AN INTERESTING CLAIM.

Evening Post, Volume LXXIV, Issue 136, 5 December 1907, Page 8

AN INTERESTING CLAIM.

ALLEGED OVERCHARGES. A claim of £2075 12s for alleged overcharges in the matter of the carriage' of material was again before Mr. Justice Button to-day. Tho parties were J. J. K. Powell v. the WelKngton-Manawalu Railway Company. The proceedings reverted chiefly to an argument on certain non-suit points. Mr. Treadwcll appeared for tho plaintiff, and Mr. C. P. Skerrett, K.C., with him Mr. J. P. Campbell, appeared for the company. Plaintiff, in his statement of claim yosterday, alleged that the regulations with regard to-the carnage of goods on the Wellington-Masterton railway included a, provision that Toad metal, tar, and other articles for local bodies — scoria, boulders, shingle, gravel, and other materials, for road-making consigned to public bodies in loads of not less than ten tons — carried at the convenience of the Railway Department, would bo charged at half the classified rates, and Ihci minimum charges should be Is 9cl per ton. The plaintiff stated that under the terms of the contract entered into by him for the supply of metal to tho Wellington City Coilncil, tho Wellington Harbour Board, and the Hutt County Council ho was obliged to supply to these bodies road metal,, boulders, and other material, and that the depal tment was perfectly aware that theso materials wero being civrried over tho railway lino for the purpose of tho supplies required by these local bodies. Plaintiff said that since November, 1897, the defendant company had overcharged him the amount of his claim lor the conveyanco of such material from Paekakariki and Plimmc-rton. Mr. Skerrett moved for a non-suit on the grounds (1) That the benefit of the exemption under regulation 12 could only be claimed by a local body, and no local body was party to the action. (2) As to all the causes of action, except the cause of action relating to tho material delivered to th& Hutt County Council, there was no evidence of a. consignment to a local body, which was in any viow of the regulations an essential condition to the obtaining of the benefit of the exemption. (3) As to all the causes of action, that the contract between the plaintiff and the defendant company was a special contract, the consideration for which was tan undivided one for both tho right to work *«»■- defendants' quarry and remove the material and for the carriage of the material. It was therefore not within the scope of the agreement between the Governor and the company, which only related to tho ordinary relationship of consignor and carrier, pi) Tho evidence was that the payments were voluntary payments, made with a full knowledge of the facts, and therefore not recoverable. His Honour •. I am with you on all but the fourth point. His Honour had previously given an opinion on tho position. Mr. Tiroadwoll contended" that regulation 12 was one as to the construction of which there was gravo doubt, and' that following on that, it being established that there was a question of doubt as to tho construction of the regulation, the rule was that the construction in favour of the public was to be preferred. There was nothing in the regulation to say that a contractor who had made a contract with a local body for tho supply of stuff was not entitled to the benefit of the regulation, which should bo construed as if the words "consigned to local bodies" were "coneig'ned for the benefit of local bodies." Powell was the public, and was entitled to liberal consideration in the way counsel suggested. He then went on to^argue that the construction of the term "consigned to public bodies" was a, question for tho jury, and not for the court. After the luncheon adjournment, his Honour addressed the jury and said the question was. ."What is tlio meaning of the regulation?" -My. Treadwell, ho said, i/iviled him to give the regulation a liberal interpretation, and to hold that ll was a regulation for the benefit of the genera) public, and that wh-rever any contractor wus employed for the piu-poso of roadmaking, the material that ho might require came under the clause in question. 1J is Honour said ho could not put that construction on tho regulation. It appeared to the court that this was a concesssion to local bodies for roadmaking ; not to the contractors, but tho local bodies themselves. His Honour then went on to deal with several minor questions involved in the case. Finally he overruled the fourth nonsuit point raised by Mr. .Skerrett, and allowed the other three preceding nonsuit points, with the qualification that in the third point it only referred to material taken from the Paekakariki quarry. Plaintiff was thereupon nonsuited, as stated, and the jury discharged. The question of costs was reserved.

At 2 o'clock to-morrow Messrs. W. If. Morrah and Co. will sell by public auction in their rooms, Willis-street, houjohold furniture, groceries, crackery, out.lerjcand "' '" n -,