LAW REPORTS

Dominion, Volume 2, Issue 322, 8 October 1908, Page 4

LAW REPORTS

COURT OF APPEAL. I THE KILBIRNIE TUNNEL. J. J. BOYD v. HATAITAI LAND COMPANY. LIABILITY FOR A CONTRIBUTION. At the sitting of the Court of Appoal yostorday, the Chief Justico (Sir Robert Stout) and Justices "Williams, Dennistou, and Edwards being present, the case of John James Boyd, builder, Kilbirnio (appellant), v. the Hatnitai Land Company, Limited (respondents), was taken. Mr. D. M. Findlay appeared on behalf of the appellant and Mr. Hadfiold for the respondents. FACTS OF THE CASE. The facts in this case wero briefly as follow:—The company paid the City Corporation £10,000 towards the cost of tlio Kilbirnio tunnel, other land-owners in Kilbirnio having previously agreed to contribute towards the sunt at the rate of Is. per foot of frontage. After the tunnel had been constructed, Boyd refused to pay on the ground that the tunnel was to bo a tunnel for the purposes of a tramway and a footway, and as no footway was made the tunnel constructed was not the projected tunnel referred to in the deed. The company in February last brought an action in the Supreme Court to recover from Boyd the sum of £27 9s. 7d. alleged to be due under the agreement. Jlr; Justice Chapman, in his judgment, said there was no doubt that all parties desired a footway, and that' the corporation intended to have one, but its inclusion in the project was forbidden by the Government. Tho contributors had, in his opinion, substantially acquired the consideration for whiih they contributed. It was true, lie continued, that they had not acquired exactly what they thought themselves entitled to, but'they had secured what they in terms had bargained for, viz., "a tunnel for tho purposes of a tramway." Tliero was, lie thought, not so much difference as to cause a failure of consideration. It was claimed by Boyd that he had made a • particular stipulation with reference to his own case. Giving the widest scope to the presumed authority of tho officer sent out by the company to collect signatures to the agreement, it was, his Honour held, inconceivable that the company could be bound by something said to him to which ho was not even asked verbally to assent as a formal stipulation, and which ho could not be expected to report to his superiors. Judgment was therefore given > for tho company, with costs. ARGUMENT FOR THE APPELLANT. Mr. Findlay, on behalf of tho appellant, submitted that tho contributors were induced to enter into the agreement with the company owing to the fnct that a footway as well as a tramway was projected. The question as to what was contracted about must be answered by the reply to the question, Was there a definite project ? If there was no definite project, then the parties might have been contracting about something indefinite and uncertain, but if there was something which fitted the expression used, then it was contended the language of tho deed must bo applied to it. Mr. Justico Williams: I gather that you contend, oven although a footway had been made in the tunnel, the fact that an alteration had taken place in the route would render the contributors non-liable? Mr. Justico Edwards: What was tho effect of'the alteration in the route? Mr. Findlay: About 700 yards; seven minutes in point of time. Mr. Justice Edwards: Seven minutes? TJiat must be in the timo taken to walk tho distance. I feel' sure that oven tlio Wellington trams do not tako seven minutes to travel 700 yards! Mr. Findlay," resuming, suggested that the tunnel had at the timo tlio contract was mado reached definite shape; the scheme was not "in the air," but was based on tho report of Mr. Wright, the engineer, a resolution of the council adopting it and the formal steps to obtain loans necessary for carrying out tho work. The company was, he submitted, under no obligation to accept tho altored scheme. It was urged that the; agreement itself was looked upon by both the company and his client as an agreement about Mr. Wright's scheme, and that both parties wero really contracting in regard to Mr. Wright's scheme. If that wero not- so, the contract was ambiguous, and being ambiguous his client was entitled to show by evidence that it was not with regard to any subsequent scheme that he was contracting about. The Chief Justice: Your case appears to bo this: The agreement speaks of a tunnel being projected. That tunnel'is a special tunnel which has not been made. Mr. Findlay said that that was tho beginning and the end of it. The doctrino of failure of consideration by which his client had got to show substantial or total failure, did not apply in tho case. If the company failed to carry out its part of tho contract his client had no rights against it, because it undertook nothing more than to make a contribution to tho corporation towards tho cost of the work. Mr. Justico Chapnjan had held that, although his clicnt had not got what ho ho had acquired substantially what ho had contracted for. The answer to that was: Where was tho line to bo drawn? REPLY FOR THE RESPONDENTS. Mr. Hadfiold, for tho respondents, said the whole matter began as n result of correspondence between the corporation and a committee of the landowners in tlio Kilbirnio Ward. No mention of a footway appeared in tho correspondence. The Chief Justice: Does that help you, Mr. Hadfiold? That was after Mr. Wright's scheme was published, and they would not require to mention tho footway. Mr. Hadfiold admitted that that was so. Continuing, he said it showed that tho parties had never stipulated in writing for a footway. The agreement provided for a tramway connecting Wellington and Kilbirnio, and that had been accomplished. Mr. Justico Edwards: If tlio tunnel had been carried through a mile distant from the proposed site under tho agreement, that would havo been a compliance. That surely was not what was intended? Mr. Hadfiold said that tho agreement was certainly open to that construction. Mr. justico Edwards: The alteration in the route was a very trifling matter, but if a footway was contracted for it should have been provided. The Chief Justice: A footway would have boon a great advantago, for then people could have had a short route at times when no cars wero running. Mr. Iladfiekl proceeded to urgo that tlio performance of the contract had been so substantial ns to render it impossible for any excuse for non-payment to bo raised. All the. dealings with regard to the proposed footway were collateral to tlio main contract, and appellant would have to rely upon his collateral agreement with regard to the footway if ho could establish it. The Court reserved its judgment. A WAIROA CASE. TITLE TO A ROAD. Argument was then heard relative to the caso of Jessie Aitkenhead Stewart, tf Nuliaka (appellant), v. the County of Wairoa (respondents). ]\lr. Bell, K.C. '(with him Mr. Crisp), appeared on behalf of appellants, and Mr. Stock (with him Mr. Sproule) for respondents. STATEMENT OF THE CASE The facts in this cuse were that appellant was tlio owner of a block of land in the Wairoa district, bounded on one side by a county road, oil the other side of which rail the Nuliaka liiver. In 1805 tho river washed away portion of the road. With a view to securing permission to make a deviation tho respondents sent their engineer to interview appellant's husband, who was her agent. The evidcuco ns to what took place at the interview was conflicting. Appellant's husband naid that it was agreed that the county should be allowed to make the deviation, and that tho county should pay for the land at a price to bo afterwards fixed. The county engineer deposed that the price "was fixed.

