52), when he said that Lord Eldon had not decided Morris v. Colman on the ground of there being a partnership. ). 80). The Vice-Chancellor has rested his decision mainly on the authority of Dietrichsen v. Cabburn (2 Phil. Name: Charles Fried. 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. The earlier authorities cited by the Plaintiff in the Court below, namely, Martin v. Nutkin (2 P. W. 266), Barret v. Blagrave (5 Ves. 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. 88) was merely ancillary to the relief; but it will be seen that that was not so, and that the prayer extended only to the injunction, and had nothing to do with relief in the shape of specific performance; and the learned Judge himself stated that, if it had gone to that extent, he, following his former decisions, would not have granted the injunction. 3. Johanna Wagner (defendant) contracted to sing exclusively for Benjamin Lumley’s (plaintiff) theatre for one season. This, however, was not the fact; it was not a case of partnership, but was strictly one of principal and agent; and it was only because there was the negative covenant that the Court gave effect to it. There was then a companion case, Lumley v Gye (1853) 2 El & Bl 216; 118 ER 749, where Mr Lumley sued Mr Gye for the economic tort of inducing breach of contract. P sued D in a court of equity seeking an injunction to keep D from singing in other theatres. You're using an unsupported browser. In the case of Martin v . & Bl. [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. 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. MaggburyPty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181. [THE LORD CHANOELLOR observed that in the case of Blakemore v. The Glamorganshire Canal Navigation (1 Myl. I have come to a different conclusion : and I am bound to say that, in my apprehension, the case of Kemble v. Kean was wrongly decided and cannot be maintained. If not, you may need to refresh the page. Learn more about Quimbee’s unique (and proven) approach to achieving great grades at law school. Mainstream Properties Ltd v Young [2005] EWCA Civ 861. The bill prayed that the Defendants Johanna Wagner and Albert Wagner might restrained from violating or committing any breach of the last article of the agreement; that the Defendant Johanna Wagner might be restrained from singing and performing or singing at the Royal Italian Opera, Covent Garden, or at any other theatre or place without the sanction or permission in writing of the Plaintiff during the existence of the agreement with the Plaintiff; and that the Defendant Albert 'Wagner might be restrained from permitting or sanctioning the Defendant Johanna "Wagner singing and performing or singing as aforesaid; that the Defendant Frederick Gye might be restrained from accepting the professional services of the Defendant Johanna Wagner as a singer and performer or singer at the said Royal Italian Opera, Covent Garden, or at any other theatre or place, and from permitting her to sing and perform or to sing at the Royal Italian Opera, Covent Garden, during the existence of the agreement with the Plaintiff, without the permission or sanction of the Plaintiff. At an early stage of the argument I adverted to the familiar cases of attorneys' clerks, and surgeons' and apothecaries' apprentices, and the like, in which this Court has constantly interfered, simply to prevent the violation of negative covenants; but it was said that in such cases the Court only acted on the principle that the clerk or apprentice had received all the benefit, and that the prohibition operated upon a concluded contract, and that, therefore, the injunction fell within one of the exceptional cases. 499 ; Leech v. Schweder, L. R. 9 Ch. The authority of Clarke v. Price (2 Wils. Lumley v. Wagner 42 Eng. [604] [S. C. 5 De G. & Sm. A case commonly cited for that purpose is the case of a nuisance. There were some other subordinate stipulations to which it is not necessary at present to advert. 333, and Kimberley v. Jennings, 6 Sim. Abuse of process—arbitration funding and injunctions (Koza v Koza Altin Isletmeleri) Can a company be restrained from financing an investment claim? Ford v. Jermon. The first class includes those where its aid is sought to obtain preventive relief, and where, if not granted, irreparable mischief would ensue, as in the cases of nuisances and infringement of patents. Lumley v Wagner [1852] EWHC (Ch) J96 is an English contract law case, concerning the right to terminate performance of a contract. 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. 47), Hills v. Croll (2 Phil. .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. . Read more about Quimbee. I must, therefore, refuse the injunction which the first plaintiff seeks. Great Atlantic & Pacific Company of Canada. [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). Part B . 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 holding and reasoning section includes: v1534 - c758591a3384a01c42136adf7f32fcb411acf66b - 2021-01-20T18:44:42Z. Lineage of: Lumley v. Wagner Current Annotated Case 07/02/2013 at 14:49 by Charles Fried. The pedigree and status of the doctrine of Lumley is fully expounded in I C F Spry, The Principles of Equitable Remedies: Specific Performance, Injunctions, Rectification and Equitable Damages (Lawbook, 4' ed 1990) 561-92. "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. 27 The love triangle is still an extremely common trope. The effect, too, of the injunction in restraining J. Wagner from singing elsewhere may, in the event of an action being brought against. Rep. 687 (Ch. M. & G. 604, 42 Eng. 