Wilkins v M'Ginity

• Jurisdiction: Ireland
• Judge: K. B. Div.
• Judgment Date: 04 November 1907
• Court: Court of Appeal (Ireland)
• Date: 04 November 1907

Wilkins

and

M'Ginity (1).

K. B. Div.

Appeal.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1907.

Landlord and tenant — Lease — Term from 1st November — Power to surrender at end of year on giving three months' notice beforehand — Notice served on 1st August of intention to surrender on 1st November following — Time — Months, whether lunar or calendar.

Held, by the King's Bench Division (Lord O'Brien, L.C.J., and Johnson, J.; diss. Wright, J.) and by the Court of Appeal, that, whether the word “months” was to be read as calendar or as lunar months, a notice served on the 1st August, 1904, of intention to surrender on the 1st November following was good.

Case Stated by the Lord Chief Baron on hearing of a civil-bill appeal for the opinion of the King's Bench Division.

The appeal was from a dismiss by the County Court Judge of a civil-bill brought by the plaintiff to recover the sum of £30 money due by the defendant to the plaintiff under an agreement in writing dated the 2nd October, 1902, which the defendant agreed and undertook under said agreement to pay, and for money paid by the plaintiff for the use of the defendant at his request, and for money found to be due from the defendant to the plaintiff on an account stated between them, all within the past six years.

By an agreement in writing dated the 2nd October, 1902, and made between Joseph P. M'Ginity, the defendant, of the one part, and Robert Wilkins, the plaintiff, of the other part, it was

agreed that the defendant should let and the plaintiff should take certain premises known as the Victoria Mills, in the town of Dundalk, “for the term of 500 years, from the 1st day of November, 1902, at the yearly rent of £100, payable half-yearly in advance, … the first payment in advance to be made on the execution of these presents, and the payment of the remainder of the said half-yearly rent shall be payable on the 1st May and 1st November in each year.” The said agreement provided that the defendant would, on the request of the plaintiff, execute a proper lease of the premises, and that the said lease should contain amongst other covenants a covenant “that the lessee shall within a reasonable time erect a hay-shed and office in addition to the said premises, to be demised at a sum not exceeding £30, and shall also contain a clause to surrender the premises at the end of the first two years on giving three months' notice beforehand of such intention; or, in case of the death of the lessee, his executors, administrators and assigns shall be at liberty to surrender the said premises within three months after the death of the said lessee; and in the event of surrender by the lessee in his lifetime within the time mentioned, that the said lessee, his executors, administrators, and assigns, shall be entitled to be recouped in the actual sum expended by him in the erection of the said shed and office, and no more, and in no case shall the amount of such expenditure exceed the sum of £30.” The plaintiff entered into possession of the premises under the agreement, and erected the hay-shed and office at an expense exceeding the sum of £30. On the 30th July, 1904, the plaintiff sent to the defendant, by registered post, a letter intimating his intention to surrender the said premises on the 1st November, 1904. The letter was addressed to Joseph P. M'Ginity, merchant, Dundalk, and should in ordinary course have been delivered to the defendant on Sunday, the 31st July. It was proved, however, that the letter was not, in fact, delivered at the defendant's premises, or otherwise delivered to the defendant, or brought to his knowledge, until the morning of Monday, the 1st August.

The Chief Baron held as a fact that notice was not given to the defendant until the 1st of August, and was of opinion that such notice was not sufficient notice under the agreement, but, at the request of the plaintiff's counsel, consented to state a ease on this latter point.

His Lordship added— “If my ruling on this point is wrong in law, then the plaintiff is entitled to a decree for the sum of £30 and costs; otherwise the dismiss should be affirmed.

“The question for the opinion of the Court is whether my decision of the foregoing question of law was correct.”

By agreement in writing, dated the 2nd October, 1902, the defendant agreed to let to the plaintiff certain premises in the town of Dundalk for 500 years from the 1st November, 1902, at the yearly rent of £100, payable half-yearly in advance on the 1st May and 1st November in each year, with a proviso that the plaintiff should be at liberty to surrender the premises at the end of the first two years on giving three months' notice beforehand of his intention to do so. On the 30th July the plaintiff sent to the defendant by registered post a notice of his intention to surrender on the 1st November, 1904. The letter was not delivered to the defendant until the 1st August:—

Chaytor, K.C., and Hanna, for the plaintiff.

