (b) for loss of the advertisement and reputation he would have enjoyed had the contract been performed.

The case was tried before a jury, who found in favour of the respondent and assessed the damages under (a) at 165l. and under (b) at 1000l. On appeal to the Court of Appeal it was pointed out that the respondent having obtained service at an equivalent remuneration elsewhere the verdict under (a) could not be sustained. The Court of Appeal accordingly modified the verdict by omitting this sum, but confirmed it in other respects, and from that judgment this appeal has been brought. The construction of the contract and the verdict for 1000l., therefore, are all that are now in dispute.

The construction of the contract is the first matter for consideration. If its true meaning is to be confined to a mere engagement of the respondent's services, the appellants must succeed, for in such an action the wages lost are the true measure of damage and the circumstances associated with the termination of the contract cannot be used to increase that sum.

If, on the other hand, the contract be one binding the appellants to provide a part for the respondent to play, different considerations arise and the measure of damages for breach of that bargain stand on a different footing. There is no evidence here of custom in the profession, but the character of the employment is an essential fact in determining its meaning.

The contract is based on the forthcoming production of the new musical comedy at the London Hippodrome. It is not made conditional on its production. That it is to be produced underlies the whole document and it assumes the necessary arrangements having been made. An engagement, therefore, that the respondent is "to play one of the three leading comedy parts" is to my mind something more than a mere contract on the respondent's part to render service, opportunity for such service is contemplated and agreed to be furnished. This is still further enforced by the imported conditions, one of which provides:-

"Exclusive Services.

4. The Artist shall be deemed to be engaged exclusively by the Manager and during the continuance of the engagement will not perform or otherwise exercise his or her talent for the benefit of any other Company Institution or person without the written consent of the Manager first had and obtained. Provided that such consent shall not be unreasonably withheld in the case of any application for the making of a gramophone or similar record."

Now if the appellants were merely accepting the respondent's service for the period of the contract and were not bound to give him work, the service obviously not occupying all his time, this provision, which would on that hypothesis prevent him from profitably using time not owed to them, would have little or no purpose. On the hypothesis, however, that he was being provided with a part it becomes sensible even if it be severe. To my mind it helps to explain the provision as to engagement and shows that there was within the contemplation of the parties the dual obligation to which I have referred. This view of the bargain does not lack authority. The case of Fechter v. Montgomery ^[F10] is a similar case.

The written bargain there was constituted by the acceptance of a written offer dated July 28, 1862, by the lessee of the Lyceum Theatre to a leading actor "to offer you an engagement at the Lyceum Theatre for two years from January, 1863." The lessee opened the theatre but gave no part to the actor, who thereupon accepted an engagement elsewhere. The lessee instituted proceedings claiming an injunction to restrain his performance. This injunction was refused upon the ground that the plaintiff had himself broken the contract he sued to enforce. The condition alleged restraining the defendant from outside work was introduced into the contract by an alleged custom in the profession to that effect. This was accepted by the learned judge and it was partly on this that he based his conclusion. It is true that in the judgment reference is also made to some antecedent verbal discussion where the actor said he came not to be idle but to act, but it is impossible to follow the reasoning without realizing that this was not the real foundation of the judgment. The learned judge there says:

"That being the state of the case, the only questions are, whether that contract has been really broken between the parties, and who was the person that first broke it, so as to entitle the other to say it is no longer binding upon him. Upon that question, it is material to regard the facts that occurred; but before I advert to them, I may notice an observation that fell from Mr. Terrell, that the contract is like an agreement for engaging a clerk, or any other person whose service you require and wish to secure.

I do not assent to that view of the case; you must regard the position and situation in which the person is placed who enters into the contract. Here the defendant carries on the profession of an actor, a profession peculiar in its character and results, for it is to be observed that his success entirely depends on pleasing the public, and upon being constantly before the public. It is scarcely possible to say that he could acquire such a reputation, by being associated with Mr. Fechter, as would supply the place, which I assume, for the purpose of the argument, he might have gained by delighting a large portion of a London audience with the ability with which he acted.

It is obvious that you cannot put him in the position of a clerk or other person similarly situated and compare him with such a person. It is clear that the great object of any gentleman wishing to become a distinguished actor, when he has already established a reputation in the provinces, is to have an opportunity of appearing upon the London stage and before a London audience. That is the object for which a person enters into a contract of this description, and it would be defeated if the effect of the contract is this: that if the gentleman who engaged him is not bound to employ him, and does not in fact do so, so as to give him an opportunity to display his talent and abilities, yet he is not to be at liberty to act elsewhere, unless by the permission of the gentleman who engaged him. I entertain no doubt that it was a mutual contract between the parties, and also that Mr. Fechter so understood it."

It is true that the learned judge adds:

"It is shewn by Mr. Barnett's letter, and by the conversation itself, that this was part of the contract entered into between them,"

but this I regard as nothing but confirmation of the reasoning which is independent of the verbal negotiations.

I have dealt with this judgment at length since it formed the basis of the opinion of two learned Lords Justices in the case of Marbe v. George Edwardes (Daly's Theatre), Ld., ^[F11] and it has, I think, been misunderstood in the case of Turpin v. Victoria Palace. ^[F12] In my opinion the judgments of the two Lords Justices in the Court of Appeal in Marbe's case who based their judgments on Fechter v. Montgomery ^[F13] rightly interpreted the judgment in this case, and the passage which I have already quoted is, in my opinion, an accurate exposition of the principles applicable to the construction of the contract then under consideration. The contract in the present case is in its essence the same as that in Fechter v. Montgomery, ^[F13] but the condition there implied restraining the actor from performing elsewhere is here plainly expressed.

