Blackburn, J. In this case the parties have entered into an agreements in writing, which is set out on the record.
The Court must ascertain the intention of the parties, as is said by Parke, B., in delivering the judgment of the Court in Graves v. Legg, “to be collecting from the instrument and the circumstances legally admissible in evidence with reference to which it is to be construed.” He adds: “One particular rule well acknowledged is, that where a covenant or agreement goes to part of the consideration on both sides, and may be compensated in damages, it is an independent covenant or contract.” There was no averment of any special circumstances existing in this case, with reference to which the agreement was made, but the Court must look at the general nature of such an engagement. By the 7th paragraph of the agreement, “Mr. Bettini agrees to be in London without fail at least six days before the commencement of his engagement for the purpose of rehearsals.” The engagement was to begin on the 30th of March, 1875. It is admitted on the record that the plaintiff did not arrive in London till the 28th of March, which is less than six days before the 30th, and therefore it is clear that he has not fulfilled this part of the contract.
The question raised by the demurrer is, not whether the plaintiff has any excuse for failing to fulfill this part of his contract, which may prevent his being liable in damages for not doing so, but whether his failure to do so justified the defendant in refusing to proceed with the engagement, and fulfill his, the defendant’s part. And the answer to that question depends on whether this part of the contract is a condition precedent to the defendant’s liability, or only independent agreement, a breach of which will not justify a repudiation of the contract, but will only to be a cause of action for a compensation in damages.
This is a question which has very often been raised; and the numerous cases on the subject are collected in the first volume of Sir E.V. Williams’ Notes to Saunder, p. 554, in the notes to Pordage v. Cole, and in the second volume, p. 742, notes to Petters v. Opie.
We think the answer to this question depends on the true construction of the contract taken as a whole.
Parties may think some matter, apparently of very little importance, essential; and if they sufficiently express an intention to make the literal fulfillment of such a thing a condition precedent, It will be one; or they may think that the performance of some matter, apparently of essential importance and prima facie a condition precedent, is not really vital, and may be compensated for in damages, and if they sufficiently expressed such an intention, it will not be a condition precedent.
In this case, if to the 7th paragraph of the agreement there had been added words to this effect: “And if Mr. Bettini is not there at the stipulated time Mr. Gye may refuse to proceed further with the agreement;” or if, on the other hand, it had been said, “And if not there, Mr. Gye may postpone the commencement of Mr. Bettin’s engagement for as many days as Mr. Bettini makes default, and he shall forfeit twice his salary for that time,” there could have been no question raised in the case. But there is no such declaration of the intention of the parties either way. And in the absence of such an express declaration, we think that we are to look to the whole contract, and applying the rule stated by Parke, B., to be acknowledged, see whether the particular stipulation goes to the root of the mater, so that a failure to perform it would render the performance of the rest of the contract by the plaintiff a thing different in substance from what the defendant has stipulated for in damages. Accordingly, as it is one or the other, we think it must be taken to be or not to be intended to be a condition precedent.
If the plaintiff’s engagement had been only to sing in operas at the theatre, it might very well be that previous attendance at rehearsals with the actors in company with whom he was to perform was essential. And if the engagement had been only for a few performances, or for a short time, it would afford a strong argument that attendance for the purpose of rehearsals during the six days immediately before the commencement of the engagement was a vital part of the agreement. But we find, on looking to the agreement, that the plaintiff was to sing in theatres, halls and drawing rooms, both public and private, from the 30th of March to the 13th of July, 1875, and that he was to sing in concerts as well as in operas, and was not to sing anywhere out of the theatre in Great Britain or Ireland from 1st of January to the 31st of December, 1875, without the written permission of the defendant, except at a distance of more than fifty miles from London.
The plaintiff, therefore, has, in consequence of this agreement, been deprived of the power of earning anything in London from the 1st of January to the 30th of March; and though the defendant has, perhaps, not received any benefit from this, so as to preclude him from any longer treating as a condition precedent what had originally been one, we think this at least affords a strong argument for saying that subsequent stipulations are not intended to be conditions precedent, unless the nature of the thing strongly shows they must be so.
And, as far as we can see, the failure to attend at rehearsals during the six days immediately before the 30th of March could only affect the theatrical performances and, perhaps, the singing in ducts or concerted pieces during the first week or fortnight of this engagement, which is to sing in theatres, halls, and drawing-rooms, and concerts for fifteen weeks.
We think, therefore, that it does not go to the root of the matter so as to require us to consider it a condition precedent.
The defendant must, therefore, we think, seek redress by a cross-claim for damages.
Judgment must be given for the plaintiff.
Judgment for the plaintiff.