Contract - Engagement of Actress - Breach - Damages - Loss of Publicity - Libel - Qualified Privilege - Plaintiff fails to prove Malice - Discretion of Judge - Election of Defendant to call Evidence.
An actress, who had acquired considerable reputation in the United States and was anxious to appear in London in order to add to her popularity, obtained an engagement with the managers of a London theatre to rehearse and play a named part in a named play from a certain date at such times and at such theatres in the West End of London as the managers should from time to time direct at a salary of £100 for every week during the run of the play. By a collateral agreement the managers undertook to advertise the actress's name in a prominent position, and up to the date of the dress rehearsal they duly performed this undertaking. On that date they refused to allow her to appear in the part either on the agreed date or at all. The actress brought an action against the managers claiming damages for breach of contract including damages for injury to her reputation in not being allowed to appear in the part as advertised. The defendants paid the agreed salary up to a certain date, and paid into the Court the balance from that date until the piece ceased to run, and contended that the plaintiff was not entitled to any further damages:-
Held, that the contract imposed an express obligation upon the defendants to allow the plaintiff to appear in the part as agreed, and that damages for breach of that obligation might properly include such a sum as a jury might reasonably award as compensation for loss of reputation.
Turpin v. Victoria Place [1918] 2 K. B. 539 questioned.
In an action of libel, where the defendant establishes a qualified privilege for the publication, and the plaintiff fails to adduce any evidence of malice, the judge is not obliged then and there to withdraw the case from the jury, but, if the defendant proposes to call evidence, may in his discretion defer ruling on the question of malice until he has heard the evidence for the defendant. In the exercise of this discretion the position of a defendant who has to adduce evidence upon other issues in the action should be considered.
APPEAL from the judgment of Horridge J. in an action tried before the learned judge and a special jury.
The plaintiff was an American actress of some considerable reputation in the United States, where she had earned as much as £200 a week. The defendant company was in May, l928, producing at Daly's Theatre, London, a musical play called "Yvonne." The defendant James White was the chairman of the defendant company.
The action was brought (1.) for damages for breach of an agreement dated June 2, 1926, and made between the defendant company, therein called "the manager," of the one part and the plaintiff, therein called "the artist," of the other part; and (2.) for damages for a libel contained in a letter written and published by the defendants through their general manager, on July 29, 1926. The material clauses of the agreement and the letter are set out below. There was originally a further claim for unpaid salary. The writ was issued on August 11, 1926; the statement of claim was delivered on November 8, 1926; by their amended defence delivered on March 22, 1927, the defendants paid into Court £2057 which, with £500 paid in on December 17, 1926, they said was sufficient to satisfy the plaintiff's claim for unpaid salary. The plaintiff agreed to accept this sum in respect of salary, and the action proceeded for further damages for breach of the agreement and damages for libel.
The material clauses of the agreement were the following:-
1. The manager engages the artist to rehearse and play the part of Lolotte in the play called 'Yvonne' from the date of the first rehearsal hereinafter stated at such times and at such theatres in the West End of London as the manager shall from time to time direct, and the artist accepts the said engagement upon the terms and conditions herein appearing."....
"3. (1.) The period of rehearsal shall commence on June 2, 1926, or not later than one week thereafter and shall end on a date to be determined by the manager. '
"(2.) The engagement shall commence on June 12 (sic), 1926, or on some day not later than one week thereafter and the run of the play shall commence on the day on which the play is produced.
"4. The manager will pay to the artist - (a) during the period of rehearsal such sums (if any) as the artist shall be entitled to in accordance with the regulations set out in the schedule hereto; and (b) from the commencement of the run of the play the sum of £100 for every week as defined in the said regulations and such sums as are therein mentioned for extra performances.
"5. The regulations set out in the schedule hereto shall be deemed to form part of this agreement and shall be binding on the parties hereto."
The schedule contained the following clauses:-
"(iv) 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 .... her talent for the benefit of any other company, institution, or person without the written consent of the manager first had and obtained." . . . .
"(x) If for any reason the manager shall find himself unable to produce the play he shall be at liberty by notice in writing to the artist to terminate the engagement, but in the event of the engagement being so determined the manager shall pay to the artist in satisfaction of all claims of salary under this agreement a. sum equal to the amount of the remuneration and salary to which the artist would have become entitled if the period of rehearsal had continued up to the day specified in the contract for the production of the play and if the run of the play had commenced on that day and continued for 14 days thereafter."
