It was objected that this Court could not grant the injunction when there was something remaining to be performed, for that A. had a right to be employed as a cutter, which right this Court would not even attempt to deal with or enforce as against C. That case, therefore, was open to a difficulty which does not occur here; in fact, the same difficulty which might have arisen in Hills v. Croll (2 Phil. Lumley v Wagner Lumley v Wagner (1852) 42 ER 687 High Court of Chancery The defendant Johanna Wagner, an opera singer, was engaged by the claimant to perform in his theatre for a period of three months. In the former case he observed that Lord Eldon must be understood, in the case of Morris v. Colman (18 Ves. 871. It was objected that the operation of the injunction in the present case was mischievous, excluding the Defendant J. Wagner from performing at any other theatre while this Court had no power to compel her to perform at Her Majesty's Theatre .. If you would like access to the new version of the H2O platform and have not already been contacted by a member of our team, please contact us at h2o@cyber.law.harvard.edu. Refresh. Mr. Bethell, Mr. Malins and Mr. Martindale, in support of the appeal motion. THE LORD CHANCELLOR. No contracts or commitments. In this case of Hills v. Croll, Croll had obtained two patents for the purpose of purifying gas, and the result of the purification of gas was the manufacture of muriate of ammonia and sulphate of ammonia. The earlier authorities cited by the Plaintiff in the Court below, namely, Martin v. Nutkin (2 P. W. 266), Barret v. Blagrave (5 Ves. The case of Robinson v. Lord Byron (I Bro. Similar to Wagner, the singer refused to sing in Philly and wanted to sing elsewhere. . The case of Smith v. Fromont (2 Swanst. It appears beyond all doubt that it was so acted upon, because the accounts were, from time to time, rendered on the 'footing of the Modified agreement, and it is also clear from the letter of Mr. Hills of the 8th of December, in which he refers expressly to the prices that were regulated by the letter of September 1842. Lumley v Wagner, 1. in which the Lord Chancellor, Lord St Leonards, made an exceptional decision to grant an injunction to enforce a promise in a personal services contract. 80). Thank you. 660 ; Merchants’' Trading Co. v. Banner, 1871, L. R. 12 Eg. No such principle has ever been acted on in this Court; it has been so laid down over and over again, and in a recent case that was cited at the Bar (Gervais v. Edwards, 2 Dru. It is now the case, in 21. st Lord Lyndhurst refused to prohibit B. from obtaining acids from any other quarter, both because the covenants were correlative, and because he could not compel A. to supply B. with acids; and if, therefore, he had restrained B. from taking acids from any other quarter, he might have ruined him in the event of A. breaking his affirmative covenant to supply the acids. 553.]. Has the Court any power whatever to compel Mr. Hills to comply with that? It was found, on the part of Mr. Croll, that the mode of payment and other arrangements, with respect to this agreement, were inconvenient, in consequence of which a correspondence takes place between him and Mr. Hills, in the month of September 1842, and the agreement was modified according to the terms of a letter, dated, I think, in September, written by him. The same doctrine was also recognised by Lord Langdale, in the case of Whittaker v. Howe (3 Beav. This website requires JavaScript. See Robinson V. Heuer [1898], 2 Ch. Cancel anytime. 555), which involved the doctrine of part performance, the tenant having enjoyed the benefits of the lease. Lumley v. Gye, (1853) 118 Eng. 454). 216. In Diagnostic X-Ray Services Pty Ltd v Jewel Food Stores Pty Ltd the court did order specific performance of a lease to operate a business. 52). That case therefore, however it may be explained as one of the exceptional cases, is nevertheless a clear authority shewing that this Court has granted an injunction prohibiting the commission of an act in respect of which the Court could never have interfered by way of specific performance. Lord Eldon, in refusing the injunction and deprecating the interference of the Court in such cases, there said: "The only instance I recollect of an application to this Court to restrain the driving of coaches occurred in the case of a person who, having sold the business of a coach proprietor from Reading to London, and undertaking to drive no coach on that road, afterwards established one. 333) and Kimberley v. Jennings (6 Sim. Subsequently, Covent Garden, a rival theatre, convinced Wagner to break her contract with Lumley and sing for that theatre instead. This is the old version of the H2O platform and is now read-only. Singer contracted to work for exclusively this person. It has been observed in the argument here, that in granting the injunction Lord Loughborough said :—" It is in the nature of specific performance," and that, therefore, that case also falls under one of the exceptional cases. Rep. 687 (1852), Lord Chancellor’s Court, case facts, key issues, and holdings and reasonings online today. & Wightman, J.). 