WARDEN'S COURT, CROMWELL.

Otago Witness, Issue 679, 3 December 1864, Page 6

WARDEN'S COURT, CROMWELL.

ThUBSDAY, 17th NeVKMBEB,

(Before Mr Warden Kobiuson and Assessors.^ DAMON AND PARTY V. SHA.NLEY AND PARTY.

The pl-'intifls complained that the- defendants had refused to put them in possession of their race, in pursuance of an agreement with them on the 21. -t September last, and they qlaimechthe sum of 1.700 damages sustainei by thr-m, for work done and losses in consequence of breach of their agreement. ' ' * , Mr ( 'ampbell. of Queenstown, appeared for the plaintiffs ; and Mr Elcke for the defendants. , The plaintiffs proved having' made an agreement (produced) with' defendants on the 2lst September last to rent their race for 12 month?,' at Ll6 per month, payable ia advance, the-first payment to be made when they ' brought tha water on the claim. They took a claim on thej north bank of the Kawarau, and commenced cutting their branch race on the 22nd September, j and continued tbe work until the Ist November, but finding greater difficulties than they oxpected to encounter in cutting tho rsca to ibis claim, j they abandoned it and took up another piece of j ground, a mile nearer the township of Cromwell, : and brought the water on to that claim instead, of which, they informed the ■ defendants, who made no objection. On the 2nd November they teadered the firsb month's rent to tee defendant Stanley, who refused to accept it, stating they (;lie plaintiffs) had broken the agreement, ana they had let the use of the water to another party (Kelly and party). • - j The plaintiffs made out th'.ir damages by setting out their loss of time in cutting the j branch race, and the rent they could have cb- ] tamed from another party sines the 2ad ofj November, to be LlB4, and prospective damage* j for their having to abandon their claim at L 516, making together, the sum of L7OO claimed. They proved the)' had not broken tbe agreement in any way, nor abandoned their right to its fulfilment by the defendants, in proof of which thi'y gave evidence of conversations with tue defendants Sbaaley and ttouger up to the 27th and 29th of October ou tbe subject. The defendants set up as their defence that it was understood, that the plaintiffs wore to take the water to their first claim, and that was the meaning of the last clause in the agreement, namely, " The first payment to be made when the water is brought on the claim?' And that the plain tiffs broke the agreement, by giving up ail right to the water some days before the 2nd of November, in consequence, as they said, of not being ab e to go on with it for want of funds. In support of the Shanley stated conversations he had had with the plaintiff oh this subject, but he would not swear that he did not say on the 27th October to O'Briau —one of the plaintiffs— that " when you pay tho Ll3 you can have the water, but not before," or words to that effect. He had let the water on b.half of tho Race' Company to Kelly andparty, to be paid tor when they obtained payable' gold out of their ground ; that be did propose to charge them at the'- rate of 19 per week, for. it, but he intended it a joke ; that Daiton had stated to him in the presence of his brother, that he must abandon the race in consequence of not' haying sufficient funds to< carry it on. Shanlej's brother proved' that Daiton stated he should abandon the race, and Shaniey might do what he liked with it, but nothing more could be got from him as to ' the ■ previous conversation with Shanley j at this interview he was positive Daiton referred to the race and not the fist claim they held. , Mr Gouger,orie of the defendants, proved that, one of the plaintiffs called upon him and statal that unless' their party were paid, 80s per week each, by the 'defendant?, could not carry on the race a« their funds were exhanstedi » ' <

. At the conclusion of the defendants'. case, Mr Bicke addressed the' assessors, condning bis reraarkatothe fact of the' plcintifi^ having aban doned the claim to which' they first intended to convey" the water, thereby breaking the agreement, and ' that the plaintiffs had abandoned their right to the water for tho want 6i funds.' Mr .Campbell replied generally upon -the evideß?e on, .both sides, impressing upon the awasors that from conversations between the parcl-a up to the 28th of October, the plaintiffs had stated they had no intention of abandoning; the undertaking, but continued to' work at It to thel-fc iVovfcmber, acoording to their evidence, which was not denied on the other side. The only abandonment on their part was' that of the first daira, of which the defendants had full notice rind made no objection— that one of their own witnesses (Fox) stated he considered when the agreement was entered into (he being a party to

it) they could brinst the water to any place- ih&j thought payable 1 ground— hdt to any particular claim sinH they were, bound by that evideaeec and with regard fo Mr Shanley's evidence, he had .umon cr^ss examination altered hi* eyideric^ in chief, 'that he avp r -ared unwilling to swear posftivelv to" anything except h'w conviction that the-. plaintiffs hail abandoned the undertaking ja^d Mr **"'v<ter's evidence-. was a itatemeut of his' suppositions with reference, to the conduct of . BlßCKburn. of whom he had ourphased a share m the nfeiilini's racp, o^e ot whir-h suppositions was *h \t as he liad sold out of that race he had given ud 'the undertaking with the plaintiffs^' although he had made no statement to that effect. Ttip War -en summed up ,th* -evidence at fait length r ery impftrrially, and after the assessors had conferred for half an hour, they returned a , verdict that the plaintiff' bail abandoned their agre 1 ment, which was virtually a verdict for th& defeo a'>t ■ • ' ,