The plaintiff had left the United States and come to England hoping to acquire a reputation in London which she believed would increase the popularity she already enjoyed in America. To the knowledge of both parties it was important to her to obtain an engagement to play and actually to appear in the part of Lolotte at Daly's Theatre; and it would be very injurious - one of the defendants' witnesses admitted that it would be "a disaster" - to her reputation if, after it was publicly known that she was engaged to play the part, she was not permitted to do so. Before the plaintiff was willing to sign the above agreement she obtained a promise from the defendant White that her name should appear at the head of the cast, and up to the date of the dress rehearsal, June 11, her name appeared there and upon the electric light outside the theatre and elsewhere. On June 12, the day fixed for the commencement of her engagement, the defendants refused to allow the plaintiff to appear in the play either on that day or within seven days thereafter or at all.
She claimed that she had been damaged in her reputation by not being allowed to appear as announced in the advertisements, and that she had suffered serious loss in consequence of the defendants' act in refusing to allow her to appear. The play, or a revised version of it, ran for thirty-two weeks, another actress appearing in the part of Lolotte.
With regard to the claim for libel, on Thursday, July 29, 1926, the defendants wrote the following letter to the plaintiff:
"Dear Miss Marbe, I have received your letter of July 26 on which I have seen Mr. White. In view of the statement you made at our first interview when you represented yourself as being well known and in great demand, it is a little difficult to reconcile these with the position which yon now disclose, and which indeed is emphasized by the fact that [since] we intimated that your services would not be required for 'Yvonne,' you have not succeeded in obtaining any employment. The salary we agreed to pay was based on these representations of your position and the engagements which you intimated were open to you. It is manifest therefore that the proper course for you to become known and to win a reputation is to go on tour with our No.1 company which has a reputation of the highest and in which from time to time positions are occupied by artistes of the highest class. We are not prepared to continue the present position and to pay you a salary of £100 per week while you endeavour to establish a reputation by singing at charity performances or on the radio and we must ask you therefore to agree to accept a position in our touring company at the salary called for by your agreement and failing your immediate acceptance of this we shall stop all further payments. I must ask you for a reply to this by Friday morning. Yours faithfully, For and on behalf of George Edwardes (Daly's Theatre), Ld., Cecil Paget, General Manager."
This letter was handed to a typist in the defendants' office, who transcribed it by means of a type-writing machine."
Horridge J., following Pullman v. Hill [1891] 1 Q. B. 524., held that the letter was published to the typist, but, on the authority of Boxsius v. Goblet [1894] 1 Q. B. 842, Edmondson v. Birch [1907] 1 K. B. 371, and Roff v. British and French Chemical Co. [1918] 2 K. B. 677, that it was published on a privileged occasion. At the close of the plaintiff's case the learned judge was asked to rule that there was no evidence of malice to go to the jury. He asked the defendants' counsel whether they proposed to call evidence, and they said they did. The learned judge then declined to rule on the question of malice until he had heard the whole case. From the evidence for the defendants it appeared that the letter of July 29 was settled by a member of the firm of solicitors who represented them; that Mr. Cecil Paget did not hold the opinion that the plaintiff had procured the engagement by means of false representations concerning her reputation, and that he was sorry his name appeared at the foot of the letter. In another letter, dated August 7 and written by the defendants' solicitors to the plaintiff's solicitors, the plaintiff was accused of declining to take the employment at a salary which would involve her in no loss ; and the letter went on to say "but on the contrary she prefers to enjoy herself in London and expects to receive the full salary under the agreement without working for it." In cross-examination Cecil Paget admitted that he had no reason to believe that statement was true. Upon this the learned judge ruled that there was evidence of malice to go to the jury. He left to the jury four questions which, with the answers of the jury thereto, were as follows:-
Upon these findings judgment was entered for the plaintiff for £3100 beyond the £2557 paid into Court.
The defendants appealed.
Neilson K.C. and Croom-Johnson K.C. for the appellants.
It may yet be argued in the House of Lords that there was no publication of the letter of July 29, 1926, containing the alleged libel; but presumably this Court would follow its former decision in Pullman v. Hill [1891] 1 Q.B. 524 and would hold that
there was a publication to the appellants' typist. But if there
was a publication it took place upon a privileged occasion, and the respondent failed to offer any evidence of malice. The learned judge ought therefore to have withdrawn the case from the jury and to have entered judgment for the defendants. The objection was duly taken at the trial.