Whatever was agreed on, a wheel track was formed over appellant's land, and the track was used by the public without objection by appellant or her husband for many years. In 1903 the county caused the deviation to be properly formed and metalled, and since that time it had been used :is a public thoroughfare. In February last, however, the appellant claimed that the road had not been taken by the county, and that "it was still private property. She placed across the road a fence, which the county caused to be removed. Appellant then brought an action for trespass, claiming £100 damages, tho real question being the title to the road. It was hold by Sir. Justice Chapman that-tho use of tho road by the public and the expenditure of public money upon it without objection by appellant or her husband was evidence from which the Court ought to infer that appellant had dedicated the road to the public. Judgment was therefore given for tho county, and the appeal was from that decision. SETTLEMENT REJECTED. Mr. Bell, in opening the case for the appellants, intimated that all tho appellant wanted was payment for the road at tho value of tho land in 1895, and to liavo the road declared a public road. Tho Chief Justice (to counsel for tho respondents) : Aro you willing to settlo on these terms The. county to get a conveyance of the road; that the road be defined; that it do not take, in a house in the vicinity; that the county pay to appellants the valui; of the land as in 1895; and that the question of costs be left to the Court? > Mr. Stock (for the respondents): Yes; provided we get a road in width one chain, and we are not required to pay the costs of tbo Supreme Court action. Owing to a deadlock occurring with reference to the question of costs, it was decided that tho hearing should continue. At tho conclusion of argument forthe appellant tho Court adjourned until this morning.