The Sun.
London, England, 1852-05-11 00:00:00

LA W INTELLIGENCE.
VICE,!CHANCELLOR'S COURT, May 10.
(Before Vice-Caancallor PARKER.)
THE RIVAL OPERA HOUSES.
LUMLEY C. WAGNER.
(Continued feem our Aftcruoon Edition of yeeterday.)
Mr. BETHEL!, proceeded to say—With regard to
to the law of the case, it must be remembered that the
interference of the Court would only be to prevent any-
thing being done in violation of the engagement, and
not to enforce specific performance. Now the judg-
ments and opinions of the Court on this subject must be
take* into consideration along with the particular cit.-
cumetancea attending them. Now none of the cases
relied upon exactly coincided wick thia.case, and he con-
tended that when there was an agreement, the specific
performance of which was only enforceable in a court of
law, and to the nonfulfillment of which the common law
had attached penalties in the shape of damages only, it
was not competent for the Court to take a part of the
agreement and interfere to prevent the violation of
that part, and leave the whole to take its chance.
He would conclude by making an offer, which would
show the sincerity of the parties whom he represented.
The offer which he had to make was this, that the in-
junction should be dissolved; and on the part of Mr.
Gve he was willing to offer that Mr. Gyo would per-
sonally answer any amount of damn.% which Mr.
Lumley might be able to recover ie any action for
breach of the agreement which he might think fit to
commence. He trusted, in conclusion, that his Honour
would able to decide this case fully and fairly upon
its merits!.
His HONOUR then proceeded to give judgment. The
case, he said, had been very anxiously considered by
him, and in its consideration he had been unable to con-
ceal from himself that from the manner in which the
case had been got up the whole particulars and circum-
-
stances had not been laid before him. The Court, how
ever, would have to give judgment on the materials be-
fore it, The article upon which the jurisdiction cf the
Court was founded was the prohibitory clause of the
agreement, and the first question for the Court to con-
sider was, whether that clause was or was not a part of
the agreement between the parties. It appeared that
Dr. Becher was a mutual friend of both parties, and in
October, 1851, was engaged in procuring engagements
fcr Wagner in London and Paris. He was pro-
vided, in his proceedings on the part of Mr. Lumley, with
a pro tern form of his usual agreements, in which was
contained the clause of prohibition which had formed the
subject of so much comment. Objection was taken to
this form of contract by the Wagners, and the remelt was
that Lumley 's form of contract was thrown aside, and a
new one drawn up, which, being signed by both
parties, was carried by Becher to Lumley, at
Paris. It was, however, objected at once by Mr. Lumley
that the contract did not contain the prohibition,
whereupon it was added by Dr. Becher, and signed by
him as authorised by Stolle. Johanna Wagner. There
was RO doubt that up to this time the Wagners were not
bound by what Dr. Becher had done. There was
nothing to show that Becher had authority to add this
clause, and had it not proceeded further he should have
had no hesitation in dismissing this clause as not bind-
ing upon them. But an agency might be created
by subsequent adoption as well as by precedent
authority. Dr. Bather stated that having added the
clause, he forwarded it to the Wagners, and as he said
was acknowledged by Madlie. Johanna in the letter
of the 17th of November, 1851. Madlle. Johanna how-
ever, stated that this letter referred to the contract of
M. Roqueplan. It was, however, pretty apparent that
from this time they treated this as a contract, and they
could not have treated it as a contract and yet re-
pudiated this clause. It must be remembered,
too, that Mr. Lumley had not, signed any
contract not containing this clause. Both
Madile. Johanna Wagner and M. Albert Wagner, in
their correspondence throughout, always considered
thatethere was a contract betwera them and Mr. Lumley,
and as there had been no contract signed without this
clause, it appeared to him therefore that they adopted
the clause, and confirmed the agency of Dr. Becher on
their beatilit Oa this part of the case, therefore, he had
no doubt in deciding in the affirmative, that the
clause was adopted ey them. The nest point was
the unfair manner in which this contract had
been obtained, and it must be remembered that all
the allegations of unfairness were limited to the introduc-
tion of this clause. Now, he did not thick it was a
matter of dispute between the parties that some clause
of this kind was what might be called a clause, of
course, in such contracts perfectly fair and justifiable
on the part of Mr. Lumley. It appeared
that on the first commencement of negotiations,
and on the discussion which took place on this clause,
the objections made by the Wagners were not so much
against a clause of this nature, as against this particular
clause as being too far and too genera?. It must be ob-
served that Madlle. Wagner in her first affidavit stated
that she hail objected to signing any engagement con-
taining a clause prohibiting her from singing at private
contorts, and Mr. Gye's affidavit was to the effect
that in the engagements at the Royal Italian Opera
there was no clause prohibiting the artistes singing at
private concerts. It, therefore, appeared to him that
both parties considered some clause of this nature as a
matter of course. On the contract, therefore, being sent
back to the Weguers they saw the clause, and as they
say objected to it, and were only quieted by the as-
surance of Becher that it should all be
set right when they got to London. That
was denied by Becher, that it must be observed,
however, that might be, that in their correspondence
with Mr. Lumley they never alluded to the ciente, but
in their communication with Becher they spoke of it
more directly, but not in the way of proteet, but only
complaining of it as pert of a bargain which
they considered bard, but yet by which they
were then bound. It appeared to him, there-
fore, that they received tnis as a bargain by which
they were bound, and they were inclined with
them eyes open to leave it to Mr. Lumley to allow them
any relaxation of it. Ile did notetherefore, think that the
clause could be sad to have been unfairly introduced.
