SUPREME COURT—IN BANCO.

New Zealand Times, Volume XXXIII, Issue 5426, 17 August 1878, Page 2

SUPREME COURT—IN BANCO.

TIIUKSDAY, AUGUST 15. (Before Ills Honor Mr. Justice Richmond.) DOUGHTY V, WELLINGTON' JUARD OF EDUCATION 1 . Mr. Gordon Allan, who a peared for the Board, moved for a rule to be made absolute to set aside the verdict in this case, and enter it for the defendant, on the grounds—(l) That the learned Judge should have directed the jury that the facts proved or admitted amounted to gross misbehavior” within the Educatlon Act, 1877; and (2) that the Board were the sole judges of what was sutllcicnt "gross misbehavior" to war ant peremptory dismissal. A cross-rule had also been obtained by Mr. Barton on behalf of Mr. Doherty for a new trial on the first count of the declaration, claiming house allowance. It was agreed that the two rales should be argued together ; Mr. Gordon Allan appearing for the Board, and Mv. Barton (with him Mr. Fitzherbert) for the plaintiff. Mr. Barton said: First, as to the cross-rule outlie question of house allowance, the case stands thus: In the minute-book there is a marginal n to opposite each minute, and under date 33th Jmuary, 1878, we find this note : —“lncrease of stipend to heads of department.’* The minute states that the Board resolved to increase the house allowance of the following assistant teachers over and above the original allowance. namely, Messrs. Gordon, Lewis, and Doherty each £2O. At the trial the rules and regulations, dated 15th May. 1875, were put in, showing in the appendix that there is a provision for £2O extra allowance for rent to all except head teachers, who get £lO. The Board having passed this resolution, the evidence was that Gordon was paid it, that Lewis was paid it, and the question was whether Doherty ought to be paid it, unless some written notice wis sent him by the Board. The ordinary course of practice was not to make any direct communication to the teachers of an increase. It is said the minute is an unaccepted offer, and that the non-communication of the offer amounts to proof that it was not accepted. The case relied on by the opposition will be Bussell v. Thornton, 31 L.J., Ex. GO. But the whole question in Russell v. Thornton was this—what was good evidence of the acceptance of an offer. There may be various ways of assent to an offer arising out of certain facts : for instance, in cases of railway timetables, it has been held that they form a perfectly valid contract binding the company. (See Denton v. Great Northern Railway Company.) Mr. Barton cited Duncan v. Topham, 8 C. 8., 225, and Adams v. Lindsel 1 , 18. and Aid., GBI. and proceeded to say that this is a stronger case of communication of the offer than the railway case. Doherty secs the regulations laying down that certain allowances arc recognised, and he sees the resolution of the Board. But even suppose the Board never communicated to anyone—it is like a power of appointment. Could it be said that the power was not exercised until communicated? Tills is analagous. Even if Doherty’s assent were necessary, ho did consent; he told Mr. Lee that he claimed the house allowance. Ho (Mr. Barton) did not rely on publication by newspaper reporters. Ho relied upon another class of oases, in which it has been held that an offer was accepted although not communicated In the channel intended. It is not necessary that Doherty should have received the offer in the channel intended, and when he had notified his acceptance (as he did), thereupon the contract became binding. The offer was subsisting until revoked. It might be said that the Board communicated through Mr. Lee their revocation, but he submitted that Mr. Lee was not authorised or la any way entitled to revoke on their behalf.