In the case of Turpin v. Victoria Palace ^[F14] the learned judge fell into the error of thinking that because in the case of Fechter v. Montgomery ^[F15] the relief sought was by way of an injunction, it did not apply, but the construction of the contract is the same whether the remedy for its breach be by way of injunction or damages, and it is only on the distinction drawn between such a contract as the one then under consideration and the ordinary contract of service that the authority is of any value. In contrast with this decision the case of Turner v. Sawdon & Co. ^[F16] is instructive.

There an agreement to "engage and employ" as a salesman was held to be merely a contract to serve and that the word "employ" did not throw on the employer any obligation beyond that of master and servant, but that decision was due to the fact that, regard being had to the occupation, the word "employ" though capable of two meanings meant in that case only to retain in the service of the employer. This is made clear in the judgment of Stirling L.J., who says: "In the case of an actor who accepts an engagement, it may be an important consideration with him to have an opportunity of displaying his abilities before the public, and it may be there is an implied obligation on the part of the master to afford such opportunity," and he refers to and relies on Fechter v. Montgomery ^[F15] as authority for the proposition. I agree with this view of Stirling L.J. and I think, entirely independently of the verbal conversation, Fechter v. Montgomery ^[F15] was rightly decided.

The next question is whether the contract was broken by the appellants, and here I agree with Scrutton L.J. that the matter was not placed as accurately as could be desired before the jury, due, no doubt, to some unfortunate confusion in the presentation of the case.

The true meaning of the contract is that the respondent was to have one of the three leading comedy parts in the play called "Hit the Deck." This was properly alleged in the pleadings, but the case was presented on the ground that such a part as that assigned to the plaintiff could not be called a leading comedy part in anything.

Sir Patrick Hastings, on behalf of the respondent, said that this view was the only thing really discussed, but this is certainly an over emphasis of what occurred. Both views were clearly presented by the evidence but the more general view was the one urged on behalf of the plaintiff, and it nowhere appears that this was regarded as irrelevant. None the less, I think the summing up should have been far more exact in its definition of the issue, and more limited in its scope. Unless, however, it is plain that injustice might reasonably be expected to have resulted from an irregularity in summing up, a new trial ought not to be granted, for it is the substance and not the letter that should be regarded.

One of "the three leading comedy parts" assumes that there are three leading comedy parts in the play, and though this must be regulated by looking at the play itself, yet in my opinion it is not satisfied by saying:

"Here are the best three comedy parts - you shall have one of them."

The part must be capable of satisfying the qualification of being a genuine leading comedy part even though judged in relation to the play, and though I think this ought to have been so put to the jury, I regard their finding as a verdict that the condition was not satisfied on any view, and examination of the part itself is an ample justification of their opinion. Making all necessary allowances for the fact that the kind of humour of such a play seems melancholy in print, the part assigned to the plaintiff is so trivial that even in relation to this play the verdict is fully warranted. Attempts were made by the appellants to justify by suggesting that the written part was only a kind of seed from which a full grown part might spring, and that the respondent was premature in writing as he did two days after the first meeting that he had no alternative but to decline to appear, but in my opinion the part ought to have satisfied the conditions when given to the plaintiff at the rehearsal and this it failed to do.

No other part was offered and the result is that the appellants broke their contract. The next question is what was the measure of damage? It is true that as a general rule the measure of damage for breach of contract is unaffected by the motives or manner of its breach. What are known as vindictive or exemplary damages in tort find no place in contract nor accordingly can injury to feelings or vanity be regarded. The action of breach of promise of marriage is an exception to the general rule, for, strictly assessed, the loss to a woman as a husband of a man who declines with insult to marry her might be assumed to be nil, but that is not the way such damages are determined.

In the present case the old and well established rule applies without qualification, the damages are those that may reasonably be supposed to have been in the contemplation of the parties at the time when the contract was made, as the probable result of its breach, and if any special circumstances were unknown to one of the parties, the damages associated with and flowing from such breach cannot be included. Here both parties knew that as flowing from the contract the plaintiff would be billed and advertised as appearing at the Hippodrome, and in the theatrical profession this is a valuable right.

In assessing the damages, therefore, it was competent for the jury to consider that the plaintiff was entitled to compensation because he did not appear at the Hippodrome, as by his contract he was entitled to do, and in assessing those damages they may consider the loss he suffered

(1.)

because the Hippodrome is an important place of public entertainment and

(2.)

that in the ordinary course he would have been "billed" and otherwise advertised as appearing at the Hippodrome.

The learned judge put the matter as a loss of reputation, which I do not think is the exact expression, but he explained that as the equivalent of loss of publicity and that summarizes what I have stated as my view of the true situation.

As to the amount, that was for the jury; the damages appear co me extravagant just as they were in Marbe's case, ^[F17] but they are not so extravagant as to vitiate the verdict.

I agree with the judgment of Scrutton L.J., this case might have been more carefully handled at the trial, but I cannot find sufficient ground of complaint to warrant this House deciding that it should be tried again.