, 1874-05-17
GRAU VS.. M'vlGKER.
rn11 Text Of Judge Drum
mond's Opinion.
ucVioker Justified in Retaining the
$4,000.
When the Right Of Action Begins on a
Broken Contract.


rsa following is the full text Of the late de-
..;on Of Judge Drummoud in the case OF GNU
.,ov;cker. An abstract was given in LEE
r.-,,r<r At the time, but, % tho questions pre-
.-..a N. ara novel and interesting, wo give YER
s~.:,, -snot as rorised By the Judge Mr. VIII
."~n PAGE appeared for Mr.. drau. aud Joseph
- ~ n,rl.on H. for Mr. McVicker. The facts will
:. sornd fully stated in the opinion:
a..<t.ons involved in this a1e Of much tn-
1ne IA liner pecultar. The facts Eeam to be
1ecs t;,,,v tnese that the defendant having IN his
uosstscn fo1oc funoe ~ r. -ecnvcr ths
nr1t .nd to tho declaration lied N tne case ,ns
sa,.nd.nt alleges as defense oontTEct maze oe-
txsen ~ ~ nm 9ha the pand, representing las Is in
stsosa,1s'ed to.o IN the original eontract) Mes:rs A.
chtzzo. copany agreea 10 Iena o hnS ~ Frhrnar
NJ, .os Fo- tie Atmee Open DouHc Company: ~ me
n tha lease tbs theatre was rented to the sa1u
esu and the said Maurice urau a. % r -, ~ ~
~ rress receipts utter deducting this 25o per week
h.sn 500 vas to be raid i'll daily lnstallInCnts OF S'o
rn vs. to be paid At tho end Of the engagement
r. Attendant relies upon the violation Of this cap-
... m tbe part Of the patnhf as defeaEo to the
aceiou. -.--
,,. ait Of the fac. that the leaso Saa not to com
,.eoce until the 9Th OF February and this aeston VIZ
instituted by Grau seaiuht Me' 1ckcr On 1ne lo. ~,
s.nu.Ty-of be1o1s the inase was TO
&, hst il the defendant is entitled TO tue set-on "
s,nt Il is upon the ground thas there was re1t ol
soa Y. nar ns.ns Grnp is ~ cantract by ei,suc
noca 10 Mcyicker to tia. eaect ecio1o tne tnS "0ea
dc lsase vas to oIerate had arrived.
Gratis LIABILITY.
,ra.. being the facts in tbs case, there ara TWO
ponts made on the demurrer put into tho pea u
stbt defendant. The drst is that GIna s.s no' PER
fs-e Int thLt o vas the agent OF other parties, WHO
s.s thenselycs Iable. 1 think this position u
1atsuable under the tenure OF the contract.
E-ruu,st.oces connected with tho agreement TO hhoW
a Grau w:s IN agent that it is stated no repre-
seuted c, l. Chizzol2 Co., aud, when he s,gned ls
H.me he f5ssedc i IN Ri: Ts5 GS A1'es o''
But it wi1 be observed that the contract is made
VIII G.au personally. lie is the " nasnHseE 60 naheo
ma Of he contrac. is Maurice Grau representing
N.s..s. C. 4. Chtzzola Co.. Manager o. lae A1es We.
Op,a Boufta Company" md the contract fsatos ua'
h. G1.u is to have tho privilege Of giving certain
number of performances each week. and the contract
nhoy7a that Grau was himself personally pound o5
is terms "Thc said Maurice Gruv, u consideration
Of tie aboYe agrees I1J to the sad McstcHef' OF
his representatives, the BUM Of e, 800 etc.
So that while he represents certain persons, una -
tn 6;1n and b. pcrsonally ia have the privilege Of
giving performances and TO pay the VARIOUS su1 "
money. c =; TIM
contract and also to his signature, indicat nothing
more than description Of the Fe1son hiu'seE, ana 40
not show that theee were principals n se
Mcvckec made the contract. aud to who,n 1t WIS
T!oated on Grau's part McVicker cnuld loot for the
damages growing out OF its non-f -fulhllncnt
7FuEy DOES THE nIGHT OF ACTION DEGE7
The second objection hes already been suggested.
th.t ussmuch this suit was commenced on the Ign
~ Jauuary 1874 there ccpnlte liability on the
nart Of Gs4u at that 1iue by which b1cVicker could
hcid him responsible concedng that be had given no
tca to acyickcr before that he would not comply WITH
is terms, as 1t not to begin until the 91n o.
