IMPORTANT CASE RELATING TO BOARDING SCHOOLS.

Te Aroha News, Volume VI, Issue 364, 1 May 1889, Page 4

IMPORTANT CASE RELATING TO BOARDING SCHOOLS.

Auckland, April 27. Tins was an action hoard at the Rosidenl Magistrate's Court yesterday, before Dr. Giles, R.M., in which' Captain Thomas Dawson, of Parnell. sued Mr Donald MeGiegor, of Victoria-street, Auckland, on the ground that ho hart lomovod his son from tho plaintiffs boarding-house without giving a term's notice. Mr Hugh Campbell appeared for tho plaintiff, nnd Dr. Laishley for the defendant. The only witnefes called on behalf of the plaintifi" was his wife, Mrs Dawscn ; and tho facts, as disclosed in the course of her examination and cross - examination, , were as follows : — On Tuesday, March 5Lh, 1885, Captain and Mrs Dawson advertised that they were open to receive into their family, on certain terms, boys attending the Parnell Giammar School, or intending to do so. The defendant then called about the 7th March on Mrs Dawson, and it was arranged between them that Mr McGiegor'a son should boaid at plaintiffs' house tor £16 13s 4d per term, and on other terms then agreed on, but what passed on the occasion except in respect to the £16 130 4d Mrs Dawson didnotcleailyiemember. Howe\cr, a day or two after, the boy came. In the advertisoment, as an inducement held out by Captain and Mrs Dawson" was a sentence notifying that a resident master in the houso would be provided to supervise tho boys' home lessons. A fow months after the boy came, Mrs Dawson sent defendant a prospectus containing tho terms on which boys were received, and in this prospectus was a term that one term's notico would bo lequired befoie a boy was removed. Subsequently, troin time to timo. Mis Dawson sent other copies of the prospectus, notably one on September 18th, 1888, with that part of it scoied out relating to tho lesident master. At the end of that term, the defendant removed his son, after giving only a week or ten days' notice. The plaintiff now sued toiecover the teim'.s fees, which he assessed at £12. In the course of the case the plaintiffs solicitor tendered a prospectus, which he had given the defendant notice to produce ; but the defendant's solicitor obiected to it being recehed as evidence of tho contract, on two ground?, first, because it had not been proved that it was the identical pro&pectus Avhich formed a base of tho con ti act, and second, because it was not stamped, and in addition to the 3rd schedule of an 18S2 Stamp Act, he produced an English case (Williams v. Stoughton) in point. The prospectus was. therefore, only admitted ab a notice sent by the plaintiff to the defendant, but not as e\idence of any contiact. At the conclusion of the plaintili's case Dr. Laishley moved that the plaintiff should be non-suited on four grounds. (1) That Mrs Dawson has not been proved as a coplaintifl" with her husband Capt. Dawson. He quoted the Married Women's Property Act, 1884, 2—5, to show that she was as a feme, sole for the purposes of siung ; and especially Section 26, which contemplates a business partnership between husband and wife, and also quoted fiom the latest woiks on Husband and Wife by Ticknesse, pp. 205 and 206, and Griffiths on the Married Women's Property Act, p. 23, and pointed out that by the advertisement (produced), the prospectus and the letters and receipts signed by Mrs Dawson, it was conclusively shown that there was a business partnership existing between them, and that therefore all the partners in that business partnership must necessarily be joined as co-plaintiffs. (2) That no evidence had been given whatever of any agreement containing any stipulation respecting the term's notice, either by advertisement, or verbal, or written agreement, or by prospectus delivered at the time when the interview between Mrs Dawson and Mr McGiegor took place, on or about 7th March, 1885; indeed, that the only tittle of evidence of the term's notice that has been bi ought to the notice of the defendant at all was the fact of prospectuses having t een &entbimmonths after the contract had been entered into, which he contended could not affectthc ca?*e. (3) That no such agreement as set forth in the particulars of demand had been proved, in other words that the particulars of demand did not correctly set forth the agreement between the parties, inasmuch as the defendant never agreed to pay only Cl 2 per term, and never agreed to the corm'u notice, and that the resident matter's stipulation was not mentioned in the agieement set forth in the particulars of demand at all ; so that the evidence did not in any way support the cause of acknowledgment set forth. (4) That even if the agieoment had been proved the plain till had since released tho defendant from it by altering the condition without the consent of the defendant, that is by dispensing with the resident master and «tiiking that condition out ot the prospectus; and he quoted authorities in support of the contention, that if the party to a contract materially alters the contract, without the consent of the other party, the latter party is at liberty to consider the conti'act rescinded. To Dr. Laishley's arguments, Mr Campbell replied at length, quoting numerous authorities, urging in respect of the iiist point, that the Married Women's Property Act, 1884, had no application except whero a wcnaii had separate property, and that it was incumbent on defendant therefoic to show that she had separate property before he could urge that she ought to be joined in. In respect of the second point, chat whilst admitting there was no evidence oi the term's notice being part of the oviginal contract, yet that when Mr Dawson sent the defendant a prospectus, it meant a new proposal, which the defendant must be taken to have accepted when he continued to send his son. In respect of the third point, Mr Campbell argued that the terms of the fresh agreement, which followed the doli\ery of the prospectuses from time to time, were sufficiently correctly set forth ; and, in respect of the 4th point, he contended that rescission could only take place by consent of both parties, and that the defendant, was never discharged from the contract because ho must be taken to have entered into a new contract, inasmuch as he did not withdiaw his son as he might have done, having continued to send him. Dr, Giles gave judgment on the non-suit points against the plaintiff, and with costs against him. He held that it was nob necessary for him to enter into tho first point, as ho held the other points urged by Dr. Laishley fatal to the plaintiff's case. He decided that the mere tact of sending prospectuses could not be consideied in tho light of fresh proposals, inasmuch as he agreed with Dr. Laishley's contentions, that evidently they were not sent even as notices, but were used mainly a& the media for letters, receipts, etc., and were evidently not intended as ppecial notices to the dofendant, and that it was not reasonable to expect him to treat them as such, and that there was no evidence that he had ever agreed to enter into such a contract as the plaintiff contended for, and that on receiving the prospectus on 18th September, 1888, with the alteration relating to the resident master, defendant had a right to remove his son at j the end of that term without giving notice, I which he did,