[BANKES L.J. Were you content to rely on it and call no evidence?]
The appellants had to call evidence on the other branch of the case. In these circumstances the learned judge ought to have ruled on the question of malice at the close of the respondent's case. But when the appellants' evidence was heard it was consistent equally with the absence and with the presence of malice, and even then the question ought to have been withdrawn from the jury.
With regard to the alleged breach of contract, there was no express contract that the appellants should unconditionally allow the respondent to play the part of Lolotte, whether it suited them to do so or not and even if the rehearsals showed that she was unsuited for the part. The respondent was only engaged to play "at such times and at such theatres... as the manager" should "from time to time direct." The contract therefore amounted merely to a retainer at £100 a week, and the appellants performed their obligation when they paid the respondent the agreed salary. A contract of employment is not prima facie a contract to find employment: Turner v. Sawdon [1901] 2 K.B. 653. Fechter v. Montgomery (1863) 33 Beav. 22 is distinguishable. There the plaintiff had been offered the part, and .besides the written engagement there was an oral communication between the parties from which the Court inferred that the plaintiff was to have an opportunity of acting. In Bunning v. Lyric Theatre (1894) 71 L.T. 396 the contract showed that the plaintiff, a musical conductor, had bargained for an opportunity of appearing in public. In Newman v. Gatti (1907) 24 Times L.R. 18 it was held that an actress who was engaged to understudy a part had no right to appear in the part in the absence of her principal.
The collateral agreement relied on by the respondent, namely that she should be prominently advertised, carries her case no further, for it must stand or fall with the contract of employment and could only be a contract to advertise the respondent if she played the part of Lolotte. It was therefore in no sense collateral to the main agreement but could only have been made as part of that agreement. It follows that the learned judge ought not to have admitted evidence of this so-called collateral agreement.
If there was any breach of contract by the appellants, still the verdict cannot stand, first because damages for loss of publicity are not recoverable: Turpin v. Victoria Palace [1918] 2 K.B. 653, and secondly because even if they were the verdict is excessive: Johnston v. Great Western Ry. Co. [1904] 2 K.B. 250.
Sir Patrick Hastings K.C. and Richard O'Sullivan were heard on the amount of the verdict only.
BANKES L.J. This is an appeal from the verdict of a special jury and the judgment entered thereon by Horridge J. in favour of the plaintiff. The action was brought for damages in respect of two separate causes of action, libel and breach of a contract of employment. The jury found in favour of the plaintiff on both claims and awarded £100 for the libel and £3000 for the breach of contract. The appeal raises a number of points. With regard to the libel, it was said, first that there was no evidence of publication, and secondly that there was no evidence of malice, and that the judge at the trial ought to have so ruled; and with ; regard to the breach of contract it was said that he had misconstrued the contract, that there was no evidence of a collateral contract relied on by the plaintiff, that the jury were misdirected in several particulars, and that the damages awarded were excessive.
The plaintiff was a lady who had already established a reputation in America as an actress. She came to Europe hoping to acquire a reputation in a London theatre, because that would tend to enhance her prestige in America. As Daly's Theatre was thought to be particularly suitable for her purposes she was introduced to the general manager of that theatre and in the result she obtained a definite engagement to play in a definite part in a specified play. It was agreed that she should receive a salary of £100 a week, which was considerably less than she had been receiving in America, and she made two stipulations: (1.) that the agreement should be signed before the rehearsals began, and (2.) that, as a condition of her taking the engagement at all, she should be advertised in a prominent and attractive manner. The agreement was signed; the collateral agreement about advertising was duly carried out; the rehearsals commenced, and all went smoothly and satisfactorily until the day of the dress rehearsal. And then she was told that she was not to play the part, because a lady who played an important part in the piece would not allow her to perform, the reason assigned being that if the plaintiff was allowed to act she would be overshadowing this lady, who could not tolerate that state of things. This announcement was made to the plaintiff with great regret by Mr. Paget, the general manager of the defendants. A correspondence followed between the defendants and the plaintiff. First the defendants took up the position that the plaintiff was under some duty towards them to take an engagement elsewhere; then she was accused of not making any effort to obtain an engagement; and when she wrote and protested that she was doing her best to find an engagement the defendants wrote suggesting that her reputation was not what she had represented it to be, for if it was she would have found an engagement by that time. That letter was the foundation of the claim for libel. The plaintiff could obtain no suitable engagement, and in August, 1926, she brought this action.
