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. Singer contracted to work for exclusively this person. [627] It is supposed that Lord Lyndhurst's decision was based upon a. wrong principle; that he followed the authority of Gervais v. Edwards and such cases, and that he improperly applied the' rule which was in that class of cases properly applied, but under the circumstances of the case before him, I think the rule was not improperly applied.(2). This is the old version of the H2O platform and is now read-only. Lumley v Wagner; Court: Chancery Court: Citation(s) [1852] EWHC (Ch) J96, (1852) 64 ER 1209, (1852) 5 De Gex & Smale 485: Keywords; Termination, condition Facts. Lumley v Wagner (1852) 42 ER 687. [604] [S. C. 5 De G. & Sm. In the analysis that follows, I shall not separately consider such orders. 467; Donnell v. Bennett, 1883, 22 Ch. 393), Hooper v. Brodrick (11 Sim. 88), where the whole of the agreement had been completed, with the exception of the part which remained to be performed by the operation of the injunction; besides the question there resulted out of a partnership transaction: Where, however, the Court by its interference cannot do the complete act which was the subject of the agreement between the parties, it has declined to interfere, Smith v. Fromont (2 Swanst. View this article on JSTOR. 755 (Erle, J.). 437), he put that paraphrase or commentary upon it which I have referred to :  that is, he says: "Lord Eldon is speaking of a case where the parties are in partnership together." 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? 437), are all distinguishable. for procurement is an anomaly confined to the case of master and servant. said that it was properly granted, because it was a case of partnership. to enforce the specific performance of the whole of this contract, yet in all sound. I apprehend, therefore, that the decision of the Vice-Chancellor, which proceeded on the principle I have stated, and rightly, on the grounds I have stated, and which I believe is the principle of this Court, and the principle on which the Vice-Chancellor acted as to that part of the case, is correct ; and equally applies, as it appears to me it does, to that part of the notice of motion with respect to the licences, because that forms a part of the contract, the generaI contract. 06/01/2017 at 14:38 by Charles Fried; 07/21/2015 at 03:16 by Cindy Whang; 12/01/2017 at 12:06 by Brett Johnson; 01/07/2016 at 12:50 by Charles Fried. Procedural History: Lower court found for P, injunction granted. His Lordship here entered into a minute examination of the statements in the answers and affidavits as to the unauthorized addition of the restrictive clause, and as to the non-fulfillment by the Plaintiff of his portion of the agreement. "It was thrown out, in the course of the argument, that this Court might compel one party to perform his part of the contract, and leave the other party to his remedy at law. 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. Ford v. Jermon. & War. 80). Kemble v. Kean, 6 Sim. _____ Between: LUMLEY v WAGNER _____ The bill in this suit was filed on the 22nd April 1852, by Benjamin Lumley, the lessee of Her Majesty's Theatre, against Johanna Wagner… 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. D subsequently agreed to sing in another theatre. The bill was filed for the purpose of calling on' the Court to declare that that agreement should be specifically performed. 52) was decided, I apprehend that there could have been no doubt on the law as applicable to this case, except for the authority of Vice-Chancellor Shadwell; but with great submission it appears to me that the whole of that learned Judge's authority is removed by himself by his decision in the later case of Rolfe v. Rolfe (15 Sim. It is not, however, shewn that the Defendant has threatened, or intends to do, or to cause or permit to be done, any act whereby the [625] licences may become forfeited or be refused; and, therefore, the injunction must be dissolved." 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. THE LORD CHANCELLOR. Can the Court order Mr. Hills to continue the manufacture of acids for the purpose of supplying Mr. Croll? The prayer of the bill in the present case is not for specific performance and for an injunction as ancillary to that relief, but for an injunction simply, to prevent the violation of the negative stipulation in the Defendants' agreement. The Vice-Chancellor has rested his decision mainly on the authority of Dietrichsen v. Cabburn (2 Phil. The expressions in the judgment are :—" I cannot, as in the other case" (referring to Morris v. Colman (18 Ves. 458; Manchester Ship Canal Co. v. Manchester Racecourse Go. That again is a direct authority, therefore, against the Defendants, as Lord Eldon expressly says he had interfered in the case of a negative covenant, although he could not interfere on that, occasion because there was no such covenant. Mainstream Properties Ltd v Young [2005] EWCA Civ 861. 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 bill in this suit was filed on the 22d April 1852, by Benjamin Lumley, the lessee of Her Majesty's Theatre, against Johanna Wagner, Albert Wagner, her father, and Frederick Gye, the lessee of Covent Garden Theatre: it stated that in November 1851 Joseph Bacher, as the agent of the Defendants Albert Wagner and Johanna Wagner, came to and concluded at Berlin an agreement in writing in the French language, bearing date the 9th November 1851, and which agreement, being translated into English, was as follows :—. " Held, on a bill filed to restrain J. W. from singing for a third party, and granting an injunction for that purpose, that the positive and negative stipulations of the agreement formed but one contract, and that the Court would interfere to prevent the violation of the negative stipulation, although it could not enforce the specific performance of the entire contract. The bill then stated that in November 1851 Joseph Bacher met the Plaintiff in Paris, when the Plaintiff objected to the agreement as not containing an usual and necessary clause, preventing the Defendant Johanna Wagner from exercising her professional abilities in England without the consent of the Plaintiff, whereupon Joseph Bacher, as the agent of the Defendants Johanna Wagner and Albert Wagner, and being fully authorized by them for the purpose, added an article in writing in the French language to the agreement, and which, being translated into English, was as follows:—. 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. . In the case of Stocker v. Brockelbank there was no negative covenant.]. M. & G. 604, 42 Eng. Johanna Wagner (defendant) contracted to sing exclusively for Benjamin Lumley’s (plaintiff) theatre for one season. Lumley v. Gye Court of Queen's Bench, 1853 2 El. 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