TAUPO TOTARA CO.

Dominion, Volume 3, Issue 872, 19 July 1910, Page 9

TAUPO TOTARA CO.

FREIGHTS ON THEIR RAILWAY. AND A FLAX CONTRACT. The whole of the proceedings before tlio ■ Court of Appeal yesterday were concerned with, an agreement between certain flax-, millers and the proprietors of a private railway and some flax-bearing lands. The Chief Justice (Sir .Robert Stout) and Justices Williams and Chapman were on the Bench. The appellants were tho Tanpo Totara Timber Company, Ltd., and the Wellington Industrial Development Company, Ltd., and the respondents were Michael Lynn and Sebastian George Poppolwell, flaxmillers. The Taupe Totava Timber Company, Ltd., in October, 190(1, published an advertisement calling for tenders for the cutting rights of 200 acres of flax. It was staled -in the. advertisement that there were also, close to tho company's railway -line, about 400 acres of Native land under green flax, "which, no. doubt, can be arranged for." The conditions of tender were referred :to iu the advertisement. The tender of Lynn and Poppelwell was accepted, and they signed tho conditions, and set a flaxmill to work. After a, time they made arrangements with the Natives to take lias from tho Native land referred to in. the advertisement and began to do so, but the timber company refused to carry the flax to the mill except at a rate of freight considerably higher than that scheduled in tho agreement as the rate for the carriage' of green flax. . In the previous proceedings before tho Supreme Court the timber company had claimed for flax royalties and freights on their private railway.' This claim amounting t0'.£349 lis. 2d., was admitted, and the dispute was concluded with a counter-claim which had two branches— (1) a largo sum was claimed for breach of alleged _ contract, it being contended that the timber- company had contracted to carry green flax at'scheduled rates from certain Native lands to Lynn and Poppel well's mill,- and had refused to do _ so, and -(2) a further sum was claimed as damages for delay in conveying fibre from the mill, whereby the 1 mill was shut up for some 12 days. The total amount of the counter-claim was .£773 13s. 9d.' Mr. Justice Edwards, holding that it was obligatory on the company to carry Native Jlax at the schedule rates, decided in favour of Lynn and Poppolwell on the counter-claim, and awarded them damages—i(l7o for loss of the Native flax cutting and M 5 for the stoppage of the.mill. Against this judgment the timber company and the Development company appealed. Mr. C. P. Skerrett, K.C., with him Mr. .T. L. Stout, appeared for the appellants and Mr. Ueid, of Auckland, for the respondents. Mr. Skerrett, in the course of his argument, reviewed the terms of the agreement hud contended that there was no obligation, either express or implied, upon the company to carry Native flax, though there was an implied obligation to carry green flax, other than Native flax. He also argued that Lynn and Foppelwell, in signing the contract, could not have been influenced by the prospect of getting Nativo flax, because they did not attempt to do so until a considerable time had elapsed, and because tliey knew that-other people had the right'to cut the Native flax. Argument for the..respondents' hati not concluded when the Court adjourned until 10 30 a.m. to-day. .