4. In reference to those points he observed that, whether the clause was originally added with or without authority, the evidence shewed a clear acquiescence on the part of the Defendants to its remaining in the agreement ; that the operation of the agreement had been in the first instance postponed to suit the convenience of the Defendants; and that as to the payment of the £300, although the Plaintiff could not have come into a Court of Equity to enforce the contract without having tendered the amount stipulated to be paid, yet it was distinctly proved that it had in fact been paid to the common agent of both parties for the purpose of being handed to the Defendants. In that case, on dissolving an injunction which had been granted by the Vice-Chancellor of England, restraining the company from applying to Parliament for powers to relieve them from the performance of their contract, his Lordship said, "The covenant is a mere legal contract which the Act asked for may prevent the Defendant from performing, but that is all: if A. contract with B. to deliver goods at a certain time and place, will equity interfere to prevent A. from doing anything which may or can prevent him from so delivering the goods? Abuse of process—arbitration funding and injunctions (Koza v Koza Altin Isletmeleri) Can a company be restrained from financing an investment claim? Defendant was an opera singer who contracted to sing at plaintiff’s opera. "Some doubt was expressed as to whether or not the contract so modified has been acted upon in that shape. THE LORD CHANCELLOR. Discussed, Whitwood Chemical Co. v. Hardman [1891], 2 Ch. ").26 Id. You can try any plan risk-free for 30 days. "Those are the facts of the case for the purpose of raising the narrow question, as it appears to me, which the Court has to decide. Written and curated by real attorneys at Quimbee. Lian Keow Sdn Bhd & Anor v Overseas Credit Finance (M) Bhd & Ors. 340), on which I shall presently make a few observations. M. & G. 604, 42 Eng. I have then to consider how the question stands on principle and on authority, and in so doing I shall observe upon some of the cases which have been referred to and commented upon by the Defendants in support of their contention. See Fothergill v. Rowland, 1873, L. R. 17 Eq. ", His Lordship here referred to another question raised in the course of the discussion, namely, whether the second or modified agreement had been put an end to by the operation of the clause providing for the enforcement of the first or original agreement; and, after remarking that it was unnecessary for him, for the purpose of the present question, to come to any conclusive decision on that point, proceeded as follows :—. The Plaintiff relied on the Defendants' knowledge of a fact said to be communicated to them in a letter, of which no copy was kept, but the receipt of which the Defendants admitted. 157) was much pressed upon me by the learned counsel for the Defendants; but that is a case which does not properly belong to their argument, because there there was no negative stipulation, and I quite admit that this Court cannot enforce the performance of such an affirmative stipulation as is to be found in that case; there the Defendant having agreed to take notes of cases in the Court of Exchequer, and compose reports for the Plaintiff, and having failed to do so, the Plaintiff, Mr. Clarke, filed a bill for an injunction, and Lord Eldon, when refusing the injunction, in effect, said, I cannot compel Mr. Price to sit in the Court of Exchequer and take notes and compose reports; and the whole of his judgment shews that he proceeded (and so it has been considered in later cases) on the ground that there was no covenant, on the part of the Defendant, that he would not compose reports for any other person. 269). He was alluding to a case in which Garrick, as a performer, would have had nothing to do with the theatre beyond the implied engagement that he would not perform anywhere else; and I have [622] come to a very clear conclusion that Lord Eldon would have granted the injunction in that case although there had been no partnership. 