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Decisions of the Superior Courts of New South Wales, 1788-1899

Kirby v. Hughes [1842] NSWSupC 21

school fees, recovery of - work and labour - entire contracts rule - indebitatus count

Supreme Court of New South Wales

Stephen J., 2 February 1842

Source: Sydney Herald, 3 February 1842

In this case Mrs. Sarah Kirby, of O'Connell street, was the plaintiff, and Mr. J. T. Hughes the defendant. The action was brought to recover the sum of £70, being one quarter's school fees for teaching the Misses Hughes, also for extras and sundries furnished to them during the time they attended the plaintiff's school in Pitt- street.

Mr. WINDEYER opened the case for the plaintiff, by remarking that he could not conceive what defence the defendant could make to the present action; he saw by the record that he had failed his usual pleas, but he was so accustomed to him, that he was inclined to pay very little attention to them, and called Miss Elizabeth Kirby, step daughter to the plaintiff, who proved that the plaintiff's four daughters attended Mrs. Kirby's school as day boarders, from January till about the 22nd of July last, that the two quarters terminating about the 21st June, 1841, had been paid for at the same rate as that charged for the quarter ending with September 1841, viz: £50 per quarter school charges; £3 3s. extra per quarter for each of them learning music, and £3 3s. per quarter for each of those who received instructions in drawing; she also proved that materials to the value of 7 s. 6d. had been furnished to make a bag; that new music to the value of 7s. 6d., with a frame and school value 16s., had been purchased for them,. According to the testimony of this witness, all the charges were reasonable, being those usually exacted at Mrs. Kirby's school, that the ages of Misses Hughes were about 15, 11, 9 and 7 years respectively, and that it had been stipulated by Mr. and Mrs. Hughes, that they were to be taught music and drawing by Mr. and Mrs. Prout, at Mr. Kirby's.

Mrs. Prout proved that the two eldest Miss Hughes had been attended by her at the plaintiff's school from January till near the end of July, when they were removed, that she had been settled with by the plaintiff for teaching two of them music for three entire quarters, at the rate of £3 3s. each, per quarter, which were her usual terms; also that it was customary, when pupils entered on a quarter at any school, to charge for the whole period, whether they continued till the end of it or not.

Mr. Prout ... having taught the three eldest Misses Hughes drawing, from January till near the end of July, for which he had been settled with by Mrs. Kirby, for three full quarters, at the rate of £3 3s. for each pupil, this being the usual charge. He never computed for part of a quarter; nor was any such custom practiced either here or in London. When his own family's instruction was paid for, although they left before the close of the quarter, he paid the full fee.

Mr. Trood proved that it was the usual practice to exact the entry quarter, and that he had recovered for a whole quarter, although the pupils had only attended for a part. In cross-examination, he stated that it was in the Court of Requests he recovered from the landlord of the Blue Posts for his family.

Mr. FOSTER, who appeared for the defence, contended that, as the declaration was for work and labour, that the plaintiff could only recover for the work and labour actually performed. Had there been any breach of a special contract set forth in the declaration, it might have enabled his client to have justified the breaking of that contract. He admitted that there was an old case in the 1st, and another in the 5th vol. of Bingham's Reports, which might appear to support the plaintiff's case; but the accuracy of these decisions were, at best, doubtful. He placed much more reliance on the case of Archer v Horner, in the 3rd of Carrington and Payne's Reports, page 319, where Lord Tenderden gave it as his opinion, that in actions for work and labour, where no special contract was pleaded, that the plaintiff could only recover for what was actually performed. He also quoted a case for wages from the 7th of Adolphus and Ellis, page 544. He submitted that the Court could not entertain the evidence which had been tendered as to the custom, and denied that the plaintiff had made out the case.

Mr. WINDEYER contended that in all the cases cited (except that of the sick pupil which had been sent from the school) the defendants had put an end to the contract, and therefore they did not apply; at all events his client was entitled to recover ratably.

His HONOR in putting the case to the assessors, directed them to find first, what amount the plaintiff was entitled to, for the time that had elapsed from the commencement of the quarter till they were removed, and secondly, the total amount to which she would be entitled should the full court be of the opinion that she ought to recover for the whole quarter. The assessors found that the plaintiff was entitled to £23 9s. for the time that the pupils had actually attended. But if the Court considered that she was entitled to recover for the full quarter their verdict would have to be increased to £67 6s.            


