Herbert Clayton and Jack Waller Ltd and Ors v Oliver

[1930] A.C. 209

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(Judgment by: Viscount Dunedin)

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

Court:

Judges: Lord Buckmaster

Viscount DunedinLord 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:
Viscount Dunedin

My Lords, I concur and have but little to add. It was explained to us at the Bar that this appeal was avowedly brought to test whether the case of Marbe v. George Edwardes (Daly's Theatre), Ld., ^[F18] was rightly decided. I think it was rightly decided. I do not feel that any generalization is possible, or that each and every contract would be found to fit a general rule. I think each contract as it arises must be considered by itself in order to see what are the prestations which each party is bound to perform. Considered from that point of view I think that in this case the appellants contracted not only to pay the respondent a salary, but to give him the opportunity of appearing before the public in a part which answered to the stipulated description. I do not repeat all my noble friend has said as to the failure of the part offered to satisfy that description.

I may be allowed to say that the exact words in which my noble friend expressed what it was competent for the jury to consider were agreed on after consultation between all the noble Lords who heard the case: but I agree with my noble friend in thinking that after all they are only the application to the present case of the well known rule of Hadley v. Baxendale. ^[F19]