The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-03-08
The Musical Controversy-Th Case OF Caths.
rine Hayes


The Musical Controversy-1he Case or Catl,a-
rine Hayes
SUPREME COURT-sPECIAL TERM
Decision by Hon Judge Mitchell
The following opinion of Hon Judge Mitchell respecting
the alleged breach Of contract by Miss Hayes the vocal
ist will be read with much Interest
w. X anthony against r. r. Beak-On the 25sh OF
June 1851 agreement made between Beale, Of the
first part and John Henry Wardwe of the second part
whereby Beale agreed procure for Wardwe the exclu
sye services of Catherine Hayes and others to sing at
four concerts every week for three months the United
States. On the 18th of July following Wardwe assigned
his interest in the agreement to the plaintiff to Joseph
Wardwe On the 18th September, 1851 Miss Hayes and
he other singers began to perform in New York. but s
did not sing and could not and after the 9th of No
yember OF that year. On the 14th of November Joseph
Mardwe assigned to the plaintiff the second agreement
ana all claims arising under IT, The agreement provided
hat "a 600 sterling should be paid quidated damages
,or any preach Of the agreement The plaintiff sues
for that amount, and the defendant demurs The gues-
ton whether contract for the services Of another was
assignabe has generally arisen in relation TO appren
tees There is no doubt that IL be assigned as
to bind the apprentice; but that if the Assignment be
made and acted and the apprentice serve out his
time so that the benefit OF his services under The
ment is obtained by others with consent no one Int
the apprentice make any objection TO the nyiditv
of the assignment, even if he could Accordingly thc
apprentice obtains valid settlement in the place whers
he serves that town had had the his services
and cannot object 20 Cow, 65s9 Overseers of Hamilton
land 0verseers of Knox There dcta that although
apprentice Is not assignabe, yet the assignment
amounts to valid contract between the two masters,
that the latter shall have the services of the apprentice
and binds the parties although 1t does not bind the ap
prentice. % Cow, 1857, Ven. Alb. Apprentice F.l
Those dicta correct with certain qualifications.
the services be rendered pursuant to the assignment
then neither the assgnor assignee can object the
full consideration of their contract has been received By
each and the obligation to fulfil the contract necessarily
follows, there being nothing strictly Illegal immoral
in the contract. If the assignee had paid bonus foT
the assignment and the Of the apprentice
not rendered. moral obligation would result for the
sgnor to refund the amount paid and legal Obligation
also either under the contract account of the to-
tai failure Of the consideration Of the assignment If
tho services were partially rendered by the boy and
there was no proof that he did not mean to continue
TO perform them the assignee continuing to receive hs
services justice would require that the assignee should
ray what he had agreed to pay under such circum-
stances and If the boy should leave after serving part Of
his time the assignee might be left to the covenants Of
the assignor with him for his remedy, and be compelled
to pay all that he had agreed to pay there would be
only partial failure of consideration To this last class
OF cases belongs the Of Nckerson Howard, 10
j. r. 49, the Court then quoting and approving the
language of Lord Mansfield In the Of King Stork
land, Doug. 6970, that g though apprentice is not
strictly assgnabe transmssibe yet If he continue,
tnuaton OF the apprenticeship" But when the boy left
the service Of the assignee after being with him nearly
the assignee had paid the assgnor $780, and to pay
$50 at the expiration of the first year. and $50 ct
the end Of the term It was held that the assgnor coSd
assignee expressly assumed the risk Of the apprentice
absconding; Is Mass, 800 Davis vs. Coburnl The re-
suit of all the and dcta would be that the assign
ment gives rights against the apprentice and that
it gives between the contracting parties, except
far it is performed but that SO far as it per-
formed it gives to all parties the rights the
assignment were valid in all respects So also on the
death of tho master personal
claim on The services of the child and cannot maintain
action against who had entered into bond
condtionaly for the faithful performance by the apron
tce Of the covenants contained in the indenturc Of APP
premiership. (Str. ,266, Baxter Burfeld.)
