Lumley v Wagner: The Nonperformance of the Cantatrice

By Legal Eagle

I love cases. I simply love cases. I love the drama of them, and I love to go hunting for extra facts about the case. The case of Lumley v Wagner (1852) 1 De GM & G 604; 42 ER 687 involved Johanna Wagner, a famous German singer (and the niece of Richard Wagner). She contracted with Mr Lumley that she would sing at his theatre for a certain period of time. Included in the contract was a term that she would not sing anywhere else without written authority from Mr Lumley. Subsequently, Ms Wagner and her father agreed to sing for Mr Gye at Covent Garden for a larger sum than that promised by Mr Lumley (possibly partly because Mr Lumley had apparently not paid Johanna, despite the payment stipulated under the contract). Mr Lumley sought to restrain Johanna Wagner from singing for Mr Gye based on the clause in her contract in which she had promised not to sing for anyone else. Mr Lumley said he was just enforcing the negative covenant, not requiring the specific performance of the entire agreement. The Court of Chancery were prepared to issue an injunction to restrain the negative covenant, although they were not prepared to enforce Ms Wagner’s positive obligation to sing (to force someone to perform a service is an impermissible imposition on their individual autonomy – whereas if you just restrain them from singing for someone else, you’re not forcing them to positively sing for the person they contracted with). There was a very obvious tone in the judgment to the effect that, “You may think conduct like this is fine in Germany, but we English honour our promises.”

There was then a companion case, Lumley v Gye  (1853) 2 El & Bl 216; 118 ER 749, where Mr Lumley sued Mr Gye for the economic tort of inducing breach of contract. A majority of the court held Mr Gye liable for inducing Ms Wagner’s breach of contract using the cases about seduction of servants, among other things. Coleridge J was very doubtful about this extension of the law and said in dissent, ‘None of this reasoning applies to the case of a breach of contract: if it does, I should be glad to know how any treatise on the law of contract could be complete without a chapter on this head, or how it happens that we have no decisions upon it. Certainly no subject could well be more fruitful or important; important contracts are more commonly broken with than without persuaders or procurers, and these often responsible persons when the principals may not be so.’

Via the Obligations Discussion Group, I became aware of this video:

This is also the Saturday chit-chat post.


  1. Posted December 8, 2012 at 6:45 am | Permalink

    if the singer had not been paid by the other party to her contract then according to Me v Ranger Trucks, all bets are off.
    When they lost a large valuable and urgent shipment, I was advised that I would have to pay the account before I could take any action at them.
    It transpired that the driver had been sacked so he just disappeared with his truck full of deliveries (in the Olden Days of 1980 before Sackees were instantly escorted off the premises).
    I love cases too, when they are not my own.

  2. Posted December 8, 2012 at 6:54 am | Permalink

    oops. Ranger Trucks was 2 other cases. It was a road freight company and thank god I have forgotten their name.
    My direct ancestor has a precedent in law of 1908 regarding account payment Howe&McColough,Bendigo.

    The language of the law often requires a second read-through, and I wonder if a word is missing in this –
    ‘important contracts are more commonly broken with than without persuaders or procurers, and these often responsible persons when the principals may not be so.’’

  3. Posted December 8, 2012 at 8:05 am | Permalink

    SAD Saturday chit-chat of the death of Jacintha Saldanha in London, after answering a 5:30am call which seemed to be the queen of England, and so flustered her into putting it through to the patient’s room and thereby enabling a world wide media ‘tornado’.

    The Guardian reports: The prank call was pre-recorded and vetted by lawyers before being broadcast to listeners in Sydney.

    The prank call was deeply embarrassing for the hospital, which is the medical institution of choice for the royal family.

    Lofthouse said on Tuesday the hospital was considering whether to take action against the radio station.

    He added: “I’ve received advice that what the Australian broadcasters did may well have broken the law. On the other hand, they’ve apologised for it so we’re going to have a long and careful think about what, if anything, we do.”

    In their initial apology the two presenters said: “We were very surprised that our call was put through. We thought we’d be hung up on as soon as they heard our terrible accents.’

    This poor woman, living away from home to work night-shift, given no special guidance re the VIP patient, and feeling responsible for bringing ridicule on her employer and family, (who now have the extra burden of media on their doorstep) has apparently killed herself.
    Max Clifford is in trouble and wouldn’t let suicide cross his mind for a second.

