In the High Court of Justice, Chancery Division, 30th July 1951, before Mr. Justice Danckwerts
Contract - Publication of music - Breach of contract - Specific performance ordered.
By a contract made orally in September 1949 between the plaintiff and D., representative of the defendants, the defendants agreed to publish a musical work composed by the plaintiff. The plaintiff executed a written assignment in favour of the defendants whereby the rights of performance and representation in respect of the work would be shared equally between them. The defendants had by this time obtained a recording of a performance of the work, and also a number of written scores. The plaintiff had made it clear that he required publication to be as soon as was practicable. He contended, and the defendants denied, that the oral contract was for publication in the November issue of the defendants' Journal. In November the plaintiff discovered and objected to the editing of his work by the defendants, but the defendants contended that this had been a condition of the oral contract. He also objected to the name of the defendants' musical editor appearing on the work as arranger and asked if it was possible that the defendants might make him an advance payment in respect of the work because of the delay in publication. The defendants thereupon stopped all work on the publication of the piece. In February 1950 in order to obtain publication as soon as possible, the plaintiff withdrew his objections, but when publication had not been effected by the middle of March, he put the matter in the hands of his solicitors. The defendants offered either to publish the work, without stating when they proposed to do so, or alternatively to re-assign the rights in the work on the basis that there had been no breach of contract.
The plaintiff, in claiming specific performance or alternatively rescission of the contract, and damages for its breach, alleged that D. had fraudulently misrepresented that the defendants intended to publish the work in the November issue of the Journal.
Held, (1) that the contract was for publication in the next issue of the Journal, which was anticipated to be in November, and that the contract had been broken by the defendants;
(2) that, notwithstanding that some supervision was necessary, the plaintiff was entitled to specific performance, but not to rescission, because damages for failure to publish would be difficult to assess and would not be an adequate remedy;
(3) that the plaintiff, having incurred loss through the delay in the publication of his work, was entitled to an award of damages of £75 for breach of contract;
(4) that, on the facts, there was no basis for an allegation of fraud.
No cases were referred to in the judgment.
This was an action for breach of contract brought by Wing Commander Patrick Barrow against Chappell & Co. Ltd.
K. E. Shelley, K.C. and F. E. Skone James, instructed by Syrett & Sons, appeared on behalf of the plaintiff. Gilbert Beyfus, K.C. and Guy Aldous, instructed by Gery & Brooks, appeared on behalf of the defendants.
JUDGMENT
Danckwerts, J. - This is an action by Mr. Patrick Barrow against Chappell & Company Limited, a company which is in the business of publishing music and who have been in that business for a considerable time. Chappell & Company Limited, and another company of a similar kind, Boosey & Hawkes Limited, are apparently the only two publishers who deal will the publication of military band music.
The plaintiff, Mr. Barrow, at an early age was evidently a musician of some promise; he had some experience when he was still a scholar at Wellington College, and subsequently he has composed pieces of music, but I think I should be correct in saying that, whilst he is obviously a composer of some ability, he has not yet made a name, which by itself would carry any strong prospect of remuneration without some assistance in the publication of his work; he is not in a position to compel publishers to wait upon him and publish his works or anything of that kind. Mr. Barrow, or, to give him the rank which he held in the recent war, Wing Commander Barrow, was employed upon Intelligence duties during the war, part of which involved waiting for the return of aircraft from their missions so that he could investigate their stories, and, while waiting, conceived the idea of writing a piece of music which he calls "Elegy". That piece of music achieved some importance because, on the 11th September 1949, it was performed by the massed bands of the Royal Air Force at the Albert Hall; it was performed on the 18th September 1949 at the Battle of Britain celebrations at Westminster Abbey; on the 13th October 1949 there was a performance at Wellington College (where, of course, the plaintiff had been at school), and, on the 18th November 1949 there was a broadcast performance from Lincoln Cathedral.
