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Decisions of the Superior Courts of New South Wales, 1788-1899

Meredith v. Wyatt [1839] NSWSupC 46

contract, breach of - theatre - Victoria Theatre

Supreme Court of New South Wales

Stephen J., 6 July 1839

Source: Sydney Gazette, 9 July 1839[1] 

(Before Mr. Justice Stephen and a Special Jury.)

Meredith v. Wyatt. -- This was an action brought by the plaintiff, a licensed publican, and late a member of the Victoria Company, against Mr. Joseph Wyatt, the proprietor of the Victoria Theatre, to recover damages for a breach of agreement. It appeared from the evidence that in the month of July, 1838, an agreement was entered into between the parties in the present action, by which it was agreed that the plaintiff should be employed as manager and actor at the Victoria Theatre, under the control of the defendant, for twelve months, at a salary of six pounds a week so long as the theatre remained open, and two benefits, for each of which the defendant guaranteed the plaintiff the sum of one hundred pounds. The agreement was entered into at Hobart Town, for which place it seems the plaintiff arrived about three days after the stipulated time. On his arrival in Sydney the defendant neglected or declined to fulfil his part of the agreement by appointing him to the situation of manager, which was at the time filled by Mr. Lazar. In explanation of this proceeding the defendant urged that several of the company had declined to act under the management of Meredith. The plaintiff, notwithstanding the non-performance of the agreement, performed on several occasions, his parts being cast for him by Mr. Lazar, until, on the announcement of a piece called ``Bound Prentice to a Waterman," he was cast for the character of Hintz Jacob, which part the plaintiff refused to sustain, and he accordingly returned the manuscript of the character to Lazar in a note stating his refusal. He subsequently, by the direction of his attorney, wrote to Mr. Wyatt stating his reasons for refusing to play the part assigned him, and offering to perform his part of the agreement which had been entered into, as manager and actor. The next day, in company with a witness, he waited upon Mr. Wyatt to ascertain his determination, when he was told by the defendant that as he had refused to play a part assigned him he should discharge him, which he accordingly did in a letter he wrote to him. The plaintiff admitted having received an advance of £100, which he deducted from his claim, making it £412, including £200 for the benefits guranteed[sic], and the year's salary at £6 a week. Mr. Joseph Simmons, the comedian, was called to prove the nature of the duties of a theatrical manager. The examination of this witness caused much merriment. He stated that there were sometimes two managers of a theatrical company, one called the acting manager and the other the stage manager. The duties of the acting manager be defined to be to watch the interests of the proprietor, and to exercise a control over the finances of the theatre, while the duties of the stage manager, as view in the colony, consisted in selecting the pieces for representation, casting the characters and performing the functions of prompter and part of those of the property man. In the Victoria company, however, the situation of acting manager he said was a sinecure, the proprietor performing the duties and looking after his own interests. The witness stated that he had been connected with theatricals since he was of the age of twelve years; he had been connected with a company of theatricals at Lynn, in Norfolk; had performed at the West London Theatre, and at the Theatre in Catherine-street. The plaintiff's line of characters be defined to be low comedy and eccentric comedy; the lira of characters such as Captain Copp and Paul Pru. The part of Hintz Jacob he considered would be detrimental to his reputation. He added that the plaintiff had sustained the parts of Morblieu in ``Monsieur Tonson," Farmer Ashfield and Dr. Panglass; he was not accounted a good study, but gagged a good deal. He had known him perform the parts of the Ghost and Grave Digger in ``Hamlet," but he thought the part of Romeo would be about as far from Meredith's line as the Starved Apoothecary from his person. He said that he should consider a manager, engaged under the control of the proprietor, would not be justified in refusing any character assigned by him. Mr. Weavell, a licensed publican, was called, and proved that the agreement had been recognized by the defendant, who had advanced him the sum of £100. For the defence it was contended that the plaintiff, by receiving characters from Mr. Lazas had virtually resigned his claim to the management. To prove that he had so recognised Mr. Lazar, that gentleman was called to give evidence. He stated that Meredith had received several parts from him. In explanation of the reason for casting him for the character of Hintz Jacob, he said that the piece was a heavy one, and that the plaintiff and Lee were the only persons who could perform German parts; two such parts occurred in the piece, one, which was the longest and best, was assigned to Lee, who, he reckoned, was a better study than the plaintiff; Hintz Jacob's dialogue consisted of twenty-seven words. The plaintiff's counsel enquired of the witness whether the part could not have been allotted to a supernumerary, whether this could not be done by one? [``]Eliza screams -- Hintz rushes forward, seizes her, and carried her off, accompanied by music." The witness replied that the success of a melo-drama depended more on the acting than on the dialogue of a performer, and that consequently, all the rest of the company being cast, there remained no remedy but to assign this part to the plaintiff. Mr. Lazar added, that he should consider that a person engaged as manager under the control of the proprietor would have no right to refuse any part assigned to him by the proprietor, but he further observed that he as manager so engaged, and with the knowledge that another person had been appointed in his place, should think himself justified in refusing a part assigned to him by that person. In summing up the Judge put it to the Jury to consider whether they thought the plaintiff had relinquished his rights. The Jury returned a verdict for the plaintiff for £382, the full amount of his claim, deducing £30 for five weeks the theatre was closed during the prevalence of the influenza.

 

Notes

[1] The tight binding of this newspaper makes the edges of each line difficult to read.  See also Sydney Herald, 8 July 1839 (and see the theatrical comment on 1 July 1839); Australian, 9 July 1839, which have less full accounts.  It is the theatrical details of the Sydney Gazette's account that led to the choice of this version for publication, despite the difficulty of reading it.

Published by the Division of Law, Macquarie University