February, snd there WAS an opportunity Tor M1n
10 reract or, it Is called in the books there Tas
locus poeenti1e and some authorities decIare .nn1
law there is this poentteuae, and that he sha
have chance to recount and say, IT was wrong but
Thcn the time comes will perform ny sontr1e
there caunot be breach Of tho contract strictly So
called until the time has arrived when its Fer
m M WIS to t.c eanld ba no. bpe,eh Of
ti4is contrnct until after the 9Th ot February
1874 because that the date OF the
Of tie contract. There are othe- authorities: nov,
ever which hold the contrary End in the conflict Of
autho,ity upon tie subject the question IL, WHAT IS
the true rule in Of this lind AMI Tue cn1e1
tnpo-tapce perhaps of this is that 1t gives tne
opIur.unty determine III the midst OF tho CONNER
cf authority upon thi. subject whether IN point o.
faet there could 10 nTeae4 q LUIS m ~
action against Grau prior to the 9th Of 1918
and have come to the conclusion that there may Dc
such BREACH and that that Is the nus rue Ii suel
cases.
4 CASE IN POINT.
think. In other words, that the principles deeoee
in tbs case Of Hochster Y. DelasouI renorteo IN ~
10th English Law and Equity Reports II, arc sonna
That w.s case where TWO parties agreed Win eacl
other by which one VIE to cntcr the employment o.
lie otAer, and TO perform contract which was y
eommence On the lst Of June. The party who = cen N
uenccd the action agreed to he 3 courier o1 u
defendant on the Continent o. Enrope LOT .at tn un
l,tyeI the defendant h1d notified TIE p4alnt'u l1a
BE- would not perform the contract In other words
that he did not want him as courier. 1hereopon
bEfo,s the lei Of June, the plaintlG commenced Al
aclon agaiust the defendant and recovered, and IL
question calne up before the Court Of Queen ncncn
whether tho notion under such circumstances cou,a U
pajptairol And the unanimous opinion Of the Cour
we., =. given BY Lord Campbell. that tie action va
rantainah.e, and on the ground that, although IN
Commence Sill. iuasmuch us the defendant had ap
psscl the plaintiff tha. be would not perform it. th'
plaintiff not bound to wait either until thg ist o.
for three months-the 1st u septsnoer-telo7e u
brought the action. He could treat the breach as CON
ground that there was legal 1inbiity, on the part o
ihe defendant to respond in damages. Ant
as reasoning in that Il sssa,a TO M
the arguments upon the subject. For example, thez.
would be jus: much to s2y that Tue acs.oi
could not he maintained untn the lst o. sep'eosI
that the action could not be maintained Tor preach
Frior to the 1Et Of Juuc because there we're tnfe'
months during which the service was TO be
al IN one sense could not BE- saa haI mere @ w H.
ts:se months had expired. And WHICH, IN taal cas-
and In this the party who had become bound, notifies
le ce-t1iny ought not 10 complain If the other TAX
him st his word for it may make great Jill terence
hi1 as to what he shall do, to other contracts Ii
ay MIKE whether or not that contract Is binding OF
hin. There are several cases wheTe contracts In
run on for years. and 1t would be unreasonable N euei
Acasa to require party 10 wait all that time before u
Eoull institute action agalns: the delinquent per
suo for damages.
THE HEITED HEIR-
seems to that 1t Is the better rule to hod tha
ne party who has refused to perform LIS consfnct
haft 1t once to action, and that whatever af1se
ter~ara may arise in consequence OF the time no
hav1ng como Of not having expired. should oe con
toeEcd In estimating tho damages For instance.
consequence Of the discharge OF servant, or o. "a
fdusal Of person to require or receive any o. III
tess1ee which would tako tie the se1saut has the o
fol1stty Ct engaging IN oher employment, that ca'
II eao~n in mitigation Of damages and one oi Tue oo
1ectons that occurred to ut the argument thul
mar rot have the weight that then supposed, namely
t the staus Of the parties in relation to the exeE
st0e1r liability must be considered as d1ed "ne'
tae sutt w2B commenced. That IL not go. On II
eoitteEy, It i competent to chow any facts which ha
occurred subsequent to tho commencement OF IN
II's Tor the purpose Of determining the amount
ursss which the party recoser,-or, TO nIfF It =
u:s case, the amount ct damages which The defend
-. could set of. For example, this VICE tic case OF
eaIe lessed by the defendant to Gcau for Fafticl
Ut tue. II may Ec that IN Gru failed to cozlp
fa biz contract the defendant could lease bis theatr
Dsotae oae else,
GRAu LIABLE FOE THE WHOLE sCM.
l