The Waipapa Dredge.

Mataura Ensign, Volume 15, Issue 1344, 1 December 1893, Page 6

The Waipapa Dredge.

A SUIT IN THE SUPREME COURT. At the civil sittings at Duuedin on Monday, a case of district interest came on for hearing, viz., Waipapa Dcedging Company (Limited) v. Burns. Mr Holmes for plaintiff, Mr Sim for defendant. In this case the Waipapa Dredging Company is plaintiff,and Robeit Burns, of Dunedin, surgeon, defendant. The statement of claim set forth that the defendant, entered into an arrangement with the company on the 18th of April 1893, to work the company's claim, the defendant getting the use cf the company's machinery and ; plant and paying a rental of LlO per calendar month and three-fourths of the net profits derived from such claim after deducting rent, fuel, wages, and other working charges. The dredge waa delivered to the defendant on the 6th of May and the contract terminated on the 30th of August, since which the dredge had been detained by the defendant. The dredge was not as a matter of fact upon tbe company's claim, although it was near to it, at the time delivery was made to the defendant. The directors were not aware that the dredge was off the claim at that time. On the 27th July defendant lodged an application for a special claim in his own name adjoining the plaintiff's claim. The company were surprised at the application, and considering it a departure from the ar. rangement with the company that ho was to apply for the claim in the company's name, the company took steps to object to the granting of the claim to the defendant. They lodged an objection with the wardtn, bnt after hearing the parties tbe warden granted the claim to Dr Burns, sut j j et to' the company's waty-r righte. The defendant had therefore got tbe claim in hia own name with the company's dredge upon it. The plaintiff claims a return of the dredge or payment of its value, and L2OO for ita detention, ', and that the defendant may be declared a trustee for the plaintiff of the special claim mentioned in the third ' count, or such otber relief as to the ■ court may seem meet. The defence set up is that the dredge was not on the claim at tbe time of deUvery to the defendant, and that he is not bound by the agreement to return it on the claim ; that the acquisition of tbe adjoining ground did not terminate the agreement i ntered ' into, and tbat he obtained a grant for ', the adjoining claim on his own behalf and not as trustee for the company. The dredge was now in the possession of Peter Barr, the holder of a mortgage deben'uro, by order of the court, restraining the sale of the said dredge, , and the plaintiff was not entitled to the , possession thereof. Mr Holmep, in opening the plead. i ing!>, said that, assuming the dredge , was not on the claim at the time of delivery to Dr Burns, the question to be determined was: what legal effect [ had tbat upon the contract ? If it in. \ validated the contract, the defendant , had no right to go on working the , dredge and to practically pjit it on ! other land. If it did not invalidate the contract, the defendant was by the , contract bound to woik the idredgo bn ,' tbej company's claim, or, ii; there was ( a breach of contract, then the de- , fendant could claijp io the nature of a warranty againns the "company, but , under no circumstances was he entitled to put the dredge upon iand belonging to himself. . , John Frederick Brunton, mechanical engineer, who had previously worked ' the dredge in question for the company, gave evidence with regard to a eketch , plan of the company's claim, and , stated that when he gave over delivery , of ibe dredge {$ the defendant it was r witbiu 3£ chains of tlie company -S