The defence was that the defendants were not bound to provide her with employment, i.e., to allow her to play the particular part for which she had been engaged, or any other part; they also suggested that she was not well qualified to play the particular part, and finally they paid into Court the whole amount of the agreed salary for the run of the play. So the defendants do not deny that they were liable for breach of contract; what they say is that the plaintiff is not entitled to any damages for the libel or for her loss of that publicity and that enhanced reputation which she would have acquired if she had been allowed to act the part. They also say that so far as concerns any promise to advertise her in a prominent position there was nothing in the shape of a contract that they should do that.
I come now to the trial of the action. Taking the libel first, it is clear that this Court is bound to hold that there was a publication of the letter of July 29, and that it was published on an occasion of qualified privilege. But Mr. Neilson for the defendants contended that at the end of the plaintiff's case there was no evidence that the defendants in publishing the letter were actuated by malice; that it was for the judge to rule at that stage whether there was evidence to go to the jury, and that if he had done that the Plaintiff must have failed. That argument has been addressed, to the Court on several occasions and it has been held, and I repeat now, that according to the present practice the judge has a discretion whether he will rule on the matter at the close of the plaintiff's case or whether he will defer ruling until the whole of the evidence has been called. In the latter event the defendant's counsel must then elect whether he will rely on his objection that there is no evidence of malice, or call evidence for the defendant at the risk of supplying evidence for the plaintiff which the jury may accept as proving malice. No doubt that puts the defendant in a difficulty where he has to meet a case of breach of contract as well as of libel, because he haw to call evidence to meet the charge of having broken the contract. That is a matter which the judge takes into consideration in deciding when he will rule on the question of malice; but we cannot interfere with the ruling on the ground that the learned judge had no right to do what he did. When Mr. Paget was called there was abundant evidence of malice, because he admitted that he did not believe the suggestion contained in the letter that the plaintiff obtained the engagement by means of misrepresentations. But the matter does not rest solely on Paget's evidence. The plaintiff's evidence in my view afforded evidence of malice, because it went to show that Paget's real reason for not allowing the plaintiff to act was inconsistent with the reason suggested in the letter, and so far from ruling that there was no evidence of malice at the end of the plaintiff's case the learned judge ought, in my opinion, if he ruled at all at that stage, to have ruled that there was such evidence.
Then with regard to the other part of the case. Much has been said about implied terms in theatrical contracts. It seems to me that contracts of employment or engagement - it matters not which word is used - fall into two classes which must be distinguished. There are well known occupations in which when a person is employed or engaged there is no implied agreement that he shall be actually given work to do. A contract of domestic service contains no implied term that the master shall give the servant work to do, or that the servant shall have a cause of action if he is not given enough work. Similarly a doctor or a solicitor may be employed or engaged for a year, but the person who employs is not bound to be ill or to become involved in litigation in order that the other party may have something to do. A retainer, or call upon the services of another, is also an example; it does not imply an undertaking to utilize the services but merely a right to utilize them when necessary or convenient.
But there is another class of contracts which is quite different and in which it is not necessary to introduce any implied term; these are contracts of employment to do a particular specified thing. For example, a man may be engaged to come and clean windows on a certain day. If when he comes he is told he is not to do the work, there is a breach of contract. The engagement of an actress to play a particular part is an instance of this latter class. In my view no question of implied obligation arises here; the obligation is express. The manager who engages an actress to play a particular part and then refuses to allow her to play it commits a breach of contract. The plaintiff in this case was engaged to rehearse and play the part of Lolotte in the play called "Yvonne." In the absence of some custom to vary the plain meaning of those words the Court can only give them their plain meaning. The question begins and ends there. There was a breach of that contract.
It was said that the plaintiff was not allowed to play the part because she was not suited to the part. If that suggestion had been proved it might have raised a question; but it was not proved and so the question does not arise. Then it was said that the engagement was to play the part "at such times and at such theatres .... as the manager shall from time to time direct" and that is true, but those words do not entitle the manager to say what he did say - namely, that the plaintiff should not play the part at any time or at any place. In short there was a clear breach of contract.
