CIVIL SIŢINGS

Dominion, Volume 1, Issue 62, 6 December 1907, Page 4

CIVIL SIŢINGS

CLAIM AGAINST THE MANAWATTJ >: ; ItAILWAY COMPANY.-: , ,•■•<• ALLEGED OVERCHARGES. PLAINTIFF NONSUITED. The Court resumed tho hearing yesterday morning of thef'case J. J: Powell v. the Manawatu Company—a claim for £2075 155., being alleged overcharges on the carriage of material for road-making purposes. ■'■ ""- '-'I ~ Mr. Treadwcll-^appeared/for the plaintiff, and Mr, C. P. Skerrett,- K.C. (with him Mr. J. P. Campbell), for the defendant .Company. His Honour said that, in his opinion, the concession iu the rates on, road-making material, was concession. to 'the public through the local hoclies; and* was'not'a concqssion to contractors; also, that the stone in question was not consigned to the local bodies, but to the plaintiff, who might havo diverted any quantity, thereof to other -oust tomers. The .property in the metal did not, in his opiniori', 1 pass'to tho local bodios until ,tho rnetal'had'pebh "actually delivered. 'Mf. Skerrett Wovcd for a non-suit on tho following grounds:—(l) As to all causes of action—That the benefit 'of the. exemption under tho railway regulation can' only bo claimod by a local body, and no local body is a party to the action. (2) As to all causes of action except the cause of action relating to the material delivered to the Hutt County Council^—There is no evidence of consignment to a'local 7 body;'wliich is in any, view of the regulation an;'essential condition to, the, obtaining of .the'Benefit-of che exemption.-: (3) •As tpall causes "of action—The contract botweeff the .pla'intifF and the defendahtCCom-pany'-was a ■a'lSboial contract the consideration ■•• for whipjv was an individuals one tor both'tho right'to \Tork,the defendant Company's quarry, and remove the material, and for the carriage of'the material. ' It is.therefore not withmitho scope of the agreement between , the Governor and the Company, which only relates to the ordinary relationship, of consignor. and carrier. (4) As to all causes of action—Tho evidence is that these payments were voluntary payments made with a full knowledge, of the facts, and therefore not .recovers Me .,•..:.'' Having heard,Mr.,'Skerrett p argument, His Honour intimated that ho was with him onrail -points'.-taut the fourth one,. -. Mr. Treadwell,submitted that tho regulation w question was" one as to the consideration of which there-was grave doubt, and that such being the case-the rule was that the conetruction in favour of the public was tho constructiori'UK'lbe preferred. Counsel-pointed out that..the?fwords in the heading-, to the railway rogiilafcipiu were" Road: (roetal for local that, tho, words ip the ; body of the' regulation "ivoro " Koad V'motal.' and other road-making ■ material consigned to public bodieS': , " " There was, he nothing in tho regulation--that said-tha;t tho bonefit in qjKSiJjtipn . was' oho for_ the)'.local body- and nothing to say that a contrac'tpr who made a contract'with - a local bodylSyas not entitled to tho benefit of the regulation. In his opinion, thojvords ' " consigned/lip'jocal todies-" should bo conetnicd to ; ip<San " consigned for the u's'o or bonolit of aV;local body." Counsel submitted that tho constriction of the term -" consigned to public bodio-s " was a question for the jury ami not for'the Court, the principle being that'tho regulation' involved the construction of wnixls having reference to business terms. The third p/rint' involved was tho .question whether thofe had ' been, compulsion or coercion o'n'i'Hli part of tho company so that plaintiff hald tfcen compelled: to pay for the carriage of. the! road material prices in excess of the mitlinHtfri of Is. 9d. fixod-by the Government . 'regulations. Counsel .subriiiittod that it ivas"Qvi(lent that plaintiff h,'ad had the material carried on terms of payment of okcossivo charges , , beoause there was , no, , 'other method by which; ho could had the matorial carried. Ho contended, 1 ' further, that tho railway regulation applied whether the proporlty'in-tho material had passed to tho local body or not, and, in support of this viow, qupfeed numerous cases dealing with tho construction of tho Customs Act and the provisions. thereof conferring exemptions frorr duty!on goods' importod for tho uso of the Crown. ■-...,■•.—■• . -."■ -.-' ; ■''..:. Mr. Skerrett, in reply, contended that rl could not reasonably bo contended that thi

