LAW REPORTS.

Dominion, Volume 6, Issue 1838, 26 August 1913, Page 9

LAW REPORTS.

SUPREME COURT. CHORAL SOCIETY & SINGER'S FEE. THE NEWBURY CASE, JUDGE'S INTERESTING RESUME. His Honour Mr. Justice Sim gave judgment yesterday in the . appeal brought by the Royal Wellington Ohoral Society .against Philip Newbury, professional singer (respondent). In this caso tho latter hadi been paid l only fifteen guineas for singing the tenor solos in "Cavalleria Rustioana," instead of tho agreed fee of twenty-fivo guineas. Tho deduction hadi been made on tho grounds that lio Iliad not attendod a rehearsal, but respondent succeeded in liis claim for the balance wflion the case was heard before Mr. Riddell, S.M.

His Honour stated that tho Magistrate had found; that there iras a necognisod and' well-known usage among professional and amateur singers to attend at least one rehearsal prior to tho production of n musical ivork such as "Cavalltsria Rusticana," and held that tho contract carried 'with it an obligation to attend ono rehearsal. It was arranged that tho respondent should attend a rehearsal on May 31, but he I was unable through illness to do so. ' Tho next and final rehearsal was held? on Juno 3. Respondent did- not attend that boeauso ho was fulfilling a professional engagement in Wanganui on that evening. Ho took part, however, in the performance oil Juno 4. On the following day the Choral Society intimated to tho respondent that, as ho bad not attended any rehearsal, ho Would not bo paid moTe than 15 guineas. Tho Magistrate had held that tho Sooiety's remedy for the respondent's failure to attend a rehearsal was an action for damages, and ho hadi therefore given judgment in favour of tho respondent for tho amount of his claim. Usage In Such Matters. Tho question to be determined was whether that decision was riglit in point of la\V. It had) been contended on respondent's belialf tihat the usage found by tho Magistrate to exi?t was not reasonable and was not binding. Tho usage appeared to bo a reasonable and proper ono, said his Honour, and he agreed that it was binding on tho respondent. Suoh a usago was t<i bo considered as part of tho agreement, and where that agreement was in writing tho usage was to bo treated dxaotly as if it 'had been written out at length in such agreement. Rights of the Parties. _ 'What,. then, was tho effect on tho rights of tho parties of tho respondent's failuro to attend a rehearsal? A stipulation that a singer should attend rehearsals might be, in certain circumstances, such a vital part of tho agreement that a breach of it would justify a repudiation •of the agreement. The question whether tflio stipulation in this caso was of that oliaracter did not arise now, for tho reason that tho society did not attempt to repudiate the contract, but allowed tho respondent to take part in tho performance, notwithstanding his failuro to attend any rehearsal. That faii'lwro was nono tho less a breach of his contract, and the respondent, there- ■ fore, did not porform his oontract to sing at a rohe,mai and also at tho performance. Tlho general rulo was that while a special oontract remained unperformed, tho party whoso part of it was unperformed could not sue to rctjover compensation for wliat ho had' dono until tho wliolo had been oompleted. There was, however, certain exceptions to that rule. Ono exception consisted of eases in which something had "been done under a special oontract, but not in strict ficcordanco with its terms. In such a case tho party could not recover the remuneration stipulated for ill the' contract, beoauso ho thad not dono that which was to bo tho consideration for it. Still, if tho other party had accepted any benefit from his lalionr, it would bq -unjust to allow him to retain that without flaying anything. Tho law, therefore, implied a new promise on his part to pay such remuneration as tho benefit accepted by him was reasonably worth, and to recover that quantum of remuneration an action of "indebitatus assumpsit" was maintainable. His Honour's Decision. The present caso caino within that exception, and Dho,-appellant, - having accepted tho bonefit of the respondent's services by allowing him to sing at tiho performance, was bound to pay him as remuneration tho sum that those services woro reasonably worth. Tho principal .part of the consideration for tho fee of 25 guineas was certainly tile sing-' ing at the performance, and liis Honour thought that tho respondent's services wero worth moro than tho sum paid'by t'lio sooioty. Ho fixed the sum to he paid at 21 guineas. The appeal was allowed, and tho case was remitted to tho Magistrate's Court so .that judgment might bo entered there for tho respondent for six guineas, with costs to be fixed by the Magistrate. Tito respondent was ordered to pay the costs of tihe appeal (£5 OS.) and disbursements. Mr. A. W. Blair and Mr. R. H. Wobb represented the appellant society, and Mr. I'. H. Putnam appeared for respondent. AMICABLY SETTLED. When tho caso \Valtor Mark Eaton v. John Wells Chapman, order for rescission of oontract, was called, Mr. W. C. Tringham announced that tho ease had been settled by mutual agreement. His Honour: lam very glad to hear it. Mr. Tringham added that tho settlement was without any admission on' defendant's part that tho statements which had been made wero true. It was purely a mutual arrangement between the two parties.