Contract - Theatrical Engagement - Construction - Breach - Damages-Loss of Publicity - Option as to Hall at which Actor should appear - Misdirection of Jury.
The plaintiff, who was a variety artiste, was engaged by the defendant company to appear and perform a certain sketch at the London Palladium for three consecutive weeks, commencing July 6, 1931, at a gross salary of £300 per week, he providing the supporting actors and properties. The contract contained a clause by which the plaintiff agreed, should the defendants so desire, to transfer the engagement to any hall owned controlled by or associated with the defendants either in London or the provinces. The plaintiff had a preliminary trial week at Portsmouth, and after viewing a performance there the defendants on July 2, 1931. gave the plaintiff notice that they would not allow him to perform at the London Palladium under the agreement. The plaintiff sued the defendants claiming damages for breach of contract, including loss of publicity and reputation. At the trial counsel for the plaintiff suggested to the jury that the plaintiff had thereby suffered damage to his reputation. The judge in summing up the case told the jury that they must put some figure upon the loss of publicity because the plaintiff was not allowed to perform at the Palladium. He did not refer in his summing-up to the option in the contract. The jury returned a verdict for the plaintiff for the salary he had lost and £1000 for loss of publicity.
On Appeal by the defendants:-
Held, that damage to a reputation already existing by not allowing an actor to appear in accordance with his contract was not a matter which could be taken into consideration by a jury in assessing damages for breach of contract. What had to be taken into consideration was whether if the actor had been allowed to appear that appearance would have given him an enhanced reputation. That distinction had not been explained to the jury by the judge, and therefore there would have to be a new trial on the question of damages.
Statement of Bankes L.J. in Marbe v. George Edwardes (Daly's Theatre Ld. [1928] 1 K. B. 289, 281, that a jury might award a plaintiff compensation for damage to reputation already acquired, dissented from.
Herbert Clayton & Jack Waller Ld. v. Oliver [1930] A. C. 209 explained and followed.
Held, further, by Scrutton and Romer L.JJ., that the plaintiff under the contract no absolute right to appear at the Palladium; that the defendants had an option as to the hall at which he should appear; that in assessing damages for the breach of a contract which the defendants could at their option perform in alternative ways it must be assumed that the defendants would perform it in the way most beneficial to themselves and not in the way that would be most beneficial to the plaintiff; and that as there had been no direction by the judge with regard to this there must be a new trial on this ground also.
Cockburn v. Alexander (1848) 6 C. B. 791, 814 and Robinson v. Robinson (1861) 1 D. M. & G. 247, 257 followed.
APPEAL from a judgment of the Lord Chief Justice on a trial with a special jury.
The plaintiff, Withers, was a variety artiste and performer, who had a sketch which depended very largely upon the plaintiff's skill as an actor. He was practically the only actor in the piece, and the success of the sketch depended on the exact timing of a number of properties, including other artistes, with the acting of the plaintiff. Unless the properties were exact and the artistes timed their acts exactly the piece would be a disastrous failure. The plaintiff had been in England before with a similar sketch, and had had a great success, and in consequence he continued his success in the United States when he returned there. After a considerable interval of time the plaintiff desired to come to England, and the defendant company, which controlled the Palladium and other theatres, was ready to engage him.
The contract between the plaintiff and the defendant company, which was dated June l9, l93l, provided that he should appear and perform his sketch at the London Palladium for three consecutive weeks commencing July 6, 1931, at a gross salary of £300 per week, he providing the supporting, actors and properties. On the margin of the printed contract was the following clause, initialled by the plaintiff: "In consideration of this agreement it is understood and agreed that notwithstanding anything in this agreement to the contrary, should the management so desire, the artiste agrees to transfer these engagements to any hall owned, controlled by, or associated with the management either in London or in the provinces without charging transfer expenses." During the negotiations the plaintiff was told by the defendants: "We may give you two weeks at the Palladium and one week at another hall. This will, of course, depend on how you stand up at the Palladium during the first two weeks."
