RESIDENT MAGISTRATE'S COURT.

Kumara Times, Issue 2746, 10 July 1885, Page 2

RESIDENT MAGISTRATE'S COURT.

Friday, July 10. [Before J. Giles, Esq., R.M.] DR. MONCKTOK V. HOSPITAL COMMITTEE This was an action to recover tho sura of £IOO (six months' salary) as Surgeon-Superintendent of the Kuraara Hospital. Francis Alexander Moncktou, plaintiff; Louis Ziegler, Henry Burger, John Hannah, George Rudkin, defendants. The plaint, agreement, and general facts of the case were heard on Friday, June 26, and published in the Kumara Times on the following day. No evidence for the defence was put forward, and the whole case, therefore, rested on the words of the agreement. His Worship stated that as counsel did not appear, the attendance of plaintiff and defendants was not necessary, lie then gave judgment as follows : I have found great difficulty in arriving at an opinion upon this case, partly because no case has been adduced in which the wording of the agreement is precisely the same, and partly from the difficulty of harmonising all the remarks of writers and judges which I have met with in the books and cases cited.

The case turns entirely on the construction of a written agreement, no evidence having been given of any custom or outside circumstances by which the intention of the parties might be interpreted, unless the monthly payment of salary is to be regarded as such. But I think this circumstance will not show that the hiring was not a yearly one. I gather from the authorities that the law on that point is this : that a hiring will of itself, where nothing else is shown, impost a yearly hiring, but where, in addition to the mere hiring there is a weekly or monthly payment of wages, and nothing else, that raises the presumption that the hiring is weekly or monthly. But where there is any special reason for interpreting the contract in the sense of a yearly hiring, the payment monthly will not of itself qualify that interpretation. We are therefore thrown back on the words of the agreement, which are as follow :■. — The Hospital Committee " agree to pay the said F. A. Monckton, Esq., the sum of £2OO per annum for his services as surgeon, &c, to the Kumara Hospital, in consideration that the said F. A. Monckton, Esq., surgeon, &c., shall perform the duties as required by the said Kumara Hospital Committee's Bye-laws here annexed." And then, after reciting the byelaws, the agreement continues : '' Three months' notice on either side to terminate this agreement." Upon these words the question arises whether the committee could dismiss the plaintiff at any time during the currency of a year by giving him three months' notice, or whether such must be given so as to take effect at the end of the first or of any other year of the hiring.

In dealing with this question I shall confine myself to two reported cases which seem to be most in point, and which arc most valuable for our purpose, because in one of the cases the hiring was inter-, pretecl as a yearly one, and in the othejeA not, and we can therefore appreciate effect of a difference in the wording of the* 1 agreements

In "Ryan v. Jenkinson," (1855) 25 L. J., Q. B. 11, a schoolmaster was appointed at the rate of £55 per annum, so long as by mutual consent he should retain the office of master ; the appointment to be subject to termination by three months' notice from either party. It was held that he might be dismissed at any time upon three months' notice. On the other side we have the Irish case of "Forgan v. Burke," 12 Ir. 0. L. 495, decided in the year 1861. This case was mentioned by counsel, and was in fact claimed by both, for there was no access to the case, and the reference to it in the text-book that was quoted (Macdonnell's Master and Servant) was somewhat ambiguous. But since the hearing I have obtained by the kindness of a professional friend in Dunedin a copy of the material part of the judgment in this case, and a very important case I find it to be. In fact I may say plainly that it has altered my opinion on the question before me. In this case the agreement was "to serve Major Burke as steward from May 31st, 1858, for £BO per annum; three months' notice required on each side." It was held that the hiring was a yearly one, and that the three months' notice could only take effect at the end of one of the years of hiring. In giving judgment in this case the Court said that an agreement to serve from such a day for £BO a year "would, no doubt, have been an agreement to serve for one whole year, and that contract could have been terminable only at the end of the year, and in case the plaintiff continued to serve for more than one year, then it would be terminable at the end of the second or other year in the same way." The Court then proceeds to consider the effect of the words " three months' notice required on each side," and decides that these words do not in any way make the hiring other than yearly, but only indicate what notice is to be given in order that the service may terminate at the end of any year. An important feature in this case is that the Court reviewed the case of "Ryan v. Jenkinson," and expressly distinguished it as not a yearly hiring, because the agreement was "at the rate" of £55 per annum, and so long as by mutual consent he should retain the office.

i I must confess that on reading the case of " Ryan v. Jenkinson," it does not appear quite so clear that the grounds of the decision were precisely as stated by the Irish Court, for Mr Justice Coleridge gives other and general reasons. He questions the applicability to the case of a i schoolmaster of the rule which obtains in the case of tenants of land-holding from year to year, and says that "it might be of great importance that a master who had done some act not sufficient to justify immediate expulsion should not be allowed to continue in his office until the expiration of the current year." I am unable to give any good reason why these remarks should not apply to a hospital surgeon as well as to a schoolmaster, and I should probably have been governed by them if it had not been for the deliberate decision of the Court in a later case. It must be observed also that Mr Justice Wightman, in assenting to the judgment, does take the ground assigned by the Irish Court. He expressly says that the contract is not at so much per annum, so long as by mutual consent he shall continue to hold the office, and that it is not for a year certain. Taking it therefore to be establised law that a contract to serve at so much per annum is a yearly hiring, it remains to inquire what is the effect of the words " three months' notice on either side to terminate this agreement." These words differ from those in "Forgan v. Burke," which are " three months notice required on each side," and perhaps there may be more room for plausibility contending that they mean notice at any time. But if the principles laid down in " Forgan v. Burke " are sound, we must not give the words relating to notice a construction which contradicts or restricts the contract for a yearly hiring shown by the former part of the agreement, if we can give them a construction which harmonizes with it. The latter construction may be given them by interpreting them to mean that three months' notice must be given so as to take effect at the end of any given year.

That is the construction which upon the whole I feel bound to put upon the words, and that means that my judgment is for the plaintiff; but Ido not pretend to be free from doubt on the question, and I only follow what appears to me the greater weight of authority and precedent. Upon the question of damages I have not much to guide me beyond the general nature of the case. The balance of salary to the end of the first year would be the maximum, but some deduction may reasonably be made from this on account of the plaintiff being set free to seek for other employment. I award him the sum of £75 and costs. The costs were—Court, £3 13s; one witness (subpoenaed), 10s ; and counsel £3 3s ; making a total of £B2. Mr Rudkin, on behalf of defendants, gave notice of appeal.