Then what is the measure of damages? The learned judge is said to have misdirected the jury on this part of the case. Now there were special circumstances, well known to the defendants, attending the making of this contract, among them a collateral agreement which was of particular importance to the plaintiff. Upon the subject of collateral agreements I should like to refer to Newman v. Gatti 24 Times L.R. 18., where the managers of a theatre engaged an actress for the run of a certain play at the theatre to understudy the principal actress at a certain salary. The principal lady being unable to play, the understudy claimed the right to play her part, which the managers refused. Evidence was given on behalf of the defendants that an understudy was not entitled as of right to play the principal's part if the latter was absent. The plaintiff alleged that there was a collateral contract that she should play the part in the absence of the principal lady. Upon this point the judgment of Vaughan Williams L.J. is reported in these words (l): "It was said that there was a collateral contract, and that the question whether there was or was not such a contract was a question for the jury. He entirely agreed that that would be so, if there was any evidence of such a contract. In his opinion there was no evidence of any such contract. Sometimes one had a collateral contract, the consideration for which was the entering into the principal contract, as, for instance, when one party said that he would not enter into the contract unless the other party made a collateral contract with him." In that case the defendants had given evidence that in the theatrical profession the word "understudy" had a particular meaning; and in the result Vaughan Williams L.J. was of opinion that "once the meaning of the word 'understudy' was made clear, the construction of the contract was for the Court; and when they construed it it became plain that the right which the plaintiff claimed in the action - namely, to play the part if Miss May was absent, was in no way referred to or contained in the contract." In the present case there is no evidence of any custom in the profession or any customary meaning of the language of the contract, while on the other hand it is clear that there was a collateral agreement that the plaintiff should be prominently advertised and that she only entered into the principal contract on condition that the defendants would comply with her requirements in this respect. In my opinion the evidence of this collateral agreement was properly admitted in accordance with the authorities which permit evidence to be given of a verbal agreement collateral to a principal contract in writing, and that there was no misdirection by the learned judge upon this point.
Then how far does the existence of this collateral contract affect the damages? In my opinion it is sufficiently established that where there has been a breach of a contract to employ an actress, whose reputation depends on the continued and successful practice of her art, and where the engagement is accompanied by promises of widespread publicity and advertisement which will probably lead to future opportunities following on successful performance, the Court recognizes that the damages for that breach may properly include such a sum as a jury may award to compensate the plaintiff for the loss of the reputation which would have been acquired, or damage to reputation already acquired, or, to use another expression, for loss of publicity.
The next matter to be considered is the amount awarded by the jury. £3000 is a large sum. I have felt some doubt whether it does not include something in the way of punitive damages. If I was convinced that it did, I should feel bound to say that the verdict could not stand, because the jury would then have taken into account matters not properly within their cognizance in view of the issue before them on this part of the case - namely, what was the monetary loss sustained by the plaintiff through not being allowed to appear in public, and perhaps to achieve a public success, in this part? Was there before the jury material on which they could properly arrive at that large sum as the measure of that loss? Eliminating all matters of prejudice and indignation at the conduct of the defendants, it is to be observed that this plaintiff, who had established a reputation in America, had failed to obtain a suitable engagement within three months after the play had ceased to run. The defendants could not deny that the events which had happened would prejudice her chance of obtaining a suitable engagement. The jury might properly estimate how much longer the effects of the defendants' conduct were likely to last, and might decide that the mere salary was not adequate compensation; and taking into consideration the large salary the plaintiff was earning I cannot say that the amount they have awarded was so large as to show that it must include matters which ought not to have been taken into account. For these reasons I think the appeal must be dismissed.
ATKIN L.J. I am of the same opinion. To deal first with the libel, upon the first point raised by the defendants - namely, that there was no evidence of malice, it is only necessary to point out that the defendants' general manager in his evidence made two admissions: first that the letter of July 29, 1926, meant that it was difficult to believe the representations the plaintiff had made concerning her reputation, and secondly that he was quite sure she had made no false representations, and that if the letter meant that she had made misrepresentations, that was untrue. Therefore there was evidence that the defendants' servant published defamatory statements in that letter without an honest belief that they were true. That is evidence of malice, and in my view the !earned judge's direction to the jury was not sufficiently favourable to the plaintiff.