The Court said the assets Of the masters estate
the masters covenant; but this must be UNDER
stood only if the boy continue to apprentice
The same principle has been applied to the guardian APP
pointed under the statute by father for his child and
1t has been held that the guardian could not assign the
custody Of his ward by deed win to any other person.
and the then given is because 1t personal trust
which be transferred whether the appointment
be by act of law of an individual e Mass, 300 quot
from strange The Chief Justice delivering the unanmos
resolution of the court said, 'The binding Of the sp
prentice to the man to learn his art and him,
without any mention Of executors and the words
confined is the nature of the contract for 1t IL
hduciary, and the lad bound from personal know
In this case, too the defendant covenanted with
Wardwen personally, and not with his executors.
or assghs and this %Vst have been
named, and his agents only in relation to the sale
Of tickets. Beale's representative is repeatedly
ment indicates the intention Of the parties to the
men that intention that the obligations should be
which show the same intention: Beale agrees to pro-
vide for Mr. Wardwell the exclusive services of Miss
Catherine Hayes" for three months, with the option
Mr. Wardwes part of prolonging the engagement for
the further period of two months giving to Mr. Beae
his representative months notice, and then Mr.
concerts oratorios but not to exceed four per
without the consent of Mr.. Beaes representative
INT W. was also to pay the whole Of the trsSss and
and to pay to Mr. Beaes representative the estimated
expenses of returning to England the day of the
Guiding of the engagement" And in other parts Il
shown that Mr. Beae might act by representative but
representative Of Mr. w. is alluded to. The
tract gave Beale the half Of the of the
ccpts any nights performance $780, and provided
that w. to give to Beales representative every
facility for ascertaining the amount Of the recoipi
at zach Inv nil wing i'm tn usra an
books and accounts and rendering true and just
count of all tickets disposed Of BY w. or his agents,
required. Although Miss Hayes is party expressly TO
this agreement 1t is evident that the contract made
through one who was in effect her agent or friend 70
whom she willing to conde arrangements made for
her, and that this must have been known to Wardwe
and that the whole character of the transaction was such
that neither party would enter into but for the
trust he she might have in the others Beale would
not be at liberty to substitute anybody for Miss Hayes
except when she unable to perform; and he might
well assume her friend agent to contract with Mr..
W that she would perform for Mr. "; when It would ee
parties to the agreement that she should perform for
anotherfor the assignee of Mr. w. and for the assignee
could be any number Of them and the contract would b
equally binding TO the last to the first matter what
might be his color, o. nationality his temper atnss,
Of immaculate purity fav0rite with the public
manager Of public exhibitions one despised by ALL
ers or one whose only object was to extort from them
the utmost farhng that the law would alow-one who
would know their weaknesses and excuse them,
who would gladly avail himself Of them and provoke
them that he might obtain the penalty which the bond
imposed for any breach Of the contract II cannot b
that gentlemen connected with profession which prs
itself its honor intended to make contract for the
professional engagements Of lady Of eminence in the
profession by which she would be obliged to SUBJ
INIT to the direction of any master, whoever he might
be- or else subject her friend to heavy penalty Miss
Hayes to sing in New York elsewhere the UNI
ted States She might be willing to sing and Mr.. BeaIe
to contract that she would sing In any place In the Un
ted States which Mr. w. might select but not anywhere
that assignee Of his might select The assignee
might select elect. place that would be destrustiys
in Mr.. wardwell personally that he would exercise
his right Of election considerably and honorsbly.
Wardwen had the option Of prolongng the engagement
for two months beyond the first three That option
which might well have been left to Mr.. W., gentleman
known it Is presumed both 70 Mr. Bealc and Miss Hayes
but which none parties leave to another
person exercise So w. to be at liberty to perform
operas In lieu VI concerts. That was discretion which