THE KUMARA HOSPITAL CASE

Grey River Argus, Volume XXXII, Issue 5366, 10 December 1885, Page 2

THE KUMARA HOSPITAL CASE

IN THE SUPREME COURT, WESTLAND DISTRICT.

Zeigler and Others, Appellants V. Monckton, Respondent. judgment of chief justice prendergast. Mr Guinness for appellant, Mr Purkiss for respondent. In this case the agreement for employment made 26th November, 1884, provided that the salary was to be £200 per annum, and "three months' notice on either side to terminate the agreement." The plaintiff, a surgeon, was dismissed by a three months' notice, given 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 j expiring at the end of the year. The Magistrate, feeling himself bound by the decision in Forgan v. Burke, 12 Ir., C.S., 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 yearly hiring, and the provision as to notice was 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 at the end of the year, unless the " required " notice had been given. In this case the provision is "three months' notice on either side 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. Jenkhi3on, 25 L.J.Q.B, 11; Keen v. Hart, 2 Ir.C.L, 138 ; 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 provision as to notice was introduced for the purpose of enabling either party to terminate it earlier. The appeal is therefore allowed with £10 10s costs.

[It will be remembered that £100 was claimed for wrongful dismissaland the Magistrate awardecNJ7s antt : c6stsT} " '•"