Lyon v. Pollard

ERROR to the Supreme Court of the District of Columbia.

Mrs. E. A. Pollard sued J. E. Lyon in the court below, and declared on a written contract, by which Lyon agreed to furnish the means of carrying on the St. Cloud Hotel, a hotel of considerable size in the city of Washington, and Mrs. Pollard agreed to superintend and conduct it. For this service she was to receive one-fifth of the net profits, in ascertaining which the rent paid by Lyon for the house was to be excluded. Either party was at liberty to terminate the contract by giving thirty days' notice in writing. The breach alleged was that the defendant ejected the plaintiff from the premises without having given the stipulated notice. Under pleas which amounted to the general issue, the defendant undertook to show that he had given the notice required, and under a special notice of what he would offer in evidence, offered to prove that the plaintiff was unfit to perform her part of the contract by reason of the use of opiates, and by reason of her unsound mental condition. The court refused to receive the evidence; and the defendant excepted.

The defendant then offered evidence of a service of notice on the 11th July on the plaintiff, under the contract to terminate it. Also evidence of service of a notice on the 19th September, in this form:

'September 19th, 1870.

'MRS. E. A. POLLARD.

'MADAM: On the 11th of July last I caused notice in writing to be served upon you, which notice terminated the agreement between us. I now notify you that the time specified in that notice has fully expired, and that you are no longer superintendent of this hotel, and no longer entitled to the appellation of proprietress.

'Respectfully,

'J. E. LYON.'Testimony was also given tending to show that the first notice had been waived or withdrawn.

The plaintiff was dismissed on the 4th of October.

On this testimony the defendant asked the court to charge that, even if the notice of July 11th had been wholly withdrawn, the subsequent notice of September 19th was in legal effect a renewal of it, and of itself operated to terminate the contract at the expiration of thirty days from its date.

This prayer the court refused to grant; and verdict and judgment having been given for the plaintiff, the defendant brought the case here on exceptions to the evidence, and to the refusal to charge as requested.

Mr. J. H. Bradley, in support of the rulings and charge:

The court rightly refused the offers as to the use of opiates, and as to the plaintiff's unsound mental condition. The suit was for damages on a contract which if the plaintiff failed to perform it, it was in the power of the defendant to rescind on thirty days' notice. If a contract provides a special mode of putting an end to it, that mode must be followed. However imperfectly the plaintiff may have performed her duties, so long as the defendant chose to accept her performance, he was bound to pay her in the manner stipulated between them.

The next exception is directed to the charge of the court on the subject of the notices. The charge was right. Whether there was a waiver by the defendant of the notice of July 11th, 1870, was purely a question of fact for the jurors to determine, and was properly left to them. If they found that it was waived by the defendant, it became extinct; and could not be revived by the defendant.

The notice of the 19th September, 1870, could not then have been made a renewal of its predecessor.

Nor is it a good notice operating of itself to terminate the contract at the expiration of thirty days from its date. It does not propose or pretend to be a notice to take effect at a future day, but sets up a former notice that the plaintiff was holding over against that notice after the term expired, and is, if anything, a demand of immediate possession.

Messrs. Davidge and Cox, contra.

Mr. Justice MILLER delivered the opinion of the court.