437), the injunction was granted upon the ground of partnership, as shewn by Lord Eldon in the case of Clarke v. Price (2 Wils. 454), before Lord Eldon, in which this Court has declined to exercise the power (which in that instance it was assumed to have had) of preventing the commission of an Act, because such power could not be properly and beneficially exercised. She breached her contract and intended to sing at another opera. Lineage of: Lumley v. Wagner Current Annotated Case 07/02/2013 at 14:49 by Charles Fried. Part of the prayer which is consequent upon a specific performance is, that' the Defendant should be restrained from purchasing acids from anybody but Mr. Hills, and also, that he should be restrained from granting licences, except according to the agreement that was in force between the parties. Issues. Lumley v Wagner [1852] De GM & G 604 Case summary last updated at 04/01/2020 14:56 by the Oxbridge Notes in-house law team. 468 (n.);j Bowen v. Hall, 1881, 6 Q. In the case of Martin v . Later, Covent Garden a competitor convinced Wagner to break her contract with Lumley and sing for them. Like a mutant gene, that decision has evolved over time to create a monstrous distortion in contemporary Australian employment law. 333) and Kimberley v. Jennings (6 Sim. Can the Court order Mr. Hills to continue the manufacture of acids for the purpose of supplying Mr. Croll? Lord Chancellor’s Court 42 Eng. P sued D in a court of equity seeking an injunction to keep D from singing in other theatres. at 792 n.81 (quoting Lumley v. Wagner, (1852) 42 Eng. A case commonly cited for that purpose is the case of a nuisance. In point of fact, the application was that he might be compelled to keep it open, and the Vice-Chancellor makes this observation: "The Court ought not to have restrained the Defendant from discontinuing to use and keep open the demised premises as an inn, which is the same in effect as ordering him to carryon the business of an innkeeper; but it might have restrained him from doing, or causing or permitting to be done, any act which would have put it out of his power, or the power of any other person, to carryon that business on the premises. We’re not just a study aid for law students; we’re the study aid for law students. Ford v. Jermon. JISCBAILII_CASE_CONTRACT Neutral Citation Number: [1852] EWHC Ch J96(1852) De GM & G 604; 42 ER 687 IN THE HIGH COURT OF CHANCERY 22, 26 May 1852 B e f o r e : Lord Chancellor Lord St. Leonards. 80), Sir Edward Sugden held that, unless this Court can execute every part of the contract, this Court will not compel a specific performance, of a part. His Lordship concluded by saying that, looking at the merits and circumstances of the case, as well as at the point of law raised, he must refuse this motion, with costs. 12/09/2016 at 12:02 by Brett Johnson; Author Stats. Like a mutant gene, that decision has evolved over time to create a monstrous distortion in contemporary Australian employment law. Lumley v Wagner (1852) 42 ER 687 High Court of Chancery The defendant Johanna Wagner, an opera singer, was engaged by the claimant to perform in his theatre for a period of three months. 437), to have spoken according to the subject-matter before him, and must there be considered to be addressing himself to a case in which Colman and Garrick would both have bad a partnership interest in the theatre. Facts: Wagner contracted to sing in Lumley's theatre for a fixed period. The third class of cases embraces those where the Court, being able to give direct and full relief, has restrained the breach of unilateral agreements when only one part remains to be performed, and the effect of the injunction is to afford a complete remedy, and to leave no part of the agreement unperformed: thus, for example, in the case of restraining a tenant from committing a breach of his covenant, the whole contract is directly and positively performed; and the same remark is applicable to the decision in Rolfe v. Rolfe (15 Sim. That was a very simple case, and the [629] question upon what principle it was decided formed the subject of discussion before me. D. 838. The Court would not compel a party who had erected a wall to the nuisance of another–would not compel the party by any direct order to pull down that wall; but the Court can make an order requiring him not to continue the nuisance, which would have the effect of compelling him to pull down the wall. . A letter of the same date as that referred to in the affidavit was admitted to have been received by the Defendant J. Wag-[634]ner, but it was positively denied that it contained any such offer. The procedural disposition (e.g. "Mademoiselle Wagner engages herself not to use her talents at any other theatre, nor in any concert or reunion, public or private, without the written authorization of Mr. Lumley. So far, then, each of the cases to which I have referred appears to me to be in direct contravention of the rules which have been so elaborately pressed upon me by the Defendants' counsel. 