The plaintiff did not wish to start at once at the Palladium with a company which he engaged in England, as it required considerable rehearsal to get the sketch to work neatly and to time. He accordingly asked to have a preliminary trial week at Portsmouth at a considerably lower salary. He started on the week's performance at Portsmouth, and on the Monday the performance went a wrong: the properties did not work at the right time, and the supporting artistes did not work with the properties at the right time. On Wednesday, July 1, the Palladium authorities went down to Portsmouth and saw the performance, and came to the conclusion that the sketch would not be in a fit state to be performed at the Palladium on the following Monday, and they communicated their decision to the plaintiff, who protested. On July 2, 1931, the defendants gave the plaintiff written notice that they did not intend to allow him to perform at the London Palladium under the agreement. The plaintiff thereupon brought the present action, claiming that by reason of the defendants' breach and repudiation of the contract he had sustained loss and damage, including loss of publicity and reputation as a variety artiste and performer.
The defendants alleged that the plaintiff agreed on Wednesday, July 1, that his sketch would not be in a fit state to appear at the Palladium on the following Monday. The plaintiff denied that he so agreed and the jury found that he did not agree.
No question was left to the jury whether the plaintiff was ready and willing to produce on Monday, July 6, at the Palladium the sketch in such a condition that it was fit to appear at a high class place of entertainment like the Palladium.
It was agreed that the plaintiff's expenses were £75 per week, and that his net profit would therefore be £225 per week.
Counsel for the plaintiff in his final speech to the jury said: "Members of the jury, does it do a man any good to be turned out of the greatest hall in England? If the accurate and quiet, sober truth is told about it, what good does it do, and what harm does it do him? Do you think that everybody who discusses this matter in England and America will confine themselves to the strict and accurate truth? It will be known that the show was a failure and that the show was not put on at the Palladium."
The Lord Chief Justice in his summing-up to the jury said: "No doubt it is a serious matter if it is known that an artiste is expected to appear and does not appear at a well known music-hall like the Palladium, and you would have to put some figure upon that loss of publicity." He did not allude to the fact that the defendants had under their contract an option as to the halls at which the plaintiff should appear.
The jury returned a verdict for the plaintiff for £675 loss of profit for three weeks and £1000 for loss of publicity.
The defendants appealed.
Sir Patrick Hastings K.C. and Van Breda for the appellants. The appeal of the defendants is as to the sum of £1000 awarded to the plaintiff for loss of publicity. The law as defined in Marbe v. George Edwardes (Daly's Theatre), Ld. [1928] 1 K. B. 269, and Herbert Clayton & Jack Waller, Ld. v. Oliver [1930] A. C. 209, is that if an actor or artiste is, in breach of his contract, not allowed to appear at a particular theatre or music-hall by the management he is entitled to recover, not merely for the loss of the salary he would have earned, but also damages for the loss of reputation which he would have acquired if he had been allowed to appear. But he cannot recover damages for injury to a reputation which he has already acquired. That would be contrary to Addis v. Gramophone Co. [1909] A. C. 488, where Lord Loreburn L.C. said (Ibid. 491): "If there be a dismissal without notice the employer must pay an indemnity; but that indemnity cannot include compensation either for the injured feelings of the servant, or for the loss he may sustain from the fact that his having been dismissed of itself makes it more difficult for him to obtain fresh employment." The general rule is that damages for wrongful dismissal, like any other breach of contract, are limited to the plaintiff's pecuniary loss. Lord Buckmaster stated what it was competent for the jury to consider in assessing damages in the following terms in Clayton & Waller, Ld. v. Oliver 209: "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 puts 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." Counsel for the plaintiff in his final speech to the jury suggested to the jury that damages might be given to the plaintiff for the injury which bad been done to the reputation he already had through his not being allowed to appear at the Palladium, and the Lord Chief Justice in summing up the case misdirected the jury, because he either adopted Mr. Doughty's view of the law, or in any event he did not warn the jury against accepting that view of the law.