In addition, the plaintiff had written two other works called the "Uxbridge March" and "Volsette", which he combined into a suite for a military band. He wished to get that suite published, and, with a view to that purpose on the 2nd September 1949, he wrote a letter to the defendant company suggesting that a representative might attend a rehearsal of the bands at the Albert Hall. That letter came into the hands of a Mr. Peter Daniels; Mr. Peter Daniels was a representative employed by the defendant company and he did in fact attend at the rehearsal on the 11th September 1949, at which, after some waiting, he heard a performance of the "Elegy". He was apparently rather impressed by it, so much so that at his own expense he obtained a recording of the performance. The plaintiff handed to Mr. Daniels the pianoforte score with a view to securing publication of his work; it was shown by mr. Daniels to a Mr. Ricketts, who was the managing director of the defendant company, and it was submitted by Mr. Ricketts to a Mr. Duthoit, who is employed, and who has been employed for some time, by the defendant company for the purpose of editing the works which the defendant company wished to publish. Apparently, Mr. Duthoit - about whom I shall say something presently - approved or said it was suitable for publication in the defendants' Journal of Military Band Music. That is a journal which is published - and which, I was told, has been published from the year 1858 - by the defendant company containing parts of various works performed by military bands, and it was, I think, what the plaintiff desired to be the immediate medium for the publication of his works.
On the 24th September 1949, Mr. Daniels, who had been instructed by Mr. Ricketts that the suite, called the "Hillingdon Suite", of the plaintiff had been accepted by the defendant company for publication, telephoned the plaintiff in the afternoon, and I think it was upon that occasion that the contract which is the subject of this action was made. It is therefore of great importance to know what was said by Mr. Daniels to the plaintiff on the occasion of that telephone conversation. It is not denied by the defendant company that the contract was made by the defendant company on that occasion through Mr. Daniels with the plaintiff for the publication of the plaintiff's work, but the question is as to the precise terms, express or implied, of that contract.
According to the plaintiff's evidence, what Mr. Daniels said was: "I have good news for you, the whole suite is accepted. Can you let me have the music as soon as possible as we want it for the November Band Journal?" According to Mr. Daniels' account, what he said was: "I said something like the work had been accepted, that we intended to publish it, and it would appear in our next Journal"; he said it would be in their Army Journal, and he says he never mentioned any November Journal. In cross-examination he said: "Chappell's had accepted the work and intended to publish it in the next Journal I got from Mr. Ricketts". Mr. Ricketts, who I thought gave his evidence very fairly, said that in September 1949, Daniels came to him and said he had been to the Albert Hall and had heard the military band music and he was very struck with the work of the "Elegy": "I told him to get the work published, and then it was referred to Duthoit and Duthoit said that the work was suitable for the Army Journal". He then told Daniels that the work had been accepted, and Daniels said: "There is a little speed required. I told him to find out Duthoit's commitments, and I told him to put it in the next Journal". It is quite plain, I think, that no reference to Duthoit's commitments, or being in the next Journal that Duthoit would start upon, was ever communicated by Mr. Daniels to the plaintiff. The plaintiff was certainly promised by Mr. Daniels on behalf of the defendants that the suite would appear in the next Journal. One of the issues is whether that was a promise that it should appear in the November issue of that Journal.
Evidence has been given that the Journal is not in any sense a monthly issue, but that it is issued at intervals according to the amount of music available, and, I suppose, convenience and other considerations regulate such matters. In fact, there was an issue of the Journal on the 23rd November 1949, but it did not contain the plaintiff's work. It was, in fact, the "King's Rhapsody", and there is some suggestion made on behalf of the defendant company that that was put out particularly in that way because it was necessary to secure the opportunity provided by the popular success of that music for the Festival.
However that may be, the first question is whether there was any promise that the plaintiff's work should be in the November Journal. Now, I think that it is very probable that Mr. Daniels did tell the plaintiff that the next issue of the Journal would be in November, or thereabouts, because I think that if the plaintiff was told that the work would appear in the next issue of the Military Journal, it would be a natural question to ask: "When will that be?" and I therefore think that Daniels may have said it would be about November.