437): there Mr. Colman was a part proprietor with Mr. Morris of the Haymarket Theatre, and they were partners in that concern, and by the deed of partnership Mr. Colman agreed that he would not exercise his dramatic abilities for any other theatre than the Haymarket; he did not, however, covenant that he would write for the Haymarket, but it was merely a negative Covenant that he would not write for any other theatre than the Haymarket. 333), and in Kimberley v. Jennings (6 Sim. as cutter at a certain allowance. 340, overruled. & G. 100). in effect one contract; and though beyond all doubt this Court could not interfere. D subsequently agreed to sing in another theatre. See Adamson v. Gill, 1868, 17 L. T. 466 ; Catt v. Tourle, 1868, L. R. 4 Ch. The bill was filed for the purpose of calling on' the Court to declare that that agreement should be specifically performed. Mr. Bethell, in reply, [613] The jurisdiction of the Court in granting injunctions may be said to be limited to four classes of cases. 3. 157) shew that he did mainly decide it on the ground of partnership; [621] but he did not decide it exclusively on that ground. From a careful examination of all these authorities I am of opinion that the principles and rules deducible from them are in direct contravention of those principles and rules which were so elaborately pressed upon me during the argument; and I wish it to be distinctly understood that I entertain no doubt whatever that the point of law has been properly decided in the Court below. In Lumley v Wagner and Warner Bros v Nelson, the judges were prepared to contemplate that work … Undoubtedly, there are cases such as that cited for the Defendants, of Collins v. Plumb (16 Ves. Wagner countered that the court could not issue an injunction preventing her from performing because that was equivalent to issuing an injunction requiring specific performance, which was beyond the court’s power. In Morris v. Colman (18 Ves. Regulations were also made altering the terms on which the acids were to be purchased and the ammonia to be sold. I abide by the opinion I there expressed, and I mean to do nothing in this case which shall in any manner interfere with that opinion. That, therefore, is an authority directly against the Defendants, because it shews that if there had been an intention to break the negative covenant, this Court would have granted the injunction. "Now, there is no principle of the Court which I understand to be more dearly established than this, that the Court will not decree an agreement to be specifically performed, unless it can execute the whole of the agreement. 127. Subsequently, Covent Garden, a rival theatre, convinced Wagner to break her contract with Lumley and sing for that theatre instead. Lord Eldon, therefore, was of opinion, upon the construction of that agreement, that it would be against its meaning to affix to it a negative quality and import a covenant into it by implication, and he, therefore, very properly, as I conceive, refused that injunction; that case, therefore, in no respect touches the question now before me, and I may at once declare that if I had only to deal with the affirmative covenant of the Defendant J. Wagner that she would perform at Her Majesty's Theatre, I should not have granted any injunction. Lumley v Wagner (1852) 42 ER 687. This means you can view content but cannot create content. 340) ; that was a case of hiring and service, and the Vice-Chancellor there virtually admitted that a negative covenant might be enforced in this Court, and quoted an instance to that effect within his own knowledge. I think this is the substance of the original agreement between these parties. There is also a fourth class of cases, namely, bills of peace, in which the Court is in the [614] habit of granting a perpetual injunction to quiet the possession of the Plaintiff, but those are inapplicable to the present. Like this case study. Cas. The same remark applies also to the case of Barrett v. Bla-[610]-grave (5 Ves. It was also contended that the Plaintiff's remedy, if any, was at law; but it is no objection to the exercise of the jurisdiction by injunction that the