Further, the plaintiff was not entitled to appear at the Palladium, because the contract contains a clause under which the plaintiff agreed "to transfer these engagements to any hall owned, controlled by, or associated with the management either in London or the provinces." The defendants might, therefore, without any breach of contract, have transferred the plaintiff to one of their halls in the provinces where he would not have obtained such publicity as he would if he appeared at the Palladium. The rule is that where a contract can be performed in more than one way, that mode is adopted which is the least profitable to the plaintiff and the least burdensome to the defendant: Robinson v. Robinson 1 D. M. & G. 247, 257; Cockburn v. Alexander 6 C. B. 791, 814; Kaye Steam Navigation Co. v. Barnett (1932) 48 Times L. R. 440. The plaintiff's whole case was that he was entitled to appear at the Palladium and nowhere else, his counsel gave no effect whatever to the option clause in the contract, and the Lord Chief Justice omitted altogether to refer to the option clause in his summing-up. There ought to be a new trial by reason of the misdirection.
Doughty K.C. and F. W. Beney for the respondent:
This was a contract for a performance at the London Palladium and nowhere else. The plaintiff could only
perform his part of the contract by appearing there. It is true that under the contract the defendants had the right to give the plaintiff notice to appear at some other hall, but until that notice of variation was given the plaintiff's contract was to appear at the Palladium. By the time the contract was broken by the letter of July 2 it was a contract for the
plaintiff to play at the Palladium and nowhere else. The
fact that that option at the volition of the defendants existed does not make the damages for a breach of the contract incapable of assessment: Chaplin v. Hicks [1911] 2 K. B. 786; Sapwell v. Bass. [1910] 2 K. B. 486. The contract did not contain alternative methods
of performing it, but an opportunity to vary it. What
counsel says in his address to the jury ought not to be scanned too meticulously. Lord Loreburn, in stating the rule as to damages for wrongful dismissal in Addis v. Gramophone Co. [1909] A. C. 491, was speaking of the ordinary relationship of master and servant. That rule only partially applies in a case where the artiste who is engaged to appear at a theatre or music-hall is going to be billed. Lord Buckmaster in Clayton & Waller, Ld. v. Oliver said [1930] A. C. 220: "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."
If there is a special contract and a right to be billed, damages may be given for breach of the contract which will not be limited to loss of salary. In Marbe v. George Edwardes (Daly's Theatre), Ld., Bankes L.J. said (279, 280, 281): "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 . . . . 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. . . . 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 promise 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."
Atkin L.J. also said the same thing. He said (Ibid. 288): "The defendants . . . . 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." Therefore both Bankes and Atkin L.JJ. thought that in assessing damages the injury done to a reputation already acquired might be taken into consideration. The House of Lords in Oliver's case did not distinguish Marbe's case. Indeed, Lord Dunedin said he thought Marbe's case was.rightly decided. It would be very strange if the House of Lords in Oliver's case intended to decide that what Bankes and Atkin L.JJ. said in Marbe's case was wrong without expressly saying so. The statement by Lord Buckmaster in Oliver's case: "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," does not overrule what was said in Marbe's case. The case of an actor is different from the ordinary case of master and servant. Addis v. Gramophone Co. [1909] A. C. 488 does not apply to the loss of reputation of an artiste or actor in a theatrical case. The rule that ought to be applied to such cases is the rule in Hadley v. Baxendale (1854) 9 Ex. 341, 354.
Sir Patrick Hastings K.C. replied.
