Wade v Waldon
| Jurisdiction | Scotland |
| Judgment Date | 03 February 1909 |
| Date | 03 February 1909 |
| Docket Number | No. 96. |
| Court | Court of Session |
Ld. Johnston, Lord President, Lord M'Laren, Lord Kinnear, Lord Pearson.
ContractConstructionConditionCondition PrecedentBreach.
A, a comedian, entered into an agreement with B, a theatrical manager, to perform at a music hall on a date a year subsequent to the agreement. The agreement was embodied in a minute in which the engagement was declared to be subject to the rules of the establishment printed on the back hereof. Number 6 of these rules provided that all artistes engaged must give fourteen days' notice prior to such engagement, such notice to be accompanied with bill matter. A did not give notice in terms of rule 6, and B refused to allow him to perform.
Held that rule 6 was not a condition of the contract the breach of which by A entitled B to rescind the contract, but was merely a stipulation for the breach of which damages might be claimed.
By memorandum of agreement dated 20th March 1907 Richard Waldon, the sole proprietor and manager of the Palace Theatre, Glasgow, and also a director of the Pavilion Theatre (Glasgow), Limited, engaged George Edward Wade, a comedian acting under the name of George Robey, to give certain performances at the above-named theatres during the week commencing 16th March 1908.
The memorandum of agreement was in these terms:
Memorandum of agreement made this twentieth day of March 1907, between Rich. Waldon, sole proprietor and manager of the Palace Theatre, Glasgow, of the one part, and George Robey of the other part.
Witnesseth that the said Rich. Waldon of the Palace Theatre, Glasgow, and Pavilion Theatre, Glasgow, agrees to engage, and the said artiste to accept and perform an engagement as comedian at a salary of Three hundred and fifty pounds (350) per week, two performances nightly, if required, also matinees, if required, such engagement to be performed at the Palace Theatre, Glasgow, and Pavilion Theatre, Glasgow, at such times as shall be arranged by the manager, and to commence on Monday, the sixteenth day of March 1908, for a period of one week.
Subject to the rules of the establishment printed on the back hereof, which the undersigned herewith acknowledges to have read, understood, and agreed to before signing this contract.
The said artiste or artistes agree not to appear at any other place of entertainment during the period of this engagement without special permission of the manager.
All artistes must attend rehearsals each Monday at 12 o'clock.
The said artiste agrees to give the performances, herein arranged to be given, to the best of his ability, and hereby agrees to pay the said Rich. Waldonascertained and liquidated damages, should the said artiste fail to fulfil this engagement from any cause (illness excepted).
Should, however, the said artiste fail to fulfil this engagement through illness, then the said artiste agrees to fulfil another engagement at same terms at the Palace Theatre, Glasgow, before appearing at any other hall or theatre in Glasgow.
There were twenty-three rules and regulations printed on the back of the memorandum of agreement. The sixth of these was in these terms:All artistes engaged at the Palace Theatre, Glasgow, must give fourteen days' notice prior to such engagement, such notice to be accompanied with bill matter.
On 13th March 1908 Wade, who was then acting in Bristol, having noticed from advertisements in the music hall newspapers that he was not advertised to appear at the two theatres above mentioned in the following week, telegraphed to their respective managers in the following terms: Name not in call for Monday, presume mistake. To these telegrams the following replies were received: You never sent bill matter or notification, consequently contract broken, see rule six, contract, from the manager of the Palace Theatre, and Call in order. Your name does not appear. Will not play you owing to breach of contract, from the manager of the Pavilion Theatre.
On 16th April 1908 Wade raised an action against Waldon in which he claimed 300 as damages for breach of contract.
In this action he set forth the facts stated above, and averred that the defender was aware of the pursuer's engagement, and did not require to have it intimated to him. He was not in any way prejudiced by not receiving such notice. The pursuer, who is a well-known music hall artiste, never is required to give bill matter in the sense of supplying particulars as to the nature of his performance. In all programmes announcing his appearance on the stage, the only entry as bill matter is George Robey or George Robey, comedian. The fourteen days' notification is required only in connection with special details for bill matter, and is therefore never given by or expected from the pursuer, and in any event the condition either as to fourteen days' notification or the supplying of bill matter was not an essential part of the contract. Explained that the pursuer, on his former engagement with the defender, in accordance with his...
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