Scottish Court of Session Decisions

Lord President.—In 1907 George Wade, professionally known as George Robey, entered into a contract with Richard Waldon, director and manager of certain theatres in Glasgow, whereby he agreed to perform in the year 1908 for a week from 16th March of that year at a certain salary in theatres in Glasgow. The week before the performance was to take place, Robey, having noticed that his name was not on the bills for next week, telegraphed to Waldon in these terms:—“Name not on call for Monday; presume mistake.” To that telegram he got the answer:—“You never sent bill matter or notification; consequently contract broken. See Rule 6 of contract.” He also got another telegram:—“Call in order; your name does not appear; will not play you owing to breach of contract.” Consequently he was not allowed to appear, and did not appear. He now sues Waldon for breach of contract for not allowing him to appear at the theatre. The attitude taken up in these telegrams by the defender is perfectly clear. He says,—“You are in breach of contract because you have not complied with the stipulation in Rule 6.” Rule 6 finds its place amongst the rules and regulations printed on the back of the contract, and is in these terms:—

“Artistes engaged at the Palace Theatre, Glasgow, must give fourteen days' notice prior to such engagement, such notice to be accompanied by bill matter.” It is said that the pursuer did not give the fourteen days' notice therein provided for, and no such notice having been given, he did not send the appropriate bill matter. Something is said on record in explanation of the fact that no notice was given, but for the purposes of the present discussion I assume that no such notice was given.

The whole point then is, is this stipulation one of such a kind that a breach of it would entitle the defender without more ado to declare the contract at an end? It is familiar law, and quite well settled by decision, that in any contract which contains multifarious stipulations there are some which go so to the root of the contract that a breach of those stipulations entitles the party pleading the breach to declare that the contract is at an end. There are others which do not go to the root of the contract, but which are part of the contract, and which would give rise, if broken, to an action of damages. I need not cite authority upon what is trite and very well settled law.

The only other point to which I should allude is this, that, as was pointed out by Lord Watson in the case of the London Guarantee Company, quoting a sentence from Lord Blackburn's judgment in Bettini v. Gye, that it is quite in the power of parties to stipulate that some particular matters, however trivial they may be, yet shall, as between them, form conditions precedent. If they have said so, then their agreement in the matter will be given effect to, but where they have not said so in terms, as is the case here, then the Court must determine, looking to the nature of the stipulation, whether it goes to the essence of the contract or not. We were asked by the defender to allow a proof at large on this matter. That motion cannot be entertained, because nothing we could get in a proof could, in my view, at all affect the real question before us, which is one purely of interpretation. I am quite able to understand what the meaning of the stipulation is, and I quite understand the reason for its being put in, but the question of whether it is a condition precedent or a mere stipulation which will entitle the person to get damages for a breach is a question of law upon which no evidence can possibly help me.

I am very clearly of opinion that this is a stipulation which does not go to the root of the contract. This case is scarcely distinguishable from the case of Bettini, and I think that the Lord Ordinary has come to a right conclusion. He has found that there was an undoubted breach of contract by the defender here in not allowing the pursuer to play, and that that breach was unjustified, inasmuch as the defender had no right to treat the non-fulfilment of this article 6 as a breach entitling him to put an end to the contract altogether. The only other question is, what are the damages, and that must be ascertained by proof.

As regards the other two actions I also think the Lord Ordinary is right. They are based upon the same theory which I have already held to be erroneous, namely, that there was an end of the contract by the notice not having been given or the bill matter delivered. Here also I think the Lord Ordinary was right.

Lord M'Laren.—I am of the same opinion. Mr Wade was in breach of contract to a limited extent in respect that he neglected to give notice within fourteen days and to send bill matter. But it is not the law, and it would be very unworkable if it were the law, that every breach of contract, however trifling, would entitle the other party to bring the contract to an end, and to get out of his bargain. The question always is whether a stipulation which has been broken is of the essence of the contract. I think the omission to send notice did not in substance amount to a breach of contract entitling the other party to rescind. It is clear that Mr Wade was in a position to fulfil, and meant to fulfil, his part of the contract, and the proof of that is that, when he saw that his name was not included for the following week in the announcements in the theatrical papers, he at once telegraphed and asked the reason of this omission. I am therefore of opinion that the Lord Ordinary is clearly right.

Lord Kinnear and Lord Pearson concurred.