SCRUTTON L.J. This is a case of some difficulty, and I have felt during the argument some doubt as to the proper course to take. The case is one of assessment of damages for loss of publicity by an actor, and since the doctrine that damages may be given for loss of publicity was stated in Marbe v. George Edwardes (Daly's Theatre), Ld. [1928] 1 K. B. 269, and confirmed by the House of Lords in Clayton & Waller, Ld. v. Oliver [1930] A. C. 221, there is no doubt that juries have regarded such damages in a way which the Courts do not altogether approve. In Clayton & Waller, Ld. v. Oliver Lord Buckmaster thought the damages which the jury had given were extravagant just as they were in Marbe's case, but not so extravagant as to vitiate the verdict. The Court of Appeal in Marbe's case were in some doubt whether or not the damages for loss of publicity did not exceed what a jury acting as reasonable persons might award. The difficulty of the subject-matter is further shown by the fact that Lord Buckmaster in Clayton & Waller, Ld. v. Oliver thought that the case might have been more carefully handled at the trial. It is a difficult subject-matter to deal with. One is very reluctant to order new trials, but after considering the arguments put before us I have come to the conclusion that there has not been a satisfactory trial of this case as to damages, or a satisfactory direction by the learned judge. I do not think it is a case for dealing with the matter by entering judgment for the defendants upon the question of loss of publicity, or rather by striking out of the judgment for the plaintiffs the damages awarded for loss of publicity; but I thing it is a matter which on the issue of damages alone, and on no other issue, requires a new trial.
I will deal first of all shortly with the facts; secondly, with the law as established by the authorities; and, thirdly, with the course of the trial. The facts as I understand them are these: [His Lordship, having stated the facts substantially as set out above, continued:] Sir Patrick Hastings did not dispute that having regard to the verdict he must admit that there was a breach of contract, and he confined his objection to that portion of the verdict against the defendants which awarded the plaintiff £1000 for loss of publicity. He says that counsel for the plaintiff asked the jury to give damages (1.) on the basis that there was a contract binding the defendants to let Mr. Withers appear at the Palladium; and (2.) that by not being allowed to appear at the Palladium Mr. Withers lost his reputation. He had, to use Mr. Doughty's phrase, been turned out of the Palladium, and had lost his reputation by that action of the defendants. Sir Patrick Hastings says, first, that if he is right that there was no binding contract to allow Withers to appear at the Palladium, the plaintiff has given no evidence of any loss of reputation or loss of publicity that would have followed through his appearing, in accordance with a clause in the contract, at some of the other halls of the defendant company at which, under the clause of the contract I have referred to, Sir Patrick Hastings says the defendants had a right to require him to perform. Sir Patrick Hastings says, secondly, that counsel for the plaintiff asked the jury to give damages for the loss of reputation which he sustained by being turned out of the Palladium, and that the judge did not give the jury any direction as to the way in which they were to assess the damages for the admitted breach of contract.
It is a little ironical that Sir Patrick Hastings, who has had a great deal to do with shaping this doctrine of damages for loss of publicity, should now be the person who is complaining of its operation. The law stands in this way: speaking generally, in actions for wrongful dismissal and for wrongfully not allowing a service to be performed, damages are only given for the pecuniary loss thereby sustained, and the damages cannot include compensation for the manner of the dismissal, for the dismissed man's injured feelings, or for the loss that he may sustain from the fact that the dismissal of itself makes it more difficult for him to obtain fresh employment that is to say, for the fact that a dismissed man may find it more difficult to get employment in the future. That is the language of the headnote in Addis v. Gramophone Co. [1909] A. C. 488, and I think it exactly represents the judgment of Lord Loreburn, who gave a considered judgment in that case.
In 1927 came the case of Marbe v. George Edwardes (Daly's Theatre), Ld. [1928] K. B. 269. Miss Marbe bad been offered a contract to appear in a play, with a collateral contract to advertise her. She was not allowed to appear in the play, and she claimed damages for breach of contract and damages because she had not had an opportunity of appearing in the play and had lost her reputation thereby. The jury in that case gave the plaintiff £3000 damages for loss of publicity, and Lord Buckmaster in Clayton & Waller, Ld. v. Oliver [1930J A. C. 209, 220 thought the damages were extravagant. All the members of the Court of Appeal in Marbe's case Ibid. 269 were agreed that the amount of damages awarded was very heavy, but the point for consideration was whether the damages were so excessive that a new trial ought to be granted. Bankes L.J. expressed himself in this way as to the damages that should be given: "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." That statement appears to me to contemplate two classes of damage: (1.) the actress looks forward to a reputation which she will get by appearing in the play, and she claims that the defendants have deprived her of that opportunity of acquiring the reputation; (2.) the actress already has a reputation which is damaged by the defendants saying that they will not allow her to perform in the play after having engaged her to do so. Those appear to me to be two distinct classes of damage or two distinct classes of loss of reputation.
