IN THE SUPREME COURT OF NEW ZEALAND, WESTLAND DISTRICT.

Kumara Times, Issue 2866, 9 December 1885, Page 2

IN THE SUPREME COURT OF NEW ZEALAND, WESTLAND DISTRICT.

APPEAL. ZIEGLER AND OTHERS, APPELLANTS ; MONCKTON, RESPONDENT. This was an appeal to the Supreme Court, Hokitika, on the 22ud October last, from a judgment of J. Giles, Esq., Resident Magistrate, delivered at Kumara on the 10th July previous. Mr Guinness appeared for the appellants, and Mr Purkiss for the respondent. His Honor Chief Justice Prendergast, after hearing counsel, intimated that he would reserve judgment, which would be forwarded to the Registrar, in writing, for inspection by both parties. Mr A. H. King, the Registrar, today forwarded to Mr M'Ennis, the Clerk of the Resident Magistrate's Court here, the following copy of the Chief Justice's written judgment in this matter : In this case the agreement for employment made 26th November, 1884, provided that the salary was to be £2OO per annum, and " three months' notice on either side to terminate the agreement." The plaintiff, a surgeou, was dismissed by a three months' notice <>iven 3rd June, 1885. It was contended in the Magistrate's Court that the employment could not be terminated according to the agreement by such a notice, but only by one expiring at the end of the year. The Magistrate, feeling himself bound by the decision in Forgan v. Burke, 12 Ir., C. L. 495, decided for the plaintiff. That case decided that by analogy the rule in tenancy applied, and that the notice must be one expiring at the end of the year. The reasoning was, that as the prior part of the contract created a yparly hiring and the provisions as to notice were ambiguous, it could not be

construed as cutting down what had been provided for in the previous part of the contract. This case is, I think, distinguishable from the case of Forgan v. Burke. There the provision as to notice was " three months' notice required on each side," and the Court to some extent relied upon this language and construed the provision as preventing the termination of the contract, unless the " required notice " had been given. In thiscase the provision is "three months' notice on either sido to terminate the agreement;" that is, if either side gives the notice, the agreement is to terminate. I think that in Beeston v. Collyer, 4 Bing, 309, and Ryan v. Jenkinson, 25 L.J.Q.B. 11, andKein v. Hart, 2 Ir. C.L., 138; 3 Tr. C.L., 388, and other cases, the Courts have indicated an opinion that the reason, for the rule on this matter of termination of notice, which exists as to tenancy from year to year, does not necessarily apply to other contracts. I think that this contract, without the provision as to notice, would have terminated at the end of the year, but not before; and that the provisions as to notice was introduced for the purpose of enabling either party to terminate it earlier. The appeal is therefore allowed, with £lO 10s costs.