In the course of this action a charge of fraud has been made against Mr. Daniels alleging that he fraudulently, either deliberately or recklessly, misrepresented to the plaintiff that there was an intention on the part of the defendants to publish the work in the November issue of the Journal. I have seen Mr. Daniels in the witness box, and I am satisfied that there was not the slightest basis for any such charge, and, in my view, no charge of fraud ought to have been made. Mr. Daniels was, I thought, a pleasant and careful little man who gave his evidence extremely well, and I am quite satisfied that he is not in the least likely to have been guilty of any fraudulent misrepresentation. If he said anything about publication in the November issue at all, I am satisfied that it was merely part of the contract which was made between the plaintiff and the defendants, and that it is quite a different matter from misrepresentation. I am also quite satisfied that whatever Mr. Daniels said he said in complete honesty, and I do not think he could possibly be accused of carelessness or recklessness in any way in regard to his statements. It may be that he did not pass on exactly the instructions given by Mr. Ricketts, because he did not refer in any way to the question of whether Mr. Duthoit was concerned with the question of the publication of the issues of the Military Journal.
To return to the sequence of events, on the 15th September 1949, the combined parts of the "Uxbridge March" and the "Volsette" were taken by the plaintiff to the defendant company, and, on the 19th September 1949, Wing Commander Sims, the Director of the Royal Air Force Band, had had the band parts of the "Elegy" posted to the defendants. On the 4th October 1949, the plaintiff executed an assignment in writing of the copyright and all the rights in connection with the "Hillingdon Suite" to the defendant company on the basis that he should receive fifty per cent of the mechanical fees received, after the cost of collection had been deducted, and that the performing and broadcasting fees should be collected by the Performing Right Society Limited and should be divided in the proportion of fifty per cent to the assignor - that is, the plaintiff - and fifty per cent to the defendant company. That therefore means that the rights for performance and representation in respect of the plaintiff's work would be shared equally by the plaintiff and the defendant company. According to the rules of the Performing Right Society, it appears that, in the absence of a special contract, the normal division is two-thirds to the composer and one-third to the publisher, but it is not unusual for a special contract to be made for equal division, and this contract appears to have been the ordinary contract made by the defendant company with a composer.
It is obvious that the plaintiff was very anxious to have his works speedily published, and that he was certainly led to believe that they would be published by the defendant company perhaps towards the end of the year of 1949 or early, I think, in 1950. Accordingly, he anticipated an early publication of his works. By means of a letter dated the 18th November 1949, the existence of Mr. Duthoit was brought to the notice of the plaintiff more effectively, because Mr. Duthoit wrote to the plaintiff questioning certain parts of the plaintiff's scoring of his work; in addition to the score for the military band which had been previously delivered, he had previously received an orchestral score of the plaintiff's work. On the 20th November 1949, the plaintiff went to see Mr. Duthoit and found him working on the orchestral version, I think it was, of the "Volsette". This was very much of a surprise to the plaintiff, and it was quite obvious that it had never been brought to his notice that the work was to be edited as a matter of course by Mr. Duthoit, which is one of the conditions alleged on behalf of the defendants to have attached to the contract. It is quite clear, therefore, that the plaintiff could not be subjected to any such condition of rearrangement or editing by Mr. Duthoit without the consent of the plaintiff. Mr. Duthoit may be a very competent rearranger of music, but he is an extremely pompous and self-important little man, and, if his alterations upon the plaintiff's work caused the plaintiff to be not only surprised but aggrieved and annoyed, I feel some sympathy with the plaintiff's attitude. However that may be, it is plain that the plaintiff was not bound by the terms of the contract to submit to anything of the sort.
Now, at this time there comes into the picture, very soon afterwards, another representative of the company whose appearance on the scene appears to me to have been extremely unfortunate. As I have said, Mr. Ricketts gave his evidence extremely fairly, and he appeared to me to have business morals of the highest character. He regarded Chappells as a company which always stood by its promises and one which, if it undertook to do any work, would carry out its promise. There came on the scene a Mr. Holmes. The business morals of Mr. Holmes are of a very much lower character. He evidently was misled as to the terms which had been made with the plaintiff, but he also, I think, regarded the obligations of the company to a composer in a rather different manner than Mr. Ricketts would have done. I think, perhaps, that a fair indication of his attitude towards composers was indicated by a remark which had been made: "I don't have to see every composer".