Marbe's case was regarded as a very important case to theatrical managers and actors and artistes, and another case, Clayton & Waller, Ld. v. Oliver, was taken to the House of Lords in order to obtain a decision whether Marbe's case had been rightly or wrongly decided. As I read the judgment in Clayton & Waller, Ld. v. Oliver the House of Lords thought that Bankes L.J.'s statement in Marbe's case had gone too far, and therefore, as Lord Dunedin said (Ibid. 221) in Oliver's case: "The exact words, in which" Lord Buckmaster "expressed what it was competent for the jury to consider were agreed on after consultation between all the noble Lords who heard the case." Lord Buckmaster considered that these theatrical contracts are something more than a mere contract on the actor's part to render service: opportunity for such service is contemplated and agreed to be furnished. He said (Ibid 217): "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." Having laid that down as a general rule he adds (Ibid. 220): "What are known as vindictive or exemplary damages in tort find no place in contract." It had been agreed, after consultation between the five noble Lords who heard that case, that in assessing damages "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." Lord Buckmaster went on to say: "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." Now I take that to be the considered judgment of the House of Lords. Damage to a reputation already existing by not allowing an appearance is not a matter which can be considered, but what has to be considered is whether, if the actor had been allowed to appear, that appearance would have given him publicity, and whether he has been deprived of that opportunity of appearing. That I take to be the law, and it is quite certain that that distinction, somewhat difficult to explain, but important in assessing damages in these publicity cases, was not explained to the jury at all by the learned judge.
The contract contained a clause which gave an option to the defendants either to require Mr. Withers to appear at the Palladium or to require him to appear for three weeks at the same salary at any other hall they control, and therefore, if the case has been tried, and has been left to the jury, on the assumption that, whatever the defendants say, Mr. Withers has a right against them to appear at the Palladium whether they wish it or not, it has, in my opinion, been left to the jury on the wrong basis, because it is a contract under which the defendants have an option either to require Mr. Withers to appear at the Palladium or to transfer his services to one or other of the halls which they control, which include some important halls in large towns and some halls in subordinate towns; Mr. Doughty very properly called our attention to the fact that, while matters were in negotiation, Ma. Withers was told: "We may give you two weeks at the Palladium and one week at another hall. This will, of course, depend on how you stand up at the Palladium during the first two weeks." That is to say, I suppose, that the matter depends upon how his performance went at the Palladium. Therefore it is quite clear that the contract is not a contract under which Mr. Withers has an absolute right to appear at the Palladium, it is a contract under which the defendants have an option to require the plaintiff to transfer the engagement to some other hall which they control.
Now where a defendant has alternative ways of performing a contract at his option, there is a well settled rule as to how the damages for breach of such a contract are to be assessed. One takes it as expressed in Chancery in Robinson v. Robinson 1 D. M. & G. 247, 257 as follows: "Where a man is bound by covenants to do one of two things, and does neither, there in an action by the covenantee, the measure of damage is in general the loss arising by reason of the covenantor having failed to do that which is least, not that which is most, beneficial to the covenantee." At common law Maule J. expressed it in Cockburn v. Alexander 6 C. B. 791, 814 thus: "Generally speaking, where there are several ways in which the contract might be performed, that mode is adopted which is the least profitable to the plaintiff, and the least burthensome to the defendant." A very common instance explaining how that works is this: A. undertakes to sell to B. 800 to 1200 tons of a certain . commodity; he does not supply B. with any commodity. On what basis are the damages to be assessed? They are fixed in this way. A. would perform his contract if he supplied B. 800 tons, and the damages must therefore be assessed on the basis that he has not supplied 800 tons, and not on the basis that he has not supplied 1200 tons, not on the basis that he has not supplied the average, 1OOO tons, and not on the basis that he might reasonably be expected, whatever the contract was, to supply more than 800 tons. The damages are assessed, as Maule J. says, on the basis that the defendant will perform the contract in the way most beneficial to himself and not in the way that is most beneficial to the plaintiff. The last case that Sir Patrick Hastings referred to was Kaye Steam Navigation Co. v. Barnett 48 Times L. R. 440, where there was an option as to the port of discharge, and Branson J., following and citing Robinson v. Robinson 1 D. M. & G. 247, in effect says that it must be assumed that the defendant exercised the option in the way in which it would have been most beneficial to himself and not in the way which would have been most beneficial to the plaintiff. Those two cases appeal to my mind because they both happen to have been cases of charterparties, but Romer L.J. says the case which appeals to him is that of a lease for seven, fourteen or twentyone years which is wrongfully determined at the end of five years by the landlord. On what basis are damages to be assessed? Answer: On the basis that the landlord can determine the lease in seven years, and therefore the plaintiff can only recover damages on the assumption that he had only two more years of the lease to run.