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." The rule of law is the black letter law upon which the court rested its decision. It is clear, I apprehend, that the Court has no such power. 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. If Mr. Lumley happens to be prevented by any cause soever from giving these operas, he is, nevertheless, held to pay Mademoiselle Johanna Wagner the salary stipulated lower down for the number of her parts as if she had sung them.-—Fourth, In the case where Mademoiselle Wagner should be prevented by reason of illness from singing in the course of a month as often as it has been stipulated, Mr. Lumley is bound to pay the salary only for the parts sung.—Fifth, Mademoiselle Johanna Wagner binds herself to sing twice a week during the run of the three months; however, if she herself was hindered from singing twice in any week whatever, she will have the right to give at a later period the omitted representation.—Sixth, If Mademoiselle Wagner, fulfilling the wishes of the direction, consent to sing more than twice a week in the course of three months, this last will give to Mademoiselle Wagner £50 sterling for each representation extra. ", 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 :—. It is impossible to read Lord Cottenham's judgment, without being satisfied that he did not consider it to be a part-[631]-nership, though he said it was in the nature of a partnership; and in a popular sense it might. In the analysis that follows, I shall not separately consider such orders. She also promised that, during this period, she would not to perform anywhere else. 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. We submit that the agreement in the present case being one of which the Court cannot decree specific performance, the jurisdiction by injunction does not attach. 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. The issue section includes the dispositive legal issue in the case phrased as a question. Chancery court affirmed, found for P, injunction granted. Contract; remedies for breach; injunctions; prevention of threatened breach of contract. He gives the clearest enunciation of his opinion that that would be an agreement which this Court would enforce by way of injunction. The learned Judge, however, adds, "but here the negative covenant does not stand by itself: it is coupled with the agreement for service for a certain number of years, and then for taking the Defendant into partnership: . The bill was filed simply for an injunction to prevent A. from setting up as a tailor within the prescribed limits, and the Vice-Chancellor granted that injunction. 330). In addition to this, there was a. stipulation that, in all the licences that were granted for using those patents, the parties to whom those licences were to be granted should be bound to purchase all the acids which were used in the processes from Mr. Hills, and that Mr. Hills should have the same option that he had in the case of Croll, of purchasing from them all the ammonia that should be produced in the course of the processes. 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. 1 DeG., M & G. 604, 42 Eng. 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. 'With some doubt, whether I was not degrading the dignity of this Court by interfering, I saw my way in that case; because one party had there covenanted absolutely against interfering with the business which he had sold to the other." On the same principle, as well as to prevent the commission of irreparable damage, a tenant was restrained from violating a covenant he had entered into with his landlord not to burn the demised lands, Gervais v. Edwands (2 Dru. 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. 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 … "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. —-Seventh, Mr. Lumley engages to pay Mademoiselle Wagner a salary of £400 sterling per month, and payment will take place in such manner that she will receive £100 sterling each week.—Eighth, Mr. Lumley will pay, by letters of exchange, to Mademoiselle Wagner at Berlin, the 15th of March 1852, the sum of £300 sterling, a sum which will be deducted from her engagement in his [606] retaining £100 each month.—Ninth, In all cases except that where a verified illness would place upon her a hindrance, if Mademoiselle Wagner shall not arrive in London eight days after that from whence dates her engagement, Mr. Lumley will have the right to regard the non-appearance as a rupture of the contract, and will be able to demand an indemnification.— Tenth, In the case where Mr. Lumley should cede his enterprise to another, he has the right to transfer this contract to his successor, and in that case Mademoiselle Wagner has the same obligations and the same rights towards the last as towards Mr. Lumley. 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. 3. 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. 141; Warne v. Routledge, 1873, L. R. 18 Eq. (A) An order to pay an amount of money (B) An order to stop the performance of a certain act (C) An order to change a contract between two parties (D) An order to have a dispute settled by a trial with a jury 20 Which of the following best defines customs? 687 ( 1852 ), Hills v. Croll ( 2 Phil ) does remove the whole this... Injunction prayed in Rolfe v. Rolfe ( 15 Sim Cabburn ( 2 Phil in support of original! The manufacture of acids for the purpose of supplying Mr. Croll from purchasing acids.! Mutual tontine, & C., Association [ 1893 ], 2 Ch, Lord Lyndhurst refused to sing Lumley! Montague v. Flockon, 1873, L. R. 9 Ch student of G.,! Quite clear that, upon this interlocutory application, the jurisdiction of H2O!, as in Whittaker v. 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