At this time, in December 1949, the plaintiff was getting worried because he had received no news of the publication of his work, and I think he was also rather disappointed that the operations had not resulted, so far, in any remuneration to him of any kind. It seems to me that a composer who is not a well-known composer, or otherwise in an exceptionally strong position, is at very much of a disadvantage in dealing with a well-established company and which is almost in a monopoly position position as regards the publication of work of this kind, and therefore it is very easy for a person representing such a company to deal with a composer in a high-handed manner. It seems to me that in the two interviews which took place between Mr. Holmes and the plaintiff on the 22nd December 1949, and on the 20th February 1950, Mr. Holmes did deal with the plaintiff in an extremely high-handed manner; he apparently was greatly incensed because the plaintiff had asked for some payment which, it is quite evident, the plaintiff was not demanding as a right in any way, but he was pointing out that Christmas was coming, it would be an expensive time of the year, and could not the defendant company make some payment to him as an advance of whatever he might hope to receive in respect of his goods. As he admitted quite plainly in his letter, he had no legal right to any such thing, but, at the same time, it seems to me not an unnatural desire and a request which could have been dealt with by Mr. Holmes, if he had so wished, in a very different manner from the one adopted by him. The manner which was in fact adopted by him was to say: "You are a dissatisfied composer. Take your work back. We will rescind the agreement for publication and you can go somewhere else".
Now, months had gone by, and, in any case, it was not easy for the plaintiff to go to some other publisher and get his work published. It seems to me, therefore, that it was a manner of putting pressure upon the plaintiff which was not in any way justified by the plaintiff's conduct, and was also obviously inconsistent with the plaintiff's rights under his contract. At any rate, the result of the interview of the 22nd December 1949, was that, because the plaintiff was objecting - as, in fact, he had a legal right so to do - to the editing of his work by Mr. Duthoit, and because he had asked for some money, work was stopped upon the editing or rearrangement by Mr. Duthoit to the plaintiff's works and nothing more was done. With regard to the interview of the 20th February 1950, the plaintiff - who, by this time, I think had realised his difficulties in dealing with the position and strength of the position of the defendant company - was prepared, I think, to agree to almost anything, and he did say he would withdraw his objection to the editing of his work by Mr. Duthoit, and also another objection that Mr. Duthoit's name should appear on his work as an arranger, and he said he would make no further demands for payment of money in advance. Upon that he anticipated, as it appears from the correspondence, that within a few days he would be told that some definite arrangement had been made by the defendant company for the publication of his works. A fortnight went by and nothing emerged at all; thereupon, he went to see Mr. Daniels, but Mr. Daniels was unable to tell him anything, and I am quite satisfied that Mr. Holmes was not inclined to give any definite information to the plaintiff.
Accordingly, the plaintiff, having failed to secure publication of his works, eventually, on the 15th March 1950 put the matter in the hands of his solicitors, and they wrote to the defendant in these terms:
"We have been consulted by Wing Commander Patrick Barrow with reference to the assignment of his musical work entitled "Hillingdon Suite" in favour of your company dated the 4th October 1949. We are instructed that contrary to the express representations made by your company's representative at the time and to the implied covenant contained in the said assignment, your company have failed to exploit or publish our client's work, thus depriving him of royalties and fees in respect thereof. Our client informs us that Mr. Peter Daniels on behalf of your company assured him that his work would be published in the November issue of your Military Band Journal, and that the necessary steps would be taken for the early distribution of professional copies and for the recording of the work, records of which are in great public demand. In these circumstances, we shall be glad to hear that you will forthwith take the necessary steps to exploit and publish our client's work and to obtain the necessary copyright protection therefor. Alternatively, if it is not your intention to proceed with the publication thereof, we shall be glad to hear that you are prepared to reassign the work to our client, and to return to him or us on his behalf all manuscripts and other copies thereof, including the recording made on behalf of your company upon the occasion of the performance of the work at the Royal Albert Hall on the 11th September last. In that event, our client reserves his right to claim payment of damages for breach of contract".