Judge Richni'-nd : Mr. Lee intended not to revoke, but to explain, fits explanation was that Doherty was entitled to £1(50 a-yearas a fust-class teacher, third division. The ordinary house allowance would bring this up to £ISO only ; therefore the Board added £2O, so as to bring it within the regulations without reducing the £2OO a-year. Mr. Barton proceeded to say that the written contract with Doherty could not be varied verbally, and that l.ee’s explanation should apply equally to Gordon and Lewis. Mr. Barton then proceeded to show cause avainat the rule obtained by the opposite side. The other question was that there ought to be a verdict for defendant, because the words “gross misbehavior" were for the Court to construe ; and, secondly, that the Court ought to construe the letters as amounting to gross misconduct, fie submitted that this was a question fir the jury, la Bnlmer v. Gilman. -4M. and G., 10S, it seems to have been treated as beyond dispute that it was quite proper to leave to the jury what did or did not amount to gross negligence. As to the actual meaning of the words, that may be for the Court; Cor instance, if there were conflicting meanings in a dictionary to say which was the right one—that is different from deciding whether certain conduct amounts to gross misbehavior. It must be assumed that the words mean not acts only but acts coupled with a particular intention. Doherty's intention must be considered. Doherty had a riglr. to compl -in and to assail Mr. Lee’s character and conduct before the Board. The only question was, had ho a right to attack Mr. Lee in the language he did? DidheintendtogrosslymUbehave, that would be clearly for the jury, It was not the mere construction of a contract. It is as much a question for the jury as a question whether or not words were usad in an ironical sense. As to the fact whether or not the jury were right in their conclusion, and whether the Court ought to come to the same, that wag a question on which counsel could not give much assistance to the Court. As to the letter complained—first of all, that was a Idler to Mr. Lee himself; there is no request t y lay it before the Board. It cannot be treated as if it had been written to the Board, it must be considered as a private letter written to Mr. Lee. Again, Doherty had a high idea of the position due to him. aud of course that weighed with him in his feelings when Lee treated him without proper respect. Doherty was not to be treated as an ordinary schoolmaster. He was a man of superior ability, aud Mr. Lee knew that perfectly well. That ought to be taken into consideration as an element of the question of what amounted to “gross misconduct," which must be taken to have meant something more approaching immoral conduct. Then it is clear the Board were not the sole judges of the question. Judge llichmond; The rule was not grmted on that ground. It is perfectly clear ; I don’t ask for argument on that point. Mr. Gordon Allan said: Upon the cross-rule obtained by the opposite side he was stopped by the Court intimating it was satisfied on that point, and would not call for argument. As to the point of the functions of Judge and jury, the true principle is that the facts are to bo found by the jury, but written contracts must always be construed by the Judge. The rule is laid down in Nellson v. Harford, S M. and W. When the circmustan es of the dismissal are found by the jury, the question of whether it was justifiable b comes one for the Court. Morgan v. Savin, Hi L. T. (X.rt.). p. 333 and 450. Judge llichmond: In thatoaseit was not a question of degree, as it is here. I told the jury that there was evidence of misconduct, but whether there was evidence of gross misbehavior I left to them. How is the question what is gross to be decided by the application of ahy legal principle? Mr. Allan proceeded to argue tint if this was simply a duty under parol contract, no doubt the question would bo one for the jury. But when the terms wore in writing, it was for the Judge. It was for uim to say whether the fads came within the terms of the written document. In the case of the Metropolitan Bailway Company v. Jackson, it was laid down that if there is any evidence of negligence the Judge must send it to the jury ; but if there is none in his opinion then lie must withdraw it. Judge llichmond: You don’t say I ought to have stopped the case because there was no evidence, but that I ought to hare decided the question myself. Mr. Allan: That is so. The near distinction between this and the case last cited is that there was no written document to construe, ami that it was merely a question whether a common law duty had been performed. TheCpurtniustconstruethelctter. The Board have a right to dismiss for “gross misbehavior;" and the Court must first interpret it and say whether or not there is any gross misbehavior. But if degree is left to them, then the whole is left. They were loft to say what they thought it meant, without any definition from the Court. Ho (Mr. Allan) submitted that all the facts were admitted, and it was for the Judge to -ay what was the effect of die written document. The ordinary rules as to the right to dismiss could not. apply in this case. There were special powers given by Act of Parliament; and supposing that, in the opinion of the Court, certain nets amounted to gross misbehavior, but were left to the jury and the jury took another view, the jury would be interpreting the Act. Judge llichmond : The question was not merely as to what would justify dismissal, but what would justify peremptory f,ismis al. i.c., was the conduct so bad as to come within the Act.

Mr. Allan went on to argue that the mere refusal to act might not have been sufficient, but the subsequent insubordinate conduct dearly brought it within the Act, As to the letter being private, it was so in no sense : it was written and addressed to the Secretary of the Education Board. The letter was not compatible with the relation of employer and employed. It showed not only the refractory nature of the man, but also the course of rebellious conduct he intended to pursue. Ho was taking upon himself the functions of the Board. As to what conduct would justify dismissal at common law. he cited the cases of Kuli'w«yv. Hungerford Market Company. 3 Ad. and E 171, Armor v. Fearon, 1) Ad. and E. 545, Smith v. Allen, 3F. and F, 157. See also the case of Edwards v. Levy, 2F. and F. 04. There was also, ho observed, a case in point, hi rc the Fremington School, 11 Jurist •421, where it wvs held that there was a power of dismissal for neglect, misbehavior, or any other just cause. The case was referred to by Malins, V.C., in llayman v. the Governors of Rugby School, L.R, IS Eq., p. 70. The Court reserved judgment.