The next paint to be considered was the payment of the
money. Now be considered that clause to be an inde-
pendent and not a conditional stipulation, and ho did not
think the simple non-performance of it would of itself
take away all right of action. Though, however, he
did not consider it as a dependent condition, it was, he
flatlet, say of essential importance in the contract, and if
thde had been shown on the part of Mr. Lumley want
of taillingnees or good faith to comply with the stipula-
tion, he thought that gentleman would have come in
vain into that Court to ask it to exorcise that very
stringent power which it possessed by way
of einjecction. It would be incumbent, therefore,
on that gentleman not having paid the money,
as it was allowed he had not done, at the time stipu-
heed, to show under what circumstances the non-pay-
meet tack place, to answer the charge which was
brought against him of non-performance of the contract.
Ittc requisite, therefore, carefaily to examine what
-45',°'tc Place with reference to the payment of the 300/.
nthe Bth of February they found Madlle. Wagner ap-
plying to Mr. Lumley for an extension of time for the
commencement of her engagement, and Mr. Lumley at
once ga hi ve s consent to that request, but it did not ap-
pear that Mr. Lumley coupled with it a request for the
postponement of th
propo-
sition came f_ payment of the 3001. That propo-
rota M. Wagner• •
the 9th of March, himself, in the latter of
to Berlin, to u3.l;3zhen he re it to be sent, if not
the article des, and as ()n (as Mr. Bethell trensleted
April. N"-.7 he (Ith.hlry. Etaeon acquiesced) the 2d of
ere thee originally ean'diti ice-Chancellor) did not think
nonal, and he could not there-
fore think that the letter;l.
seetrodedeced anything conditional
into the arrangement.
Ali-Lumley
him that the direction
was no more than
inley information where
the wagners would he at that
which they wished the money jlalobee, and the manner in
Mr. Lumley swore that Dr. Bacher id. At that time
had 4001. of his in
his bandit, and he did not think that
in the case, as had been contended by
there was anything
Mr. Bothell which
required MreLumley to prove that that money remained
in Dr. Bachera; hand whole time.•
d Dr. Becher writing (ln the 10th of
March they found
asked Maul ma a letter to the
Waivers, in which he
which le'lle. Wagner where
money had • he
should pay the The____ in his hands
Wagnere
ready for her' acknowledged
of that letter, but denied
the receipt -now
as
that it contained anything to the pay-
ment Now that letter was n„ of the money. et pro-
duced, and all he would say . as to that was, that M.
Wagner by produe,init it, winch.
_h his d
done,
would at once have been oleic, if i 1 were true,
had been made. T
to prove that no such offer h o this
I 'n h
letter they found Madlie. Wagner rep_aa go 0: t_e.l2thof
March, telling Becher that she should bk
atnehwerin
up-to the commencement of Passion Wee , d during
the whole of that week tat Hamburgh. On the 18th
March they found the Wagners receiving a letter
from Mr. Lumley, consenting to an eelargement
of the time from the commencement of her engage-
nent, and informing there that Dr. Becher had un-
dertaken to forward to them a bill of Exchange for
3001. Now it did not appear on what day the Wagners
arrived at Hamburgh, and he could have wished very
much that it had appeared, for the next fact that they
found in the case was, that on the sth of April, the first
day in Passion Week, and the very day on which Madlle.
Wagner had informed Dr. Becher that she should reach
Hamburgh, and would meet him there for the parlx" of
being conducted by him him to England—they found
M. Wagner entering into an engagement with Mr-
Gye on behalf of his daughter, treating the contract
with Mr. Lumley as at an end, and entering into an en-
tirely new one. If he were asked to consider whether
they were justified in so doing by the non-payment of
the money, ho really felt obliged to say that the non-
payment of the money was sufficiently excused by the
circumstances which took place. The limits given to
Mr. Lumley were the arrival of the Wagners
at Hamburgh, and yet here they found them ;
Contracting a new engagement on the first day
Vil.a,Which Dr. Becher had been informed that the
t h e reef Wagners
would be at Hamburgh. He thought
Were not
that, nr.dor these cirmainstence.s, the defendants
a noacotii4stitied ,en the sth alerch in entering into
notarial preaet,,tt with Mr. Gym or in entering into a
existed tette mr.liattin CO to that which already
not think thee an-CT-I'l'2Y. If that were the case, he did
of any anas,,,aueuf,_,l.7 which took place afterwards was
and ,t,mstapcas =',lb•e, fact., the whole contract
tit t th„a:iarneinet its fulfilment or nen-
was tendered cu the tem of 'a end. The money
wits excused by the eitatialstz‘april, and an earlier tender
the contract was broken. which took place after
he bad the 3001. with him at
Hamburgh,
had sworn that
na reasoa to doubt but that he argil, and there was
had that
as a means of performing the comma sum with him
-t
Lumley.: The non-payment of thera°a the part of
time extending between the 15th of Marcr duri the
oft April wail sufficiently excused
and the lath
of the 9th of March, and also b the by the letter
communication
which had taken place with Bacher. e ---Lea"°n
really could
not doubt that there was a right of action
tract on this
, and as to what had been urged uponhim with re-