Healy, K.C., and Donaldson, for the defendant.

Wright, J.:—

The case of Rogers v. Kingston-upon-Hull Dock Company (1) is decision of Vice-Chancellor Wood, that where a tenancy from year to year is determinable upon six months' notice to quit, a notice given six lunar months prior to the expiration of the year is sufficient to determine the tenancy. But this decision does not stand alone. By other decisions, and by statute, a different meaning has been given to the word “month,” where it occurs alone.

Prior to 1850, the word “month,” when used in a statute without the addition of “calendar,” or any other words to show that the Legislature intended calendar, was understood to mean a lunar month; but this has long been changed, and for upwards of fifty years past “month,” when used in act Act of Parliament, has meant calendar month (12 & 13 Vict. c. 21, 52 & 53 Vict. c. 63). It follows that, all through the Landlord and Tenant (Ireland) Act of 1860 (23 & 24 Vict. c. 154), a consolidating and amending Act still regulating the law of landlord and tenant in Ireland outside agricultural and pastoral holdings, it has this meaning. Similarly, in the Rules of Court, not merely the present Rules under the Judicature Act, but the Rules made in 1854, under the Common Law Procedure Act of 1853, the word “month” is declared to mean calendar month. It has been held that in commercial contracts a month means a calendar month: Hart v. Middleton (2). The general rule is stated to be, that where in

any written instrument the word “month” alone is used, the context may be looked to, to see in what sense the parties used it, whether lunar or calendar month; in fact, that the question whether it means lunar or calendar month depends upon the intention of the contracting parties, to be gathered from the language of the contract: Lang v. Gale (1).

By the contract in the present case, the premises are let for the very long term of 500 years, commencing from the 1st November, 1902; the rent is to be payable in advance, and half-yearly, on the 1st of May, and 1st November. There is a power of surrender at the expiration of the first two years of the term, on giving three months' notice beforehand of such intention. Having regard to the frame of the lease or agreement for a lease, that it is for a long term of years, and that the rent is payable half-yearly, I am of opinion that this power of surrender early in the term, at the end of the first two years, by giving three months' notice, means a quarter's notice; in other words, that the months are calendar and not lunar months. It may be immaterial, and probably is, but it is obvious that the plaintiff himself so understood it; and in truth it appears to me that at the present day parties when making a contract, whether parol or written, think of a month as meaning a calendar month, the twelfth part of a year, and nothing is further from their minds than the idea that they are stipulating for lunar months, or a lunar month, and to import such a qualification into the contract in the present case would in my opinion defeat the intention of the parties.

The notice of surrender was in fact not given until the 1st of August, 1904. This has been found as a fact by the Lord Chief Baron. Is this sufficient?

The first of November, 1902, is made the terminus a quo of the term of 500 years, and in my opinion, following the decision of the English Court of Appeal in Sidebotham v. Holland (2) and the several cases there cited, that day, November 1st, 1902, is the first day of the term, so that the first and each succeeding year of the term would be completed on the 31st October, which day would be included in the year. The general rule is that the day

of service, i.e., here August 1st, is excluded in computing the period of time, and while the tenant, if a sufficient notice were given would be entitled to hold on until the last minute of the day, i.e. October 31st, and could not be compelled to leave, and possession could not be legally demanded, until the next day, November 1st, began, yet in my opinion three months' notice of surrender at the expiration of the first two years of the term, which means, as I have already stated, three calendar months, could, on the authority of Sidebotham v. Holland (1), Right v. Darby (2), and other cases, have been given for the 31st October, 1904, and whether given for that day or for the 1st November, should have been given on the 31st July, 1904, at the latest.

I therefore think the notice in the present case was bad, and the dismiss ought to be affirmed.

Johnson, J.:—

When the agreement of October, 1902, was entered into, the plaintiff lived in Belfast, and the defendant in Dundalk. Therefore, as the agreement did not require personal service of the notice to surrender, the parties contemplated notice...