Lumley v Gye (1853)

Ordinarily, if A breaks a contract with B, B's only remedy is an action on the contract against A. This case asked whether B can also sue C, a stranger to the contract, who deliberately persuaded A to break it. The majority said yes. It is the foundation of the tort of inducing breach of contract: knowingly and maliciously procuring a party to break a contract with the plaintiff, causing him damage.

It is also a classic illustration of a court extending an old, narrow action (enticing away a servant) by principle to a new situation — and of a powerful dissent arguing that judges should not do so.

The plaintiff, Lumley, was lessee and manager of the Queen's Theatre, where he staged operas for profit. He had contracted with the singer Johanna Wagner to perform at his theatre for a fixed period (from 15 April to 15 July), on the condition that she would not sing or use her talents elsewhere during the term without his written consent.

The defendant, Gye, knowing of this contract and, as alleged, maliciously intending to injure the plaintiff, enticed and procured Wagner to refuse to perform and to abandon her contract. The declaration had three counts:

1. procuring Wagner to refuse to perform and to abandon her contract before the term began;
2. procuring her to continue refusing to perform during the term, after the Vice-Chancellor's order (affirmed by Lord St Leonards) restraining her from performing at the defendant's theatre;
3. that Wagner had been hired as, and had become, the plaintiff's "dramatic artiste", and the defendant maliciously procured her to depart from that employment.

Special damage was alleged in each count. The defendant demurred — that is, he argued that even if all these facts were true, they disclosed no cause of action.

1. Does an action lie against a person who maliciously procures another to break a contract with the plaintiff, causing him damage?
2. Is the old action for enticing away a servant confined to the strict relation of master and servant (as under the Statute of Labourers), or does it extend to a contract for exclusive personal services such as an opera singer's?
3. Does it matter that the service had not actually begun when the procurement occurred?

Judgment for the plaintiff (Wightman, Erle and Crompton JJ; Coleridge J dissenting). All three counts were good.

As the reported headnote summarises the majority, "an action lies for maliciously procuring a breach of contract to give exclusive personal services for a time certain, equally whether the employment has commenced or is only in fieri, provided the procurement be during the subsistence of the contract, and produces damage". And, it adds, "it is not necessary that the employer and employed should stand in the strict relation of master and servant." The same Judges indicated (semble) that the action would lie for procuring the breach of any contract, not only one for personal services, where damage was intended and resulted.

Crompton J — the narrower ground

Crompton J started from the settled rule that a person who, with notice, procures a servant to leave his master's service commits a wrong. The relation of master and servant exists for this purpose "during the time for which there is in existence a binding contract of hiring and service". It would be "a fanciful and technical and unjust distinction" to say that it mattered whether the service had actually begun: "The wrong and injury are surely the same, whether the wrong doer entices away the gardener, who has hired himself for a year, the night before he is to go to his work, or after he has planted the first cabbage on the first morning of his service".

He saw no reason to confine the rule to menial servants: "where a party has contracted to give his personal services for a certain time to another, the parties are in the relation of employer and employed, or master and servant, within the meaning of this rule." He decided on that narrower ground, while expressly declining to rule out the wider proposition. His holding: "we are justified in applying the principle of the action for enticing away servants to a case where the defendant maliciously procures a party, who is under a valid contract to give her exclusive personal services to the plaintiff for a specified period, to refuse to give such services during the period for which she had so contracted, whereby the plaintiff was injured."

He also answered the argument that the plaintiff should simply sue on the contract: the contractor "may be utterly unable to pay anything like the amount of the damage sustained entirely from the wrongful act of the defendant", and it would be unjust if the wrongdoer were not responsible.

Erle J — the wider principle

Erle J put the case on a general principle: "the procurement of the violation of the right is a cause of action", and when applied to a contract of hiring "the nature of the service contracted for is immaterial." He reasoned: "He who maliciously procures a damage to another by violation of his right ought to be made to indemnify; and that, whether he procures an actionable wrong or a breach of contract." The contractual remedy may be inadequate, and in such cases "he who procures the damage maliciously might justly be made responsible beyond the liability of the contractor." On the service not having begun: "the relation of employer and employed is constituted by the contract alone, and no act of service is necessary thereto."

Wightman J — both grounds

Wightman J rejected the argument that Wagner's breach was her own "spontaneous act" so that the damage was not the legal consequence of the defendant's conduct. Relying on Winsmore v Greenbank and Green v Button, he said: "It was undoubtedly prima facie an unlawful act on the part of Miss Wagner to break her contract, and therefore a tortious act of the defendant maliciously to procure her to do so". On the third count he held that the right to sue for procuring a servant to leave "is by the common law, and not by the Statute of Labourers", and extended to all personal service for a time: comparing journeymen shoemakers with a singer, "it is the exclusive personal service that gives the right."

A person who, knowing of a contract and with intent to injure the plaintiff, procures a party to break a contract to render exclusive personal services to the plaintiff for a fixed period, and thereby causes the plaintiff damage, commits an actionable wrong. The action is not limited to master and servant in the strict sense, and it is immaterial whether the service had begun, so long as the contract was subsisting when the procurement occurred. (The majority's reasoning, especially Erle J's, points to a wider rule covering the procurement of the breach of any contract.)

• Direct question: Explain the tort of inducing breach of contract with reference to Lumley v Gye. Give the facts (Wagner, exclusive engagement, Gye's procurement), the majority holding, the three elements (knowledge of the contract, intentional/malicious procurement, resulting damage) and the dissent.
• Problem question: a rival company persuades a celebrity who is contractually bound to appear exclusively at the plaintiff's event to appear at theirs instead. Apply Lumley v Gye: the plaintiff may sue the rival in tort, as well as the celebrity in contract, and it does not matter that the event had not begun.
• Short note / comparison: contrast with Mayor of Bradford v Pickles, where malice did not make an otherwise lawful act actionable. In Lumley v Gye the defendant procured something unlawful — a breach of contract — which is why his intent mattered.
• Why sue the third party? Use Crompton J's and Erle J's point that the contract-breaker may be unable to pay, and the contractual measure of damages may be inadequate.