1890. JOYCE v. ELLIS. I am unable to see any ambiguity, as the terms of the clause appear to me to be quite clear. The words in question stand in a clause by themselves, and must be read by themselves. The words "to be carried on deck or below" standing between Windeyer J. commas must be taken as if they were enclosed in brackets, and give the defendant the right to carry the goods on deck or below, but still at the owner's risk. If the appellant's contention be the correct one, the words used are not the apt ones to convey that idea to an intending shipper. It is simply a question of construction, and I am of opinion that the learned District Court Judge's finding was entirely correct. FOSTER, J., concurred. Appeal dismissed. Attorney for the appellant: Mahoney. Attorneys for the respondent: Sly & Hamilton. 1890. May 12. CREW v. THE MUNICIPALITY OF PROSPECT. Master and servant-Indefinite hiring-Reasonable notice. In cases of hiring for an indefinite period, the servant is entitled to reasonable Windeyer J. notice, and the question of what is reasonable notice should be left to the jury. and Foster J. DISTRICT COURT APPEAL. Action for 2001. for wrongful dismissal. In February, 1886, the municipality of Prospect and Sherwood called for applications for the position of overseer of works. The plaintiff applied, and was appointed by resolution of the council on the 6th of March, 1886. He commenced his work on the 8th. The salary was 1307. per annum, and the plaintiff was paid 51. fortnightly. He occupied his situation for nearly three years, till on the 23rd February, 1889, the council being in very low funds, he received notice that his services would no longer be required. His year of service expired on the 8th of March, but the council paid him 77. 10s. in lieu of three weeks' notice. The plaintiff considered this insufficient notice, and brought the action, which was heard before Wilkinson, D.C.J. No evidence was called for the defence. His Honour directed the jury as a matter of law that as the plaintiff was paid every fortnight, and as the year of his service terminated on the 8th of March the defendants were entitled to dismiss him as they had done, but to save the necessity for a new trial he asked the jury to find as a matter of fact whether the 13 days' notice was sufficient, and if not, to assess the damages. The jury found that the notice was insufficient; that the plaintiff should have received three months' notice, and they assessed the damages at 271. 10s., i.e., eleven weeks' wages, in addition to the amount he had already received. The jury wished to return a verdict for the plaintiff for this amount, but by direction of his Honour they found for the defendants. The plaintiff now moved to set the verdict aside on the grounds that his Honour was wrong in refusing to direct the jury that the plaintiff was entitled to reasonable notice, and in refusing to accept their verdict upon the question of reasonable notice. Edmunds, for the appellant. The plaintiff was entitled under the circumstances to a quarter's notice. It was properly for the jury to say what notice the plaintiff should have had. They assessed the damages on the basis of three months' notice, and the verdict should be entered for the plaintiff for the amount : Creen v. Wright (1), Smith v. Hayward (2), Hiscox v. Batchelor (3). Sly, for the respondents. His Honour was right in holding that the council could terminate the service at the end of the year. The hiring at 1301. per annum was a yearly hiring, and there is no authority to shew that where the service ends at the end of the year any notice is required. Either party was at liberty to put an end to the service at the end of the year. There was no hardship on the plaintiff. He knew he was only hired for a year, and he could at any time have asked the council if it was intended to discontinue the service when the year was out: Beeston v. Collyer (4), Ryan v. Jenkinson (5), Fairman v. Oakford (6), Down v. Pinto (7), Manby on Master and Servant, 172. WINDEYER, J. The question for us to decide is whether the learned Judge was right in directing the jury to find a verdict for the defendants, and if not, whether the verdict should not now be entered for the plaintiff. There seems to be no case precisely in point, but it is said in Fairman v. Oakford that "there is no inflexible rule that an indefinite hiring is a hiring for a year. Each particular case must depend on its own circumstances," and in that case it was held the question of notice was properly left to the jury. In the case of Creen v. Wright, the plaintiff accepted command of the defendant's ship under a written agreement as follows:-"I hereby accept the command of the ship City Camp on the following terms: salary to be at and after the rate of 180l. sterling per annum; should owners require captain to leave the ship abroad, his wages to cease on the day he is required to give up the command, and the owners have the option of paying or 1890. CREW v. MUNICIP. OF not his expenses travelling home," and it was held that the plaintiff could not be dismissed without reasonable notice. Lord Coleridge, C.J., says, "There is some authority for saying that PROSPECT. as a proposition of general law reasonable notice is to be implied Windeyer J. as a term of such a contract of hiring as this. Sir John Byles so laid down the law in Hiscox v. Batchelor, and the case of Fairman v. Oakford seems, if the facts of it be carefully considered, to be an authority to the same effect." It was argued by Mr. Sly that this was a case of a definite hiring for one year, and for every year that followed. It does not appear so to us. The The hiring seems to have been a general or indefinite one. FOSTER, J., concurred. Attorneys for the plaintiff: Slattery & Heydon. Attorney for the defendants: Roberts. BURKE AND OTHERS v. PROUDFOOT. Accord and satisfaction—Partnership—Payment of private debt with partnership property. N., one of the members of the plaintiff firm, was privately indebted to the defendant, and settled the account by giving him a piano, the property of the firm. The firm afterwards sued for the price of the piano, and the defendant pleaded accord and satisfaction. Held, that in the absence of any fraud or collusion between N. and the defendant, the plaintiffs could not recover, for since N. could not himself rescind the contract he could not do so by joining his partners as plaintiffs. DISTRICT COurt appeal. The facts are stated in the judgment. Moriarty, for the appellant (defendant), cited Henderson v. Wild (1), Wallace v. Kelsall (2), Gordon v. Ellis (3), Brownrigg v. Rae (4). Stephen, for the respondents. The defendant knew he was taking partnership property for a private debt. He was served with a bill immediately after he got the piano. He must take the risk of Naylor making it right with the other members of the firm. There are circumstances in the case which indicate fraud. WINDEYER, J. In this case the plaintiffs Burke, Coulson and Naylor were a firm of storekeepers, auctioneers and general merchants at Orange, and the defendant was a medical man. The defendant rendered professional services to the plaintiff Naylor, and instead of taking payment in cash for his fees, which amounted to 431., he arranged with Naylor that he should let him have a piano. This was done, and the defendant received the piano in payment of his account. of the plaintiff firm, of the value of years after the above transaction defendant for the price of the piano. brought, the defendant saw Coulson, one of the firm, who said (1) 2 Camp. 561. (2) 7 M. & W. 264. The piano was the property forty guineas, and some two took place the firm sued the Shortly before the action was (3) 7 M. & Gr. 607. (4) 5 Ex. at 497. 1890 May 13. Windeyer J. and Foster J. |