COURT OF APPEAL.

New Zealand Times, Volume XXIX, Issue 4262, 17 November 1874, Page 3

COURT OF APPEAL.

Monday, November 10. (Before Sir G. A. Arney, Chief Justice ; Mr. Justice Johnston, Mr. Justico Richmond, Mr. Justice Gresson, and Mr. Justice Chapman.) HOKITIKA AXD GKEVJIOUTH TRAMWAY COMrANY V. THE COUSTY COUNCIL OF WESTLAND. Mr.' Newton and Mr. Button appeared for the appellants, the Attorney-General and Mr. South for the respondents. This was an appeal by the plaintiffs against the decision of the Supreme Court, Nelson, in making absolute a rule of that Court obtained by the defendants to show cause why judgment should not be arrested, or, in the event of the judgrrent not being arrested, why the verdict should not be reduced to the sum of £5227. The statement of the caso before the Supreme Court showed that the plaintiffs on the 6th of May, 1866, entered into a contract with the County Councilforthe construction of atramway from Hokitika to Staffordtown, and undertook, in the event of any Government road being opened that should compete with the tramway to its detriment, to pay the plaintiffs reasonable compensation for any loss sustained thereby. Some time afterwards, the Government made a road alongside the tramway, and on the Sth of August, 1870, it was opened for traffic, and has Bince caused the plaintiffs great damage and loss. According to the declaration the defendants had repeatedly acknowledged their liability, more particularly by resolution of the County Council; but the pleas put in by the defendants were to the effect that the plaintiffs were not duly incorporated under the Joint Stock Companies Act, IS6O ; that the road constructed by the Government did not run parallel with the tramway, and was not within the distance alleged ; and that they had not admitted that the plaintiffs were entitled to compensation. In mitigation of possible damages the defendants further alleged that the regulations made for the construction of the tramway had not been complied with, inasmuch as the works were not completed to the satisfaction of the County Enghieer ; that they were not entitled to damages, as the rolling stock had not been approved by the County Engineer; that the tramway had not been maintained in an efficient condition for the safety of the public, in pursuance of the regulations ; and that the regulations had been violated by the imposition of charges upon foot passengers. The issues placed before the jury at the trial were—(l.) Were the plaintiffs on or about the 12th March, 1866, incorporated under the Joint Stock Companies Act, IS6O, ■ under the name of the Hokitika and Greymouth Tramway Company ? (2.) Did the opening of the roads in the declaration mentioned compete with the plaintiff's tramway to its detriment ? (3.) To what amount of damages (if any) are the plaintiffs entitled ? The case was heard at Nelson, and by direction'! of Mr. Justice Richmond, the jury returned a verdict, assessing the damages generally, and, also up to the commencement of the action, I namely, generally, £15,374 ; and up to the commencement of the action, £5227. Leave was reserved to the defendants at the trial to move to reduce the verdict to the lesser sum, and on the 9th January a rule nisi was issued by the Supreme Court at Nelson, calling upon the plaintiffs to show cause why the judgment should not be arrested on the following grounds : 1. That the contract set out in the third paragraph of the declaration is void for uncertainty. 2. That the said contract, if not void for uncertainty, was not to be completed for one year from the making thereof, and is not purported to be set out in the words and figures thereof, nor alleged to be in writing, and that the said declaration does not aver that the requirements of the 73rd section of the County of Westland Act, 1868, have been complied with ; nor can it be inferred that the same have been complied with. 3. That the said contract is ultra vires of the defendants, and therefore not binding upon them.

