WARRE v. CALVERT. [157] would be the use of the bond, if the Company were bound to retain in hand one fourth of the cost of the work performed. The object was, that the Company might have some one to whom they might resort in the event of Streather failing to perform the contract, and of the works being completed by others at a cost exceeding the contract price. That shows why the penalty of the bond is not larger; it was merely to cover such excess, which was not likely to amount to more than 5,0001. The argument, therefore, as to the inconsistency of the security with the alleged restriction on the Company fails. Then let us look at the contract. Streather could call for no money till he had performed one eighth of the work; and, after that, as the work went on, he could call for three fourths only of the cost of the work performed. Any further advances were, no doubt, as Sir Frederick Pollock urges, made on the contract; but they were not made under the contract. Even, therefore, if there were no specific agreement, the surety would not be answerable. His liability is for damages accruing from the breach of contract, not from advances by the Company. Still less could he be liable, if the advances were made upon a subsequent negotiation between the Company and Streather, and a fresh security given by the latter. No damage, therefore, has been sustained. WILLIAMS, J.: The liability which it was intended to impose upon the surety was for the nonperformance of the contract; but the Company are not aggrieved by the nonperformance of the contract, since the works have been completed at an expense less than the sum which they would have had to pay to Streather. The loss arises from the contract in no sense except that, if there had been no contract at all, there would have been no advance. But the dvance is made, not under the contract, but upon the security of Streather. Verdict to stand for nominal damages. WILLIAMS v. BYRNE. (7 Adol. & Ellis, 177-184; S. C. 2 N. & P. 139; W. W. & D. 535; 6 L. J. (N. S.) K. B. 239; 1 Jur. 578.) Declaration stated that defendant promised plaintiff to employ him, as reporter to a newspaper, for a given salary, for one whole year, from 20th May, and so from year to year, to the end of each year commenced while the plaintiff should be so employed, reckoning each year to commence from 20th May, for so long as plaintiff and defendant should respectively please: breach, that, after plaintiff had continued in the employment two years and part of a third, defendant would not continue plaintiff in the employment to the end of the third year, but discharged him. Plea, that defendant offered to pay plaintiff a sum of money larger than plaintiff would have been entitled to if a reasonable notice of determining the agreement had been given, and required plaintiff to quit immediately, and at the same time gave him a reasonable notice of defendant's intention, in case the tender was refused, to put an end to the agreement, to wit at the end of three weeks from 3rd October instant; that plaintiff refused to accept and quit, whereupon defendant discharged him at the expiration of the notice, and that defendant was still ready to pay the sum tendered. On demurrer, Held, that the contract alleged in the declaration and confessed in the plea, was determinable only by notice ending with a current year; and, therefore, that the plea was no answer. ASSUMPSIT. The first count of the declaration stated that, whereas heretofore, to wit 20th May, 1833, in consideration that plaintiff, at defendant's request, *would enter into his employ in the capacity of a reporter of the proceedings in the House of Commons and House of Lords, and would furnish reports of such proceedings, and other articles, to defendant, for publication in a newspaper of the defendant, called the Morning Post, for one whole year from a certain day, to wit from the day and year aforesaid, and so from year to year to the end of each year commenced whilst the plaintiff should be so employed by the defendant, and reckoning each year to commence from a certain day, to wit the 20th of May therein, for so long as the plaintiff and defendant should respectively please, at and for a certain salary or wages, to wit at the rate of 51. 5s. per week for and during each session of Parliament, and at the rate, to wit, of 21. 12s. 6d. per week for and during the remainder of the year, defendant undertook &c. to employ plaintiff in the capacity aforesaid, at and for the salary or wages aforesaid, and to continue him in such employ for one whole year from a certain. 1837. June 6. [177] [ *178 ] WILLIAMS บ. BYRNE. [ *179 ] day, to wit &c., and so from year to year, &c. (following the consideration to the words "should respectively please"); and, although plaintiff, confiding &c., did afterwards, to wit on the day and year first aforesaid, enter into the employ of defendant in the capacity aforesaid, and on the terms aforesaid, and continued in the employ of defendant in the capacity &c., and did furnish reports &c. to defendant for the purpose &c., for a long space of time, to wit two years then next following and also for part of another year after that time, to wit until 24th October, 1835; and although plaintiff was, on the day and year last aforesaid, and hath always been, ready and willing, and then offered, to continue in the defendant's employ, in the capacity *&c., and on the terms &c., and to furnish &c. for the remainder of the last-mentioned year so commenced as aforesaid, yet defendant did not nor would continue plaintiff in defendant's said employ till the expiration of the