word " consigned " was a " word of art, or that thoro was any doubt as to tho moaning of the words "consigned to public * bodies. Ho submitted that both had a clear and definitivo meaning according to tho English language and according to law. Thcro was, therefore,* nothing to go to tho jury. He further" urged • that 'it was impossiblo to separate tho oonsideration for quarrying tho stono and that for carrying tho stone. This brought tho matter outsido tho scope of the railway regulation in question. • His Honour said that, notwithstanding tho arguments so ably advanced by counsel for ;tno plaintiff, ho would have to decido in fav;our of the'defendant' Company. Where the meaning'of .words. used : in .a document was not clear, it was.a question for tho jury to decido tho exact moaning which should be assigned to them, but whore, as in the present case, the words used were just ordinary English words, and there could bo no doubt as to their meaning, ,thon it was tho duty of. thp Court to form aJi opinion, and give judgment upon the construction of such words. Counsel for tho plaintiff had urged that tho construction of the words "consigned to local bodies " (which occurred in tho railway regulation in question) should be loft to tho jury. In tho opinion of tho Court, tho only word 'about which thoro could possibly be any difficulty was " consigned, -and as.tho word was not used in a jtcchnical sensb -the' difficulty suggested did not arise.'' It was; ho might point out, be-* coming'a" pfactico" to' leave matters about which thoro was any doubt to tho jury, but it appeared to him that that courso should only bo adopted when the Court had some doubt about the construction of some particular 'plfraso or' word. 'With regard to tho 'regulation,- coiufsel" for" tho plaintiff had in-' ivite'd liihi to givo to if a liberal interpretation, and held that it was a regulation for the benefit ...of. the public generally, and that it applied; in cases where a contractor was employed. :'for the purpose of making roads for public bodies. It appeared to tho Court that tho concession in freight could only be claimed, by a-local body and'not by a contractor. Tho ovidenco was that tho material had been placed in trucks, which were oonsigned to plaintiff himself.. In passing, he might mention that ho was pleased indeed with the ingenuous manner in' which plaintiff had given his evidence, which - was, in the' opinion of tho' Courts well worthy' of credence. Plaintiff had deposed that ho could, if he had. so desired, diverted tho contents -of any of the tracks to other cus-; ■tomors. -.Discussing,tho third objection, His that he could not divide the consideration- in. tho-rway counsel for the plaintiff:'bad. .[suggested. The contract waster tho right to.remove the material from the iquarry,.and also for the carriage. It had ;been admitted by counsel for the Company that this ■ objection- did not apply to tho boulders forwarded from Paekakari'ki. Tho Court would over-rule tho motion for a nonsuit on tho fourth point, but allow a nonsuit on each of tho preceding objections, subpcotto the qualification that objection No. 3 referred ■ only ,-,t0., material "taken from Paekakariki; ; ■-.- -.<-: ■ Mr. Skerretf asked for costs according to scalo,- that second counsel be certified for, and that costs for an extra day bo allowed. : Mr. Treadwell objected to costs being granted, on the.ground that Mr. Skerrett could havo raised tho legal questions upon which ho had obtained tho non-suit, prior to the trial, by an application to state an issue of-law, and in that evont x tho points could havo-becn : deoided without tho expense of a .trial. *' . ' . . , : . His Honour said the point was an important He ; wbuld:lie'ar argument on it this 'morning;:.:- .".'. .i;;:o.- !-.•■;■■: • - i 'The jury,;.-which-had riot been in attendance whilst-the'-non-suit points were being discussed, .was-then.discharged, and tho Court adjourned.