Dowling C.J., Burton and Stephen JJ, 11 February 1842

Source: Sydney Herald, 12 February 1842 [1]

This was a motion to the Court to increase the damages given by the assessors in the above action, which had been tried this term, and had been brought to recover the amount of a quarter's schooling, supplied to children of the defendant, who had been taken away from the school before the expiration of the quarter.

            Mr. WINDEYER shewed cause, and contended, on the authority of Gandell v. Pontiquy, 4 camp., 375, recognised and confirmed by Collins v. Price, 2 M. &   P., p. 233, that as the schoolmistress had been willing to continue the children of the defendant at her school, and as the custom of schools warranted and uniformly enforced quarterly payments, the defendant must be considered liable to pay for the whole quarter, if his children had attended the school for any part of it.

            Mr. FORSTER contended that, although the defendant under a special declaration, might have been compelled to pay for the whole quarter, he could not be made liable to this extent, under the common indebitatus count. The case of Collins v. Price, 2 M. & P. 233., founded on that of Gandell v. Pontiguy, made for him, the learned counsel. The present action was brought for work and labour: there was no statement of a contract by the defendant to send his children to the school for the whole quarter, and therefore the defendant had had no opportunity of putting such pleas on the record, as might shew that he never had entered into any such contract as he was attempted to be charged with. In the common count, for work and labour, on general principles, the plaintiff could only recover for the work and labour actually done.

            Although the case of Gandell v. Pontiguy, made for the plaintiff as showing that if the quarter had been begun, the parent was liable to pay for the whole; the case of Archer and Homer in the 3rd volume of C. and O. went exactly the other way. In Smith v. Hayward, in the 7th of Adolphus and Ellis, p. 544, Lord Deman said that the two conflicting cases above referred to, differed from each other, and if the Court of Queen's Bench were called upon to decide in favour of one of the two decisions they would feel little hesitation in saying that Lord Tenterden's judgment in Archer v. Homer, was founded on better reasoning than any to be discovered in the case of Gandell v. Pontiguy. Mr. Forster In the same case (Smith v. Hayward ) J. William had asked "how could it be said that an action of indebitatus assumpsit could be maintained for services which might never have been performed ? Another consideration which he Mr. Foster submitted, was a strong one against allowing the school-keeper to recover for the whole quarter under the common count, was, that if the parent had had any good and sufficient cause for withdrawing a child from a school before the end of the quarter, he would be precluded from availing himself of this as a defence, if the common count were permitted. Upon the above authorities therefore, as well as on the reason of the case, the learned gentleman submitted, that the present application for increasing the damages to the price of the full quarter must be discharged.

                 Mr. WINDEYER in reply said, that the answer to Mr. Foster's last point was, that if any circumstance had been in the case, shewing that the school was a bad or immoral one, or there were in any way a failure in the performance of that which it would be always implied a schoolmistress should perform; that circumstance might have been given in evidence under the general issue. The dicta which has been read by Mr. Forster as having been uttered by the Judges in Smith r. Hayward, were merely extra-judicial; the point not having been there expressly in question; and as the case of Collins v Rice had never been overruled by any subsequent decision, he (Mr. Windeyer) considered he was entitled to have the damages increased to the full amount of the quarter.

              The CHIEF JUSTICE said that on the authority of Collins v. Price, they thought they were bound to decide that, under the indebitatus count, the mistress might recover for the full quarter, although the children had not been sent to the school for the whole of that period.

            Mr. JUSTICE BURTON said that he thought the case bore a strong analogy to the common count for the use and occupation, under which, at the end of a quarter, although the defendant might only have actually occupied a month, the landlord might recover for the whole period. He was therefore of opinion that payment for the full quarter might be recovered under the common indebitatus count.

            Mr. Justice STEPHEN   concurred, saying that he thought the principle, that under the common count only, the work actually done could be recovered, might be satisfied in the present case, by considering that the plaintiff was not in reality paid for a longer period than the children had actually attended the school: but that, duly weighing the circumstances of this and similar cases, viz. : that establishments for educational purposes being almost uniformily [sic] kept up by quarterly payments and disbursements - the law has annexed a rule for useful purposes, that if a parent improperly and without any justifying cause, withdrew a child in the middle of a quarter, the school-keeper should be paid as much for the part of the quarter as she could have claimed for the whole if the child had continued at the school. Thus it might be considered that the work had been actually performed, and no invasion of the principle, as laid down by J. Williams resulted. Rule absolute for increasing the damages.                

[1] See also Australian, 12 February 1842.

Published by the Division of Law, Macquarie University