    ‘media tornadoes’ are a frightening new threat. Nobody can be prepared for being the centre of one, and now a great deal of identifying information about her children and partner is on the www.
    The station Lawyers who cleared the prank, now realise they should have done a cause-and-effect study as well.
    RIP Jacintha.
    ‘media tornadoes’ are

  4. kvd
    Posted December 8, 2012 at 12:16 pm | Permalink

    [email protected] what proof are you relying on for this? The SMH is running a ‘live update’ and the UK papers are all full of it – but I can’t as yet actually see any clear statement that the sole cause of this tragedy was the tasteless antics of a couple of Australian juveniles?

    I like my witches burned to a crisp as much as any civilised person. But I do prefer they be absolutely, positively, indisputably guilty before the lighting of the pyre.

  5. kvd
    Posted December 8, 2012 at 12:31 pm | Permalink

    More to the point, how come she was Mlle Johanna Wagner and not Frau or Fraulein on that introductory playbill?

  6. kvd
    Posted December 8, 2012 at 1:27 pm | Permalink

    Jacintha Saldanha was working on reception when she took the call …….She put the call straight through to the Duchess’s ward, where a nurse spent two minutes chatting about the Duchess’s condition and treatment

    Honestly, I’m more inclined to think this was a ‘fortunate coincidence of events’ for the hospital administration, given that it diverts from their apparent poor/lack of protocol for such a situation – which was certainly not new to them.

  7. Posted December 8, 2012 at 1:30 pm | Permalink

    LE – Lumley then sued Gye for his crime of seducing the singer with a bigger amount of money (which since Lumley didn’t pay her at all, could have been one penny)
    so I wondered how this would go in the Sydney real-estate market, re gazumping.

    KVD – what proof for what? I am not blaming the radio idiots at all.
    most of my comment is a straight cut from The Guardian.

    The real error was that at 5:30am GMT, the hospital switchboard should have had a security-trained person taking all calls while the foetus-Heir was in residence. This fail is probably down to the surprise element of the need, and because William is trying to live a less-Royal life – and look where it gets him.
    At this stage, 12 hours later, the whole world
    (just click Google News View In Real Time) is mistakenly blaming the DJ’s totally.
    What if THEY suicide?

  8. ken n
    Posted December 10, 2012 at 11:23 am | Permalink

    So, LE, the tort of inducing breach of contract still exists? It seemed to me that this was a hangover from feudal times and an exception to that principle (can’t remember who said it) about the law moving from status to contract.

  9. Posted December 10, 2012 at 2:22 pm | Permalink

    Wishing you all a Merry Christmas.

  10. Mel
    Posted December 12, 2012 at 3:52 pm | Permalink

    Very interesting Frontline documentary on SBS a couple of nights ago about the incredibly incompetent and sloppy nature of “forensic science” in America. Major points:

    – Apparently in that bastion of small government and private enterprise that is the United States, one can acquire certification in many forensic science disciplines by paying a fee to a money- making college and doing an open book online test with a 99% pass rate.

    – There is no regulation, auditing or anything else of forensic experts. Forensic experts can and do simply make shit up.

    – An independent researcher did a small test on a number of experienced finger printers and found that “cognitive bias” in the form prejudices based on extraneous information was crucial in determining whether a finger printer would find a “match”.

    – American judges are so time pressed and scientifically illiterate that they will allow the most fanciful and scientifically untested expert testimony into a court room provided the expert has a “credential” – ie a dodgy certificate gained on the internet

    – poor people don’t stand a chance, since they can’t afford to bring their own gun-for-hire experts to court and their lawyers are not always anywhere near as good as the District Attorney’s team.

    My conclusion-

    * America is a plutocracy in which the rich and the poor live by different rules and in parallel universes
    * The Adversarial system of law is not delivering justice under current arrangements.

  11. Mel
    Posted December 12, 2012 at 3:56 pm | Permalink

    comment caught in mod folks. ta.

    ps. I think I just saw santa… Oh no, it’s the fat bearded guy next door, my bad …

  12. Mel
    Posted December 12, 2012 at 6:17 pm | Permalink

    I don’t think that is nearly good enough, LE. We need some rigorous ongoing random testing to see if our finger print experts and “dead body smell in a can” experts are spoon bending fraudsters as per their American counterparts.

  13. Mel
    Posted December 13, 2012 at 4:13 pm | Permalink

    Good God, it just keeps getting worse.

    Welcome to the libertarian face of America.

  14. Mel
    Posted December 13, 2012 at 6:28 pm | Permalink

    Thanks, LE. That is what I suspected.

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