The other cause of action raises a very important question, whether an actress, who has been engaged to play a particular part, is entitled to damages beyond the mere salary named as her remuneration in the contract of engagement. Contracts of employment are not all to be referred to one class. In Turner v. Sawdon [1901] 2 K.B. 653 the plaintiff was engaged by the defendant as a representative salesman to solicit orders for their goods. He complained that he was not allowed to represent them and claimed damages beyond his agreed salary. But it was held that there was no promise to find continuous employment of the kind mentioned in the contract, or any employment, and that all the defendants had done was to engage the plaintiff to join their staff without any obligation to provide him with work. The Court seem to have regarded his position as analogous to that of a domestic servant, in whose case it would be contrary to the intention of the parties that the master should be bound to provide work for the servant to do. But, as pointed out by Stirling L.J., there is another class of cases, where the master may be under an implied obligation to give actual work to be done by the person employed, and so afford him an opportunity of displaying his abilities, as in the case of theatrical engagements.
If the contract is one which includes an obligation to give work, for breach of that obligation damages must be recovered beyond the amount agreed for the employee's salary. In Fechter v. Montgomery (33 Beav. 22) the plaintiff had engaged the defendant by a letter written on the plaintiff's behalf in these terms: "I am directed by Mr. Fechter to offer you an engagement at the Lyceum theatre for two years, commencing January 1, 1863, at a salary of £7 per week for the first, £10 per week for the second year; it being thoroughly understood that no advantage will be taken of the confidence you have reposed in Mr. Fechter." Some months went by and Mr. Montgomery was not given a part. Being greatly dissatisfied he accepted an engagement to act at another theatre, whereupon Fechter claimed an injunction to restrain him from acting elsewhere than at the Lyceum theatre, contending, as the appellants do in the present case; that so long as the stipulated salary was regularly paid there was no obligation on the part of the plaintiff to avail himself of the defendant's services. But Sir John Romilly M.R. held that the proper inference to be drawn from the correspondence, and from a conversation which took place before the date of the letter mentioned above was that Fechter had agreed to do something more than merely pay the stipulated salary. The Master of the Rolls said (33 Beav. 26): "I am of opinion that it was an agreement entered into by Mr. Fechter to employ Mr. Montgomery, during reasonable time, to act at this theatre, and that it was an agreement on the other side that he, Mr. Montgomery, should not perform elsewhere without the consent of Mr. Fechter; that there was a mutuality in the agreement entered into on both sides, on the one side that he should have an opportunity of displaying what his abilities and talents were before a London audience, and on the other side, that he should not act elsewhere, unless with the permission of the plaintiff." So, being of opinion that the plaintiff had himself broken the agreement the Master of the Rolls refused the injunction.
Another important case is Grimston v. Cunningham [1894] 1 Q. B. 125. There the defendant entered into an agreement with the plaintiff, who was professionally known as W. H. Kendal, in these terms: "And furthermore I agree to engage with Mr. W. H. Kendal to act and to understudy as a member of his company, on tour in the United States of America and Canada, for a period of 25 weeks, or longer if required, but not to exceed 40 weeks, commencing on or about October 9, 1893, at a weekly salary of £10." The plaintiff's company went to America and in October, 1803, produced "The Second Mrs. Tanqueray," in which the defendant was not given a part. He made up his mind that he was not going to be given a part, and he threw up his engagement, sailed for England, and accepted a part in a London theatre. The plaintiff brought an action to restrain him from acting without the plaintiff's permission, and the injunction was granted on the ground that the defendant had left the company before a reasonable time had elapsed to enable the Court to judge whether the plaintiff intended to perform his part of the contract. Wills J., referring to Fechter v. Montgomery 33 Beav. 22, said [1894] 1 Q.B. 130, 131: "In that case the defendant was engaged to act at the Lyceum theatre for a period of two years, and the agreement was construed by the Court to mean on the one side that the defendant should have an opportunity of displaying what his abilities and talents were before a London audience, and on the other side that he would not act elsewhere without the permission of the plaintiff. Five months after the agreement had been entered into no part had been allotted to the defendant, and for this reason the Master of the Rolls came to the conclusion that the plaintiff's own engagement had been broken, and therefore he could not enforce the negative stipulation on the part of the defendant. In the present case, what is the obligation on the part of the plaintiff contained in the contract? The plaintiff engages the defendant to act and understudy; but that does not mean that he undertakes to provide a part for him in every play that may be produced. That was not the ground on which the decision in Fechter v. Montgomery 33 Beav. 32 proceeded. In that case the plaintiff was bound to give the defendant a reasonable opportunity of acting, and failed to do so. But a manager cannot be expected to give every actor whom he engages a part in every play which may be produced, and generally to attempt to do so would not be to the