There is no explanation whatever by the learned judge or reference by counsel for the plaintiff to the way in which that measure of damage should be worked out. Counsel for the defendants twice called the attention of the learned judge to the marginal clause which gives the option to the defendants. Unfortunately there was no direction by the learned judge at all with regard to that option. Mr. Doughty says that inasmuch as the management has not in fact exercised the option that clause can have no effect. As some of the earlier cases show, it is not what in fact happens but what might happen, as the performance of the contract by the defendant, that is to decide the matter.
I have read the shorthand notes of the proceedings, and it is clear that the jury from the commencement were given erroneous views as to the way in which they ought to deal with the question of damages. When Mr. Doughty opened the case he began in this way: he asked the jury to give the plaintiff "a substantial sum for damages for the loss.of publicity, as it is called. It is not an injury to his reputation, but the loss of publicity, the loss of the commercial value of his act through his being turned down." Now that expression seems to me to be thoroughly misleading; to suggest that a man has suffered loss of reputation because he has been dismissed is just the thing which, as I understand, the House of Lords in Clayton & Waller, Ld. v. Oliver objected to in the language of Bankes L.J. in Marbe's case. At a further stage in Mr. Doughty's argument he said what, I think, he now admits to be inaccurate, although he says it was merely a rhetorical inaccuracy, and therefore does not matter; he said that the plaintiff might reasonably have expected that he would be allowed to perform at the Palladium, and therefore he must be given damages on the basis that his reasonable expectation was not fulfilled. That is not, as I understand it, the principle in regard to the measure of damages which has been laid down, which, indeed, I understand Mr. Doughty now admits. A jury ought not to be asked to award damages on what the plaintiff might have expected, but they ought to have been told that the question was what would be the most beneficial performance of the contract to the defendants, and that the damages could not exceed a basis calculated upon that; that they could not be based upon a performance of the contract that would be most beneficial to the plaintiff, and certainly not upon a performance which he might reasonably expect.
Now that being the inaccuracy, as it seems to me, in the plaintiff's presentation of the case, the defendants' counsel having twice called the attention of the judge to the clause in the contract giving the defendants an option, the learned judge summed up the case. I think it is quite obvious on reading his summing-up that he thought it was very doubtful whether the plaintiff ought to have a verdict st all. He speaks of that as being the major point, and deals with the question of damages first in very short language. He says this: " The defendants engaged the plaintiff and his company to appear and perform at the London Palladium." That, in my view, misstates the contract. The contract is to perform at the London Palladium or such other halls as the defendants may desire. The learned judge goes on: "No doubt it is a serious matter if it is known that an artiste is expected to appear and does not appear at a well known music-hall like the Palladium, and you would have to put some figure upon that loss of publicity." That seems to me to be the matter which Bankes L.J. in Marbe's case mentioned as the loss of reputation already acquired, because the actor is not allowed to perform, and it is a matter which in my view the House of Lords in Clayton & Waller, Ld. v. Oliver intended to exclude by their carefully settled statement as to what it was competent for a jury to consider in assessing damages. I entirely appreciate that, even if proper directions as to the measure of damages, following the decision of the House of Lords, had been given to the jury, one does not know what would have happened. But the fact is that the jury cannot have understood the difference which I have endeavoured to state carefully, because they received no direction at all with regard to what I agree is a difficult matter to explain to a jury, but on which we have the guidance of the House of Lords as to what should be explained to the jury. I do not think the jury were given a chance of considering it. Supposing the defendants had said that they did not propose to allow the plaintiff to perform at the Palladium, they proposed to give him three weeks at the contract salary at three other allied halls; the jury were not told that they would have to consider what would be the effect on the loss of publicity of the plaintiff's performance at three minor halls and not at the Palladium. In those circumstances I have come to the conclusion, seeing that the verdict of £1000 for loss of publicity is a verdict for the same amount as was given in Oliver's case (1), where the House of Lords said the damages were extravagant, and seeing that no explanation was given as to the proper measure of damages, or to the option to which the defendants' counsel twice called the attention of the judge, there must be a new trial on the question of damages only.
