3 B. & S. 825, 122 Eng. Rep. 309 (1863)
In May 1861, plaintiffs S. Denis Taylor and Lewis entered into a written agreement with defendants J. Caldwell and Chas. Bishop for the use of the Surrey Gardens and Music Hall in Newington, Surrey.1 The agreement, dated 27 May 1861, provided that the defendants would let and the plaintiffs would take the premises on four dates—17 June, 15 July, 5 August, and 19 August 1861—for the purpose of presenting a series of grand concerts and day and night fetes.2 The plaintiffs agreed to pay the defendants £100 for each day of use.3
The contract detailed the respective obligations of the parties.4 The defendants were to provide at their own expense an efficient military and quadrille band, al fresco entertainments, fireworks, illuminations, ballet performances, tight rope acts, Chinese and Parisian games, boats on the lake, and aquatic sports, while the plaintiffs were to supply the concert artistes, including Mr. Sims Reeves, and to receive all entrance monies.5 Payment was to be made by crossed cheque on the evening of each event, and the agreement included the phrase 'God's will permitting' in connection with the plaintiffs' obligations regarding the artistes.6
On 11 June 1861, the Music Hall was destroyed by an accidental fire.7 The fire occurred without the fault of either party and rendered it impossible to hold the planned concerts and fetes on the scheduled dates.8
The plaintiffs commenced an action against the defendants for breach of the agreement, claiming damages for monies expended and other injuries resulting from the defendants' refusal to allow use of the premises.9 At a trial before Blackburn J. at the London sittings after Michaelmas Term 1861, a verdict was returned for the plaintiffs, with leave reserved to enter a verdict for the defendants on the second and third issues.10 In Hilary Term 1862, the defendants obtained a rule to enter a verdict in their favor generally, and the rule was argued before Cockburn C.J., Wightman, Crompton and Blackburn JJ. in Hilary Term 1863.11
Whether the agreement between the plaintiffs and the defendants constituted a demise of the Surrey Gardens and Music Hall or merely a contract to provide their use on the specified days?12
The distinction between a lease and a contract for use depends on the intention of the parties as shown by the whole agreement. Nothing depends on that distinction here.13
No. The parties inaccurately call this a letting, and the money to be paid a rent. But the whole agreement shows that the defendants were to retain possession of the Hall and Gardens so that there was no actual demise. The contract was merely to give the plaintiffs the use of them on those days.14
The agreement constituted merely a contract to provide the use of the premises on the specified days, though the distinction is immaterial to the outcome.15
Whether the accidental destruction of the Music Hall by fire before the first scheduled performance date excused the defendants from performing their obligations under the agreement?16
Where, from the nature of the contract, it appears that the parties must have known that performance could not be fulfilled unless some particular specified thing continued to exist. In the absence of any express or implied warranty that the thing shall exist, the contract is to be construed as subject to an implied condition that the parties shall be excused if, before breach, performance becomes impossible from the perishing of the thing without default of the contractor.17
Yes. The effect of the whole agreement shows that the existence of the Music Hall in a state fit for a concert was essential to the fulfilment of the contract. Such entertainments as the parties contemplated could not be given without it.18 The Music Hall was destroyed by accidental fire on 11 June 1861 without the fault of either party and so complete that the concerts could not be given as intended.19
Therefore, the Music Hall having ceased to exist without fault of either party, both parties are excused from further performance.20
The accidental destruction of the Music Hall excused the defendants from performing their obligations under the agreement.21