benefit of the actor. All that the defendant can be entitled to is to have a reasonable opportunity of acting and understudying, having regard to all the circumstances of the case." These are two cases in which the actor or other artist was engaged in general terms without mention of any particular part, in which however it has been held that he has a right to a reasonable opportunity of exercising his art though the time and circumstances may be in the discretion of the manager of the theatre. In Bunning v. Lyric Theatre, Ld. 71 L. T. 306 the contract was in these terms: " The said Herbert Bunning agrees to act as musical director of the orchestra for London, Brighton, or Crystal Palace, in consideration of the management paying him a weekly salary of £8, to be increased to £10 and afterwards to £12, making a total engagement for three years. "No salary shall be paid for any part of the time of this agreement during which the theatre is closed, the management having the right to close the theatre at any time they think fit... Name to be announced in Standard and Telegraph, and on bills and programmes." The plaintiff claimed damages because he had not been permitted to conduct at the theatre nor been called upon to perform the duties of his office, though his salary had been duly paid. Stirling J. in giving judgment said 71 L. T. 397, 398: " It is expressly stipulated that the plaintiff's name shall appear as musical director, and what is intended is, that such a state of things shall exist that the defendants shall be in the position truly to make such an announcement, or, in other words, that they shall employ him in that capacity"; and judgment was given for the plaintiff for £52.10s., although his salary had been paid. Thus there is a current of authority for holding that, where managers agree that a person shall play a part, that is a substantial term of the contract which must be fulfilled or for the breach of which damages over and above the agreed salary may be recovered.
The only breach in the chain is the judgment of McCardie J. in Turpin v. Victoria Palace [1918] 2 K. B. 539. There the plaintiff and the defendants had entered into a contract in a standard form. The material words are not set out verbatim in the report, but it seems that the defendants engaged the plaintiff, and the plaintiff accepted the engagement and agreed to perform at the Victoria Palace at two performances every evening for the periods stated in the agreement during the four years therein mentioned at a salary of £25 a week. The plaintiff was not for certain periods to perform at any place of amusement within a specified radius; if she should fail, except through illness or accident, to perform at any performance, she was to pay a. sum as liquidated damages; she was to send the defendants particulars of all matters for programmes, billing and advertisements, and the words of all songs to be used during the engagement; the management had power to prohibit any part of the performance which they considered unsuitable or displeasing to the audience, and also the right to determine the position of the plaintiff's name, the size and nature of the type, and the description of the various items in the programmes, billing, and advertisements. The learned judge said (547): "It is essential to inquire whether the present contract imposes on the defendants any obligation to allow the plaintiff to appear at their music hall on the dates fixed by the agreement," and he came to the conclusion that it did not. It may be that the agreement contained some special term which does not appear in the report. If that is not so, then as at present advised I am not prepared to agree with this conclusion of the learned judge. I should have thought the agreement would impose an obligation on the defendants to allow the plaintiff to perform, even if it had contained no clause restraining her from performing elsewhere; but with that clause it would, as it seems to me, have no meaning for the plaintiff unless it imposed that obligation upon the defendants.
In Newman v. Gatti 24 Times L. R. 18 the plaintiff was engaged for the run of a play which was to follow a named play at a named theatre. The engagement was to understudy a named actress. The agreement was performed if the plaintiff was allowed to understudy. The only question was whether a person who was understudying another had a right to play the part in the absence of the other. That was a matter of theatrical usage upon which evidence was given at the trial, and the evidence was all one way, that there was no such right.
Does the present case come within that class of cases where the managers of a theatre agree that an actor or actress shall play in a part? Nothing could be plainer than the answer. By the terms of the contract "The manager engages the artist to rehearse and play the part of Lolotte in the play called 'Yvonne'.... and the artist accepts the said engagement upon the terms and conditions herein appearing. The engagement shall commence on June 12, 1926." Her weekly salary commenced on the same day. That is a promise that the plaintiff should play that part. She might have refused to play any other part. What might have happened if she had proved incompetent to play it I do not decide. The question does not arise. Here was a plain obligation to allow the plaintiff to play the part of Lolotte, and it was broken and there is no reason why for a breach of that contract in not allowing her to play that part she should not be entitled to substantial damages. Moreover there has clearly been a breach of the contract to advertise the plaintiff in a prominent place, and on the authority of Bunning's case 71 L. T. 396 the parties must have intended that such a state of things should exist as to enable the defendants truly to make the announcement contained in the advertisements, or, in other words, that she should play the part.
