Herbert Clayton and Jack Waller Ltd v Oliver

JurisdictionEngland & Wales
JudgeLord Buckmaster,Viscount Dunedin,Lord Warrington of Clyffe
Judgment Date10 February 1930
Judgment citation (vLex)[1930] UKHL J0210-1
Date10 February 1930
CourtHouse of Lords

[1930] UKHL J0210-1

House of Lords

Lord Buckmaster.

Viscount Dunedin.

Lord Blanesburgh.

Lord Warrington of Clyffe.

Lord Tomlin.

Herbert Clayton & Jack Waller Ltd. and Others

After hearing Counsel, as well on Monday the 2d, as on Tuesday the 3d, days of December last, upon the Petition and Appeal of Herbert Clayton and Jack Waller, Limited, of 15 and 17, King Street, St. James', in the County of London, and of Moss Empires, Limited, of 23, York Place, Edinburgh, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 22d of October 1928, so far as therein stated to be appealed against, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied, or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of Barrie Oliver, lodged in answer to the said Appeal; and due consideration had this day, of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 22d day of October 1928, in part complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondent, the Costs incurred by him in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.

Lord Buckmaster .

My Lords,


There are two main questions on this appeal—the one the construction of a contract and the other the true measure of damages for its breach.


The contract was made in the following circumstances. The Respondent Barrie Oliver is a young actor, who has been appearing on the stage since 1923 first in America and then here.


The Appellants Herbert Clayton & Jack Waller Ltd. and Moss Empires are theatrical producers.


On the 21st June, 1927, following on some conversations, the Respondent wrote to the Appellants a letter which began as follows:—

"23, Hertford Street,

Mayfair, W.

June 21st, 1927.

Messrs. H. Clayton & J. Waller Ltd.,

& Moss Empires Ltd.,

15, King Street, London, S.W.1.

Dear Sirs,

In consideration of your paying me a salary of £55 (fifty five pounds) per week of nine performances I hereby agree to play one of the three leading Comedy parts in your new Musical production at the London Hippodrome.

The engagement to commence on or about the middle of September, 1927, and to be for six weeks certain, you to have the option of re-engaging me for the run of the Play in the West End of London by giving me notice in writing during the first four weeks of the engagement."


To which they replied on June 22nd, in these words:

"June 22, 1927.

We hereby agree to engage you to play one of the three leading Comedy parts in our new musical production at the London Hippodrome at a salary of £55 per week of nine performances. The engagement to commence on or about the middle of September, 1927, and to be for six weeks certain.… Otherwise this contract to be subject to the terms and conditions contained in the Standard Contract West End."


It is on the construction of these documents that the first question depends. There was evidence of a collateral verbal agreement but to this in the circumstances further reference need not be made.


The Respondent who was the Plaintiff in the action alleged that the true meaning of the contract involved an obligation on the Appellants to provide him with a part answering the description in the contract, that such contract was broken, and that he suffered damage ( a) for loss of salary; ( b) for loss of the advertisement and reputation he would have enjoyed had the contract been performed.


The case was tried before a Jury, who found in favour of the Respondent and assessed the damages under ( a) at £165 and under ( b) at £1,000. On appeal to the Court of Appeal it was pointed out that the Respondent having obtained service at an equivalent remuneration elsewhere the verdict under ( a) could not be sustained. The Court of Appeal accordingly modified the verdict by omitting this sum, but confirmed it in other respects, and from that judgment this appeal has been brought. The construction of the contract and the verdict for £1,000, therefore, are all that are now in dispute.


The construction of the contract is the first matter for consideration. If its true meaning is to be confined to a mere engagement of the Respondent's services, the Appellants must succeed for in such an action the wages lost are the true measure of damage and the circumstances associated with the termination of the contract cannot be used to increase that sum.


If, on the other hand, the contract be one binding the Appellants to provide a part for the Respondent to play, different considerations arise and the measure of damages for breach of that bargain stand on a different footing. There is no evidence here of custom in the profession but the character of the employment is an essential fact in determining its meaning.


The contract is based on the forthcoming production of the new musical comedy at the London Hippodrome. It is not made conditional on its production. That it is to be produced underlies the whole document and it assumes the necessary arrangements having been made. An engagement, therefore, that the Respondent is "to play one of the three leading comedy parts" is to my mind something more than a mere contract on the Respondent's part to render service; opportunity for such service is contemplated and agreed to be furnished. This is still further enforced by the imported conditions, one of which provides:—

" Exclusive Services.

4. 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 his or her talent for the benefit of any other Company Institution or person without the written consent of the Manager first had and obtained. Provided that such consent shall not be unreasonably withheld in the case of any application for the making of a gramophone or similar record."


Now if the Appellants were merely accepting the Respondent's service for the period of the contract and were not bound to give him work, the service obviously not occupying all his time, this provision, which would on that hypothesis prevent him from profitably using time not owed to them, would have no purpose. On the hypothesis, however, that he was being provided with a part it becomes sensible even if it be severe. To my mind it helps to explain the provision as to engagement and shows that there was within the contemplation of the parties the dual obligation to which I have referred. This view of the bargain does not lack authority. The case of Fechter v. Montgomery, 33 B., P. 22, is a similar case.


The written bargain there was constituted by the acceptance of a written offer dated July 28, 1862, by the lessee of the Lyceum Theatre to a leading actor "to offer you an engagement at the Lyceum Theatre for two years from January, 1863." The lessee opened the theatre but gave no part to the actor who thereupon accepted...

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