I do not think it is a case for a judgment for the defendants on this point, by which I understand Sir Patrick Hastings to mean the striking out of the judgment the sum of £1000 awarded for loss of publicity. I do not think it is a case for that, because the jury might very well say that they could judge what the difference in publicity value would be between an appearance at the Palladium and an appearance, say, at Penge. I do not think it is a case in which one could say there is no evidence on which the jury could come to a determination on that matter, but they received no explanation of what they had to do at all, and in those circumstances I am afraid there must be a new trial, limited to a claim for damages for breach of contract other than the claim for net salary, as to which there is no complaint.
GREER L.J. I agree there must be a new trial in this case. I am not sure that I agree that the defendants are entitled to a new trial on both grounds put forward by Sir Patrick Hastings. He said there was a misdirection in this case: firstly, because the learned judge treated this agreement as an agreement to be performed at the Palladium; and, secondly, because there was an inaccurate direction as to what damages can be recovered on the ground of loss of publicity. With regard to the first ground, I think it is unnecessary to decide it. I am rather impressed with the view put forward by Mr. Doughty that this is prima facie an agreement to employ the defendant at the Palladium, with condition that in a certain event he shall agree that his engagement to perform at the Palladium shall be changed into an engagement to perform at some other of the music-halls under the control of the defendants. The breach of contract here happened before the day for the commencement of his engagement arrived. The question is: What loss of publicity did the plaintiff suffer by reason of that breach at that time of the agreement? I am inclined to think the jury were entitled to say, if they had been adequately directed: "We are satisfied that if the agreement, which was wrongly broken in anticipation on July 2, had been allowed to continue, the prima facie obligation for the plaintiff to appear at the Palladium would be still in operation, and there would not have been any expression or desire on the part of the defendants that the plaintiff should appear at one or other of the halls they control." I think the facts seem to indicate that if the jury had found that that was their view of the facts, they would have found it in accordance with the probabilities of the case; that is to say, if the agreement had not been broken it would have been carried out in its prima facie meaning - namely, an agreement to perform at the London Palladium for the three weeks mentioned in the schedule.
Be that as it may, I am satisfied that there was not in this case - and I can quite understand why - a sufficient explanation to the jury in the summing-up by the learned judge of the measure of damages with regard to the item of loss of publicity. It is a very difficult task to put into words what exactly is the limitation which ought to be put upon the liability of defendants in the position of these defendants to pay for loss of publicity, but it must be done, otherwise the jury may be led to believe that they can give any damages they like - namely, damages for loss of an existing reputation arising out of the breach of contract, and also damages for loss of publicity. I take it to be common ground that for a breach of contract, other than a contract to do work as an artiste, either in a theatre or music-hall, the damages are limited to the pecuniary loss arising from the breach of contract and however clear it may be that the person whose contract has been broken suffers general damages for loss of reputation he cannot get anything in respect of that loss from a jury. This does not merely apply to contracts of employment, it applies to most contracts. One can perfectly well understand that such a contract, for example, as a building contract might be broken at a time and in such circumstances as would have a very serious results upon the reputation of the builder, who might be financially damaged to a very great extent; but all he can recover is what he would have been paid for his work, less the expense of doing it, if the performance of the agreement had been continued.