I had some doubt about the amount of damages awarded by the jury; but it must be remembered that the plaintiff was an American actress with a high reputation in her own country wishing to acquire a reputation in England also; that she has lost this opportunity by the act of the defendants, who admit that to be advertised as about to appear and to be prevented at the last moment from appearing would be disastrous to the reputation she wished to acquire, and her existing reputation may also be considered. In these circumstances it cannot be said that the damages are beyond what a jury acting as reasonable persons might award. For these reasons the appeal must in my opinion be dismissed.
LAWRENCE L.J. The solution of the main question in this case depends upon the true meaning of the contract between the parties. The authorities which have been cited are concerned with the rights of parties to contracts differing both in form and in substance from the contract here, and therefore are not of much assistance. Contracts of employment fall under two categories; first those in which the only obligation imposed upon the employer is the payment of the agreed remuneration, and no duty is cast upon the employer to give active occupation - this no doubt is the more usual form of contract; and secondly those in which the employer engages not only to pay the agreed remuneration but also to afford to the employee an opportunity of doing the work for which he is engaged. Whether a given contract falls within the first or second category depends primarily on the express words of the contract, but may also depend upon the character of the employment, and possibly upon the amount and nature of the remuneration. The contract in the present case is between a theatrical manager and an actress, whereby the manager agrees to engage the actress to rehearse and play a particular part in a named play; and the commencement and duration of the employment are definitely fixed and cover the period of rehearsal and the run of the play. The agreed remuneration is £100 a week from the commencement of the run of the play. The manager also entered into a collateral agreement with the plaintiff whereby it was agreed that in consideration of the plaintiff entering into the principal contract her name would be advertised in a prominent position.
The word "engage" is a flexible term; in contracts of employment it means "agree to employ." The expressions "engage" or "agree to employ" in such contracts may mean simply that the employer agrees to retain the services of the employee, or they may mean that he agrees to afford the employee an opportunity of doing the work for which he is engaged. Having regard to the fact that it is of vital importance to an actress that she should appear before the public as much as possible and that therefore her employment should be real, and having regard to the definite character of the engagement in this case, I have come to the conclusion that on the true construction of the contract the defendants agreed to afford to the plaintiff the opportunity of playing the named part if the play were produced, and that the contract was not merely that upon payment of £100 a week during the run of the play the defendants were to be entitled to call or not to call upon the services of the plaintiff according to their will and pleasure. Mr. Neilson contended that the words "at such times and at such theatres .... as the manager shall from time to time direct" in clause 1 of the agreement operated to give the manager an option to say whether he would employ the plaintiff or not, no matter whether the run of the play had commenced or not. In my opinion that argument is ill founded. Read with the rest of the contract, those words mean that the manager shall have the direction and control of the times and places at which the play shall be produced, but that is in entire consonance and accord with a binding obligation to employ the plaintiff. The manager may direct rehearsals to be held at various theatres and if the play is being acted at two theatres he may say at which theatre she shall act; but he has no right to say she shall not act at all. To give the words that meaning would make them inconsistent with the primary obligation of the manager to employ the actress. If that be the true construction of the contract the obligation to give employment is not merely an implied but an express obligation, and it follows that there are two separate engagements on the part of the employers, one to pay the agreed salary and the other to afford the plaintiff the opportunity of acting the part. There has been no breach of the agreement to pay the salary, but there has been a breach of the agreement to employ. In my opinion there has also been a breach of the collateral agreement; but whether that be so or not, the jury were entitled to award damages for the substantial breach of the principal contract. The verdict is large in amount, but after considering all the facts I cannot say they are so large as to lead the Court to the conclusion that the jury were misled by the eloquence of counsel or otherwise into assessing the damages upon a wrong basis.
With regard to the libel I agree that the learned judge exercised a wise discretion in declining to rule on the question of malice until he had heard the defendants' case. That case when heard in my judgment disclosed evidence of malice to go to the jury. I agree therefore that the appeal should be dismissed.
Appeal dismissed.
Solicitors for appellants: Speechly, Mumford & Craig.
Solicitors for respondent: Deacon & Co.
W.H.G.
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