last-mentioned year; but, on the contrary, during the said last-mentioned year, and before the expiration thereof, to wit on &c., refused to suffer plaintiff to continue in defendant's said employ, and wrongfully discharged him therefrom, without any reasonable or probable cause whatsoever, and hath thence hitherto wholly neglected and refused to retain or continue plaintiff in his employ for the remainder of the last-mentioned year so commenced as aforesaid. Fourth plea to the first count. That, after the making of the said promise, and before the said discharge of plaintiff, to wit 5th October, 1835, defendant, being desirous to determine and put an end to the said agreement and defendant's said employ of plaintiff in the said capacity, tendered and offered to pay plaintiff a large sum of money, to wit 18l. 10s., as and for and in the name of salary and wages, the same being more than the amount of salary or wages which the plaintiff would be and have been entitled to if a reasonable and usual notice of determining the said agreement and employ of plaintiff had been given to him by defendant, and required plaintiff immediately to quit his, defendant's, said employ. Averment, that defendant did, at the same time, give plaintiff a reasonable and usual notice of his, defendant's, intention, in case of the said tender and requisition so made by defendant being refused by plaintiff, to determine ། BYRNE. [ *180 ] and put an end to the said agreement and the said employ WILLIAMS of plaintiff, to wit at the end of three weeks from 3rd October then instant; *that plaintiff refused to accept the said 18l. 10s., or any part thereof, or to quit the said employ; wherefore, at the expiration of the said notice, being the said time when &c., defendant discharged plaintiff, &c., and hath from thence hitherto refused, and still doth refuse, to employ plaintiff &c., as he lawfully &c. Averment, that defendant hath always, from the time of his tendering the 187. 10s., hitherto been, and still is, ready and willing to pay plaintiff the said 187. 10s. if he will accept the same for the cause aforesaid; whereof the plaintiff hath always hitherto had notice. Verification. Demurrer, assigning for causes that the plea neither traverses, nor confesses and avoids, the cause of action in the first count; for that, by the agreement as therein stated, defendant had no power to put an end to the agreement before the end of the year commenced, nor to discharge the defendant for the causes alleged in the plea. Joinder. W. H. Watson, for the plaintiff : The declaration shows an express contract for a year, and so on from year to year, without any stipulation as to the method of determining it. In Beeston v. Collyer (1), where a yearly hiring of a clerk was implied, it was held that the employer could not turn off the clerk in the middle of a year, and that there must be reasonable notice; and the case was distinguished from that of a menial servant. The notice to determine a contract from year to year must fix the determination at the end of a current year. In all cases except that of a menial servant, the primâ facie presumption is that the hiring is for a year: *Fawcett v. Cash (2). Upon any construction of this contract, as stated on the record, there is no power to determine it by such a notice as that pleaded. The plea, as now framed, does not confess the contract in the declaration, but relies upon a supposed qualification of it, which is not on the record. (He was then stopped by the COURT.) (1) 29 R. R. 576 (4 Bing. 309). R.R.-VOL. XLV. And see Turner v. Robinson, 39 R. R. 45 [ *181 ] WILLIAMS v. BYRNE. [ *182 ] Mansel, contrà: Every contract of hiring must be understood to be determinable upon reasonable notice. The contract in the declaration is not traversed; and, therefore, according to the present rules of pleading, it is confessed. In Beeston v. Collyer (1) the question of notice was not raised: but BURROUGH, J. said, "Unless reasonable notice be given, or ground for dismissal assigned, the defendant was bound to go on to the end of the year." It would be hard on both parties to interpret the contract without this qualification. In Fawcett v. Cash (2) Taunton, J. expressly confined his judgment to the case of a dismissal during the first year. (LITTLEDALE, J.: You are setting up a contract different from that in the declaration.) The contract in the declaration implies a power to determine on reasonable notice. It is only from year to year to the end of each year commenced "while the plaintiff should be so employed." In the case of a tenancy from year to year the contract specifies no notice, nor is it pleaded as a contract subjected to determination by notice; yet the law imports the power so to determine. The notice in the case of a menial servant takes effect upon *the same principle. What is a reasonable notice, is, in each case, a question for the jury. LORD DENMAN, Ch. J.: I have no doubt upon the case. The plaintiff states the contract to be for one year from May 20th, and so on from year to year, to the end of each year commenced while the plaintiff should be so employed, reckoning each year to commence at the day named. This contract the defendant does not deny; but he answers that, in the third year of the employment, he tendered a sum amounting to what would have been payable if a reasonable notice had been given, and gave a reasonable and usual notice that, if the tender was not accepted, he should discharge the plaintiff. What is there to show that any part of (1) 29 R. R. 576 (4 Bing. 309). And see Turner v. Robinson, 39 R. R. 650 (5 B. & Ad. 789). |