In the circumstances, that seems to me to be a perfectly proper letter which has been written by the plaintiff's solicitors, and it also seems to me to make it quite plain that what the plaintiff desires, which is natural, is that the publication of his work should be effected or that the return of his copyright - which is something mentioned in the alternative - must be something which will be considered enforceable in the light of the circumstances. That letter received formal acknowledgment and was handed over to the defendants' solicitors. Eventually, on the 30th March 1950, comes a letter from the defendants' solicitors which did not say: "Well, of course, we will go ahead at once with the publication of your client's work", but it expresses surprise at the letter as they, the defendants, "were under the impression that all points of difference had been straightened out at a recent interview between your client and Mr. Holmes" - that is the interview of the 20th February 1950 - and, they say, the defendants do not admit that they have failed in the performance of any obligations. They do then say:
"It is, and always has been, our client's intention in the exercise of their discretion and experience to exploit and publish the work in the best interests of your client and they were under the impression that Commander Barrow was now satisfied in that respect. We do not propose, therefore, at this juncture to discuss the question of the construction of the assignment. In view of the above, it does not appear to be necessary for us to deal with the alternative proposition contained in the last paragraph of your letter; if, however, your client still feels dissatisfied, our clients would be quite willing to discuss the re-assignment of the work, but only on the basis that there has been no breach of contract on their part". In other words "Have your work back, and you will be out of pocket over all the delay which has occurred".
It seems to me, that the alternative being put forward by Mr. Aldous as a fair alternative, either: "We will publish" - which apparently means publish in their own good time - or have your work back", is merely a useless one from the plaintiff's point of view, because the contract he desired to secure had never in fact been carried out, and this is now the 30th March 1950.
It was submitted on behalf of the defendant company that there was no agreement to publish in any definite Journal, and certainly no agreement to publish in any issue for November 1949. On that basis it was argued and submitted that the implication in the contract must be the publication of the work within a reasonable time. Evidence was adduced on behalf of the defendant company to show that a reasonable time would be anything round about twelve to eighteen months. In the circumstances of the present case, I am not satisfied that that would be a reasonable time in any event, because I think it was quite plainly brought home to the defendant company that expedition was of importance to the plaintiff. Therefore, if he had to wait eighteen months, say, it would (at any rate, to some extent) defeat the purpose which he had in mind. Accordingly, I am not satisfied that twelve months to eighteen months would be a reasonable time for publication in the circumstances of this case.
As I have already said, I have come to the conclusion that there was a contract by the defendants for publication in what was termed "the next issue" of the defendant company's Military Journal, which it was anticipated would be issued in November or thereabouts. Accordingly, it seems to me that contract was broken by the defendants and the plaintiff is entitled to appropriate remedies.
In regard to the question of remedies, the plaintiff asks for specific performance of that which has been his aim. It is quite right to say that the writ and the statement of claim contain a clause for rescission of the agreement, but, of course, that is not necessarily in any way inconsistent with the claim for specific performance. I think the plaintiff is entitled to specific performance, but not for rescission. As regards a contract of this kind, it may be thought there is some difficulty in regard to the principles of specific performance, in that a contract requiring the publication of a musical work might require some supervision over a period of time. On the other hand, quite plainly, the plaintiff has fully performed everything which ought to have been performed on his part, and it was evident that damages in a case of this kind would be extremely difficult to assess and would, I think, be no adequate remedy for the plaintiff. Fortunately, in this respect, the defendants have been of assistance in that they are prepared to undertake to publish the work, as I understand it, with all due despatch.
Therefore, in the circumstances, I do not think an order for specific performance presents any real difficulty. But, in addition, there remains the question on the issue of damages. On the construction of the contract which I have reached, it seems to me in the circumstances - whether it be regarded as a contract for publication in November 1949, or a contract for publication within a reasonable time - that there has been a breach of that contract by the defendant company for which the plaintiff ought to obtain some damages. In a case of this kind, and in the circumstances attendant upon a contract calling for publication of the work under these particular circumstances, that seems to me to be a very difficult matter. But, applying my mind to it in the best way I can and in trying to estimate, very conservatively, what I think the loss to the plaintiff must have been through the delay in the publication of his work, I think a fair amount to award for damages would be 75 pounds. Accordingly, I assess damages at 75 pounds.
It seems to me that the result of that is that the defendant company must pay to the plaintiff the costs of the action, except in so far as they have been increased by the charge of fraud.
Order for specific performance and damages; plaintiff's costs of the action except for defendants' costs in relation to the charge of fraud.