,c,iaun, and could tt^aye .been , put on to the claim in four tours*." 3 J " Gross-examined by Mr Sim : Witness . said the claim had been worked by two companies. He had been manager for both. No dividend had ever been paid. He was a shareholder himself. The claim had been worked at a loss. > R. H. Leary, secretary of the plain- ! tiff company, deposed that Dr Burns was a director of the compauy up to I the uate of the arrangement being entered into by him to work the claim. He had expressed dissatisfaction with Mr B tun ton's working of the claim. He said he could get someone. tp work the claim on more advantageous terms. I Dr Burns suggested that, the adjoining ground should be taken up. %He reminded Dr Burns that the company had no money^ and he suggested that Dr Burns should take up the claim in the name of the company, and charge them with Ibe expense. Dr Burns agreed to do so. Cross-examined by Mr Sim : I am quite positive in my own mind as to the import of the conversation between Dr Burns and myself when he undertook to apply for the claim in the name of the company. The present company spent all its capital and paid no dividend. Mr Peter Barr holds a mortgage debenture over the company's property' for LIBO. He holds tbat on behalf of Mr Allen, Rose, and myself. The wages men threatened to wind up the company, and Messrs Allen, Rose, and myself were the only directors who would advance the money to pay them off. Mr Barr holds the mortgage debenture on our behalf. The company owes about LSOO besides. . . James AlleD, M.H.R., - 'a' director of ,: the Waipapa Dredging Company, and Henry Rose, another director of the company, gave evidence as to entering into the agreement between the board ard the defendant for working the company. Dr Burns, the defendant, deposed that he was a shareholder in tbe oviginal Waipapa Company in 18S8, and afterwards of the present company. In 1891 he became a director of the present company. He was dissatisfied with the management of tbe company befote he became a director. Things went on better after he became a director. He was dis.atiefied with the condust of his co-directors. He sent Mr Tilburn down to take possession of f he dredge, etc., on tbe. 6th of May. When i.c received a letter from Mr Tilburn he knew for the first time that he dredge was not on the claim. He nad no doubt hiai immediately informed' Mr Leary. Mr Tilburn reported that it would take three months' dead work to get the dredge afloat and at work on the !gold. It actually took three months all but one -week. Remembered the interview with Mr Leary about taking up the oth?r ground. He gayeyMr Leary's, statement of that interview absolute contradiction. They . had > no conversation about the matter in the oflice. Mr Leary and himself walked up the street, one taking ;one way and the otber another way. At the corner Mr Leary said, '/•.Doctor, you know the company has no money, and you bad belter take up the i adjoining ground yourself." To tharj witness shrugged his shoulders andisaid, "We will see about that," and' walked away. He afterwards applied' for the adjoining ground in his own name. The company . objected, bub the warded granted his application j and gave costs against the com T . pany. ! Christopher Tilburn, consulting engineeer, deposed that he went down to take possession of the dredge on behalf of J)r Burns, on the 6th of May last. Assuming the dredge could bave been turned in the position in which he found her,! it could not have been done in lees than two days. " ,T;hen to ,get; her .back to the c'aim, she could have been moved at [tbe rate of 24ft per day. After possession oi the dredge was taken they set to work to get her back to the claim. There was a good deal of interruption to the work by the weather, and the men had to knock off several times. Cross-examined by Mr Holmes : There was a little water in the channel from the' dredge to the claim, but he did) not 1 sound it. The bottom could be seen , quite easily all over it. It was tapering from about 3ft in the centre to nothing on the siJes. There was not enough water to float the dredge back again. John Creighton deposed that when Mr Tilburn came down to take posses--1 sion of the dredge she could not be I turned one way or the other. Mr ! 1 Lawson, the manager, tried to turn her before that, but failed to do so and went on dredging. ' J. E. Biunton, recalled, stated that he disagreed with the evidence that had ibeen given with regard to the taking back of the dredge. She could have I been .fl ated back without' turning. It was as easy to take her backwards as forwards when not dredging. By Mr Sioa : The cut of the dredge 1 was open from end to end. I left the cut ope d that I could take her back at a moment's notice, if required. J ran 1 the dredge off the claim to try and get gold. Mr Sim contended that there was | nothiug in the agreement wbich compelled Dr Burns even to work the claim ; or supposing the dredge to have 1 been on the claim at the time of delivery to Dr Burns, to return the dredge to the - company bn the claim. As to the second 1 ground of action, Dr Burns had given the; company ample notice and time to 1 takJß up the adjoining claim if they so 1 wished, and had written io them to 1 't}ie effect that if they did not do so he 1 would take np the adjoining claim himself. Therefore on both the claims he submitted that defendant wag entitled to the judgment of the pourt, Mr Holmes, in reply, contended that if tbe defendant found that the dredge was not on the claim at the time of delivery, then his proper course would have been to terminate the agreement to work the claim. t He had no right tn work the dredge on an adjoining claim. His Honor decided that the adjoining : .claim belongs^p tb,e defendants, ahd thai J juufcr the agreemeuVit was the duty of

the defendant to return the dredge to the plaintiff at the place where posses sion of it Was given to him, or at some place equally convenient to the plain tiff's claim. , > ,The court then roae- >■—— — — jM^M^^MMM^__^_|