Plaintiff may have a legal remedy. In the familiar case of Lumley v. Wagner, the English Court of Equity held that although opera singer Johanna Wagner could not be ordered to perform her contract, she would be enjoined from singing at any competing music hall [1901], 2 Ch. her by the Plaintiff, prevent any such amount of vindictive damages being given against her as a jury might probably be [620] inclined to give if she had carried her talents and exercised them at the rival theatre: the injunction may also; as I have. Great Atlantic & Pacific Company of Canada. It was clearly intended that J. Wagner was to exert her vocal abilities to the utmost to aid the theatre to which she agreed to attach herself. & K. 154) Lord Eldon had got over his scruples ; for he there granted an injunction, the effect of which was indirectly to compel the company to restore certain works to the state in which they originally stood, His. There was a term in the contract preventing her from singing for anyone else for the duration of the contract. 485; 21 L. J. Ch. View more articles from Columbia Law Review. There Mr. Kean entered into an agreement precisely similar to the present: he agreed that he would perform for Mr. Kemble at Drury Lane, and that he would not perform anywhere else during the time that he had stipulated to perform for Mr. Kemble. Lord Eldon, adverting in his judgment to the case put at the Bar, said—" If Mr. Garrick was now living would it be unreasonable that he should contract with Mr. Colman to perform only at the Haymarket Theatre, and Mr. Colman with him to write for the theatre alone? .Nutkin (2 P. W. 266) the ringing of the bells was restrained, because not only was there no adequate remedy at law, but the contract was one clearly falling within the ordinary jurisdiction of the Court for specific performance. Some law schools—such as Yale, Vanderbilt, Berkeley, and the University of Illinois—even subscribe directly to Quimbee for all their law students. In Lumley v Wagner, Lord St Leonards LC, in his judgment, disclaimed doing indirectly what he could not do directly; and in the present case, by granting an injunction I would, in my judgment, be doing precisely that. It was further said that the Court never interferes in cases like the present, which was alleged to be one of personal service; but in the case of articled clerks, &c., the Court has continually restrained them from practising within certain limits, in violation of their agreements. Distinguished, Davis v. Foreman [1894], 3 Ch. J. W. agreed with B. L. that she, J. W., would sing at B. L.'s theatre during certain period of time, and would not sing elsewhere without his written authority. A. and B. went out of the trade on consideration of receiving £1000 each, and C. was to continue the business on his own account. The agreement was entered into in the month of March 1841. Therefore, unless the Court can compel him, by a direct order, to supply Mr. Croll, from time to time, with the acids that Mr. Croll requires, it is quite clear that this Court cannot execute all the parts of this contract; the Court cannot, therefore, compel the party specifically to perform the contract. . Referring again to the authorities, I am well aware that they have not been uniform, and that there undoubtedly has been a difference of decision on the question now revived before me; but, after the best consideration which I have been enabled to give to the subject, the conclusion at which I have arrived is, I conceive, supported by the greatest weight of authority. 555), which came first before Lord Loughborough, and afterwards before Lord Eldon (6 Ves. [1] The case was heard by the Lord Chancellor on a representation that it was intended to confine the argument to the legal :question alone, which, it was said, involved an important point of equity jurisdiction, on which the authorities were conflicting. There were some other subordinate stipulations to which it is not necessary at present to advert. Sport is often depicted as a substitute for war. Wagner.19 German soprano Johanna Wagner, "cantatrice of the Court of His Majesty the King of Prussia,"20 signed a contract to perform at the opera house owned by plaintiff Benjamin Lumley.21 She was subsequently enticed away by a rival theatre, the Royal Italian Opera, Covent Garden, by a higher offer of pay.22 This prompted Lumley to sue both Wagner and the rival theatre.23 In his case against Ms. Wagner, Lumley … Mogul Steamship Co Ltd v McGregor, Gow & Co (1889) 23 QBD 598. , Whitwood Chemical Co. v. Banner, 1871, L. 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