4. That the maintenance of the tramway in the said declaration mentioned was a condition precedent to the recovery of the compensation claim by the plaintiffs, and that the declaration does not allege any excuse for the non-main-tenance of the said tramway during the residue of the period of ten years. An alternative application was urged, calling upon the plaintiffs to show why the verdict obtained should not be reduced to the sum of £5227, on the ground that the damages actually sustained up to the commencement of the action could only be recovered in this action. Cause was shown on behalf of the plaintiffs, but the Court made the rule absolute. The questions upon whicli the opinion of the Court of Appeal was sought were : —(1.) Whether or not the defendants are entitled to have the judgment arrested on any or either of the grounds mentioned in the said rule nisi. (2.) Whether or not the defendants are entitled to have the verdict reduced to the sum of £5227 on the grounds mentioned in the said rule nisi. If the Court shall be of the opinion in the affirmative on the first question, then the judgment to be arrested in the terms of the rule absolute. If the Court shall be Of the opinion in the negative on the first question, then judgment to be entered for the plaintiffs in the sum of £15,374, and costs of suit. Mr. Newton, for the appellants, addressed himself to the grounds argued in the Court below in arrest of judgment, talcing the first of those grounds, namely, that the contract was void for uncertainty. He contended that if the contract was uncertain, it was uncertain only as to duration ; and that no authorities could be cited to show that there was any necessity to limit the duration in order to render the contract valid. He referred to contracts of partnership, which very frequently had unlimited duration, and to contracts • of suretyship, which invariably continued as long as the appointment or office of the person, the due performance of whoso duty was guaranteed. | In thiß case, even if the contract was not cer-, tain when entered into, it was capable of being rendered certain on the happening of the events referred to in the contract, namely, the opening of a Government road and the competition thereof, and that the maxim id cerium est quod cerium potest would apply. In support of his argument, tho learned counsel referred to the propositions of law stated in "Addison on Contracts," 560-561, and quoted Curling v. Chalken, 3 M and S, 509 ; McGahey v, Alston, 1 M and W, 386 ; and the Mayor of Dartmouth v. Lilly, 7 Ell. and 81., 07. The second point, namely, that the contract was within the Statute of Frauds, he would take after arguing the fourth point, inasmuch as if the Court were against him on the fourth point, they must be against him on the second. The contract was a guarantee dependent on the performance of a condition as to maintenance : tho duration therefore must be contingent upon the time during which the condition was to bo performed ; therefore, if the condition was to bo performed as defendant said, for ten years, the contract was necessarily not to be completed within the year. There were two constructions to bo placed upon tho contract; the first was that tho condition as to maintenance was that the plaintiffs had to maintain the contract for ten years before they could recover any compensation. The other construction was that they only had to maintain it up to the opening and competition of the Government road. Independently of any special principles of construction which might be'applieable to the pleadings in the present state of the record, he maintained that tho most natural and easy construction of the contract would be

that the defendants should pay upon the opening of the Government road. The contract alleged in the third paragraph of the declaration was as follows :—" That on or about the 6th May, 1869, the defendants entered into a contract with the plaintiffs that, in consideration that the plaintiffs would construct and maintain the said tramway for the use and benefit of the public, the defendants would, in the event of any Government road being opened that could compete with the said tramway to its detriment, pay to the plaintiffs reasonable compensation for the loss thereby." His contention was that the most natural and easy construction of that contract would be to read it as if the word " thereafter" wore inserted before the word " pay." The defendants contended that it should be considered as if the words " for the said period of ten years" were inserted after the word "tramway," where it first occurs. The defendants contended further, that the words "the said tramway" referred to the prior part of the declaration, and would include by reference the term for which the plaintiffs were entitled to occupy the site upon which the tramway was constructed. This could not be so, as the portion of the declaration prior to paragraph three was set forth merely by way of inducement to show the plaintiffs' title, and was merely necessary for the purpose of assessing the quantum of damages, and not necessary as showing the cause of action. If the words, " the said tramway," could refer to the term for which the plaintiffs were entitled to occupy the site, then, if a lease for ninety-nine years had been the plaintiffs' title and set forth the same words would'have referred to the term of the lease, and according to the defendant's contention, no compensation could have been recovered until the tramway had been maintained for a period of ninety-nine years. If, again, their title had been in fee they would have been compelled to maintain it in perpetuity before they could recover compensation, which would mean that they could not recover at all. If reference could be made to any other portion of the declaration it would still be found that the language was ambiguous, and this being a motion for arrest of judgment, the construction most favorable to the pleader must be put upon the pleadings. The learned counsel pointed out that there was no express averment to the condition that the maintenance should be for ten years, or indeed for any period. The contract was not set out in the words thereof ; the argument, therefore, turned upon the construction to be placed upon the language of the pleader. In support of this view—l Salk, 29 ; Weston v. Mason, 3 Burr. 1725 ; Huutingtower v. Gardiner, 1 B. and C. 297 ; and Frarnev. White, 9 L. J., C. P., 337,were quoted. The next point taken was the second, the contention being that even if the Court should consider the contract was not to be completed within the year, still it was not a good objection in arrest of judgment that it was not alleged to be in writing, first, because the contract was admitted by the defendant by pleading over, and that, therefore, having admitted the contract to have been entered into with all due formalities, it was necessary to cite the contracting parties, assuming that they had power to contract (Wright v. Goddard, S ; Adolphus and Ellis, 144) ; secondly, because the objection was too late, and should have been taken on demurrer. Under the English law the averment to writing was unnecessary because it was only a matter for special demurrer (Young v. Austin, 4L. R. C.P., 553). Cornish v. Bank of New South Wales, (1 Macassey's N.Z. Reports, 1 SI), which decides to the contrary, depends entirely on rule 76 of the general rules of the Supreme Court, but that case was decided on demurrer and previous to Young v. Austin being decided. There was nothing in the rules requiring an averment as to writing. The learned counsel argued the case at great length, and at the conclusion of these points the Court adjourned, Mr. Newton having two more points to discuss. MATRIMONIAL, AND DIVORCE JURISDICTION. In Bamett v. Barnett, Rendle v. Rendle, and Carpenter v. Carpenter, the decrees were made absolute.