There is an exception to this rule, and that is with regard to an agreement by an artiste who engages to perform at a theatre or music-hall, and I understand the exception has this effect: When a proprietor of a music-hall or theatre engages an artiste to perform, he is promising two things: he is giving a consideration which consists of two different elements; firstly, a salary which he promises the artiste for his services, and secondly, the opportunity to play in public some part which will attract attention. For the loss of his salary the artiste is entitled to damages if his contract is broken. For the loss of the opportunity of impressing the public with his artistic value and so enhancing or maintaining his reputation, he is also entitled to recover damages; but he is not entitled to recover damages such as Mr. Doughty, in his address to the jury, asked them to give, In Mr. Doughty's final speech be said: "Members of the jury, does it do a man any good to be turned out of the greatest hall in England? If the accurate and quiet, sober truth is told about it, what good does it do, and what harm does it do him? Do you think that everybody who discusses this matter in England and America will confine themselves to the strict and accurate truth? It will be known that the show was a failure and that the show was not put on at the Palladium." I think that such a claim goes a long way beyond anything that would be justified by any accurate description of loss of publicity, and the learned judge's summing-up, coming as it did almost immediately after the address by Mr. Doughty for the plaintiff, was in one respect subject to criticism, and that is that the statement about the damages was too short, and did not correct the impression that must have been made by the powerful oration that the plaintiff's counsel had just finished addressing to the jury. All that the learned judge said about it is in these words: "No doubt it is a serious matter if it is known that an artiste is expected to appear and does not appear at a well known music-hall like the Palladium; and you would have to put some figure upon that loss of publicity." If that had been a little further expounded and explained, no exception could be taken to it, but I think the defendants are entitled to criticize it in that it was too brief, and did not contain the explanation which was necessary after the decision of the House of Lords in Clayton & Waller, Ld. v. Oliver as to the extent of the defendants' liability to damages for the loss of publicity.
On that ground I think this Court, though with some reluctance, must order a new trial. I can quite understand the learned Lord Chief Justice, having dealt with the matter as he did, thought that the real matter before him was the question of liability, and not the question of damages for loss of publicity, although that had also to be dealt with.
I agree that this verdict should be set aside so far as the damages are concerned, and a new trial ordered as regards damages.
ROMER L.J. I agree that there must be a new trial on the issue as to damages. Mr. Doughty said, and I think very rightly, that in a case like this one ought not to criticize and examine too meticulously the observations made by counsel or the summing-up of the learned judge, and I disclaim any intention of doing so. But looking at the matter broadly I have come to the conclusion that it never was brought to the minds of the jury that the plaintiff was not entitled to recover damages for his loss of reputation; that is to say, the damage his reputation may have suffered by the repudiation of the contract with the defendants, as distinct from the damage he has sustained by reason of the loss of opportunity of enhancing his reputation by appearing under the terms of his contract; nor do I think if was sufficiently brought home to the minds of the jury that the defendants were not under any obligation to employ the plaintiff at the Palladium; but that they had the option of employing him elsewhere within certain limits mentioned in the contract.
] In my opinion a new trial should be ordered upon both those grounds. As to the first I do not desire to add anything to what has been said about the law and the facts. As to the second, I only wish to say this: It must be observed that at the time the defendants repudiated the contract on July 2, they had not lost the right of exercising the option which in my opinion they had under the contract of directing the plaintiff to appear, not at the Palladium but at one of the other halls belonging to or under the control of the defendants; and the jury ought to have taken into consideration the possibility, and I think the probability, that if the defendants instead of repudiating the contract on July 2 had elected to go on with the performance they would have sent the plaintiff to perform somewhere else than at the Palladium.
For these reasons I think there must be a new trial,
New trial on question of damages.
Solicitors for appellants: Lawrance, Messer & Co.
Solicitors for respondent : Kenneth Brown, Baker, Baker.
R.F.S.
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