1 De G. M. & G. 604, 42 Eng. Rep. 687 (1852)
Benjamin Lumley, lessee of Her Majesty's Theatre in London, filed a bill on 22 April 1852 in the Court of Chancery against Johanna Wagner, her father Albert Wagner, and Frederick Gye, lessee of Covent Garden Theatre.1 In November 1851, Joseph Bacher as agent for the Wagners concluded a written agreement in French dated 9 November 1851 at Berlin.2 The agreement recited that Lumley and Johanna Wagner with her father's consent had concerted the contract for her to sing at Lumley's theatre.3 The bill set out an English translation of that agreement.4
The contract bound Johanna Wagner to sing for three months at Her Majesty's Theatre starting 1 April 1852, including the journey time, and to perform specific parts in order such as Romeo in Montecchi, Fides in Prophète, and Valentine in Huguenots.5 She was to sing twice a week for a salary of £400 sterling per month, with payments arranged through letters of exchange and weekly disbursements.6 Additional terms addressed illness, extra performances at £50 each, and the exclusivity of her roles at the theatre.7 If Lumley ceded the enterprise, the contract could transfer to a successor.8
When Lumley met Bacher in Paris, he objected to the absence of a clause preventing Johanna Wagner from performing elsewhere without consent.9 Bacher then added an article in writing to the agreement providing that Mademoiselle Wagner engages herself not to use her talents at any other theatre, nor in any concert or reunion, public or private, without the written authorization of Mr Lumley.10 This addition was signed by Bacher for Johanna Wagner and authorized by her.11 The bill alleged that the Wagners subsequently made another engagement with Gye for a larger sum to sing at Covent Garden.12
The bill further alleged that Gye had full knowledge of the prior agreement with Lumley.13 The Wagners had sent a protest to Lumley repudiating the agreement on the ground that he had failed to fulfil the pecuniary portion of the contract.14 Lumley prayed for injunctions restraining Johanna Wagner from singing at Covent Garden or elsewhere without his permission, restraining Albert Wagner from permitting such activity, and restraining Gye from accepting her services during the agreement period.15
Whether the Court of Chancery may grant an injunction to restrain Johanna Wagner from singing elsewhere during the term of her contract with Benjamin Lumley?16
A court of equity may grant an injunction to enforce a negative covenant that is ancillary to an affirmative agreement for personal services.17 This holds even when specific performance of the affirmative covenant cannot be compelled.18 The negative stipulation binds the conscience to literal performance of the contract.19 It prevents the plaintiff from being left to the chance of damages assessed by a jury.20
Yes. Benjamin Lumley filed the bill on 22 April 1852 alleging that the contract concluded through agent Joseph Bacher bound Johanna Wagner to sing for three months at Her Majesty's Theatre beginning 1 April 1852.21 The contract contained the added article prohibiting her from using her talents at any other theatre without written authorization.22 The bill further alleged that Johanna Wagner and Albert Wagner subsequently contracted with Frederick Gye for her to sing at Covent Garden for a larger sum while Gye possessed full knowledge of the prior agreement.23 Although the Court of Chancery cannot compel Johanna Wagner to perform the designated roles such as Romeo in Montecchi, Fides in Prophète, or Valentine in Huguenots at Lumley's theatre, the negative covenant remains enforceable by injunction.24
This restraint may cause her to fulfill the engagement at Her Majesty's Theatre.25 It avoids exposing Lumley to vindictive damages that a jury might award for singing at a rival establishment.26
The Court of Chancery may grant an injunction to restrain Johanna Wagner from singing elsewhere during the term of her contract with Benjamin Lumley.27
Whether the negative covenant not to perform at other theatres is enforceable by injunction in conjunction with the affirmative obligation to sing at Her Majesty's Theatre?28
The negative stipulation not to sing elsewhere forms one contract with the affirmative covenant to sing at a particular theatre.29 It is ancillary and concurrent with that covenant.30 The negative stipulation is enforceable by injunction to maintain good faith even though the court lacks jurisdiction to order specific performance of the personal service obligation.31
Yes. The agreement between Benjamin Lumley and Johanna Wagner is not composed of two correlative acts but consists of a single contract.32 The obligation to sing twice weekly at Her Majesty's Theatre for £400 per month operates together with the negative article added in Paris.33 She would not use her talents at any other theatre or concert without Lumley's written authorization.34 The bill alleged that the Wagners repudiated the contract and engaged with Frederick Gye at Covent Garden, thereby violating the exclusivity of the roles and the prohibition on other performances.35 Equity operates to bind the parties to true and literal performance of their agreements rather than permitting departure at pleasure.36
The injunction restraining Johanna Wagner from singing at Covent Garden or elsewhere during the three-month term therefore enforces the ancillary negative covenant without attempting to compel the affirmative personal service directly.37
The negative covenant not to perform at other theatres is enforceable by injunction in conjunction with the affirmative obligation to sing at Her Majesty's Theatre.38