LYON V. POLLARD, 87 U. S. 403 (1874)

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U.S. Supreme Court

Lyon v. Pollard, 87 U.S. 20 Wall. 403 403 (1874)

Lyon v. Pollard

87 U.S. (20 Wall.) 403


1. Where a person agreed to serve in superintending a large hotel for another at a compensation specified, either party being at liberty to terminate the contract on thirty days' notice to the other, and the person agreeing to superintend was ejected by the other on less than thirty days' notice, held, in a suit for damages by the party thus ejected -- the general issue being pleaded and notice of special matter given -- that the defendant might prove that the party ejected was unfit to perform his duty by reason of the use of opiates and by reason of unsound mental condition.

2. Where by the terms of a contract a party is bound to give thirty days' notice of an intention to terminate it, and having given the notice afterwards waives it, he may in fact renew the notice, though the form of his communication purport to insist on the notice which he has waived, and at the expiration of the required time, the second document will operate as a notice.

Page 87 U. S. 404

3. Though where, under a contract of hiring services, a party is bound to give a certain number of days' notice to terminate it, it is not terminated until the full term of days has elapsed, yet where an action has been brought for damages for a dismissal without the proper notice, a notice of termination may be given though the full number of days has not expired when an actual dismissal took place, this to show that the plaintiff had a right now to serve but a portion of the thirty days.

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"


"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."


"J. E. LYON"

Page 87 U. S. 405

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 11 had been wholly withdrawn, the subsequent notice of September 19 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.

Page 87 U. S. 406

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