WARDEN’S COURT, CLYDE.

Dunstan Times, Issue 474, 19 May 1871, Page 3

WARDEN’S COURT, CLYDE.

Wednesday, May 17, (Before Mr. Warden Pyle.)

Hill v. : Sims-—The Warden delivered judgment in this case as follows : —ln this case lam asked to construe the meaning of a document which it is admitted on both sides to be a [fair copy -the original being lost—of an agreement between the parties to’<the suit. This document 'runs as follows : “’T\nker's~Gully, October 8, 13Sfl. —I, James Hill, being the owner of one-half share, or one-twelfth of the whole, in the Mountain Race, do hereby agree to let my interest in said race (No. of license, 800) to John Simes, for the period of three years from the above date, on condition that he pays me at the rate of one pound (£1) sterling per week, the above Simes to take on himself to pay all expenses in connexion with the claim from date of taking possession till the end of the term, and deliver to JamesJHill, at the end of said three years from tsaid date, the race, in l feas good order and condition as it is at the present time. The above rent to be paid to James Hill’s order at the end of every washing-up in Mountain Race Company’s claim. ” if there were anyjlatent ’ambiguity' in this 'document the Court would hive to declare, not what either party might intended, but simply what'the words'used might be fairly to express. But Ido not find any ambiguity, and, in fact, I am at a loss to comprehend how any could be supposed to exist. The words are very plain indeed. Hill agrees Ito let and Sims agrees to rent Hill’s interest in the Mountain race, paying at the rate of £1 per week therefor, and Sims further convenants to “pay all expenses in connexion with the claim from the date of taking possession." Nothing it would seetrt can well be plainer than this but the real contention appears to be that the race as it existed when the agreement was entered into was. for all practical purposes, useless. Sims says “I should not have received anything as lessee unless a new race had been cut.” It is further alleged that Hill, as owner, hfis been or will be benefitted by the cutting of this new race, and it is argued that, on these grounds, Hill should be charged with the wages of the hired man who, during the cutting and formation of the new race, represented the interest leased by Hill to Sims. This then I take it is the question at issue. Now it seems to me that this is a matter wherein the time honored maxim, caveat emptor, “let the purchaser beware,” may fairly be applied. The agreement cannot be so wrested from its plain meaning as to be made to imply that the lessor gave any undertaking that the old race was sufficient for working the claim. There has been no allegation of any such undertaking, nor has it been attempted on the part of the defence to show that Uny fraudulent or wrongful misrepresentation was made by the plaintiff to induce the defendtnt to lease plaintiff’s interest. . To say merely that the old race was useless is therefore no reply to the plaintiff's demand. It has been held by the English Courts that a covenant in a lease of a coal mine or a salt mine to raise and work so many tons of coal or salt a year and pay a specific royalty, is not discharged by the proof that the mine is exhausted and that there are no more coals or salt to be raised ; and so this lease or agreement is not discharged by the mere reason that the claim attached to the race could no longer be worked by conducting the waters thereof in their old course. If both parties had known at the Piffle of making the agreement that it was impossible to use the old race advantageously then, perhaps, the contract might have been set aside. But what are the facts ? The agreement was made and possession taken by defendant in October, iB6O, and, by his own admission, it was not till nearly twelve months thereafter that it was mooted that a new race should be cnt. Further it appeared that no deceit could have been practised by the plaintiff, because defendant has himself a larger vested interest in the property than the plaintiff, holding a one-sixth share as of his own right, and adding one-twelftb, the rented or leased interest uhder review, being a one-fourth interest in the whole, that he was a consenting party to the cutting o! the hew race and that he considered it advantageous to his own interests to construct that race is not denied ; and there is nothing whatever before the Court to show that the changing of the course of the taco has been such 8s to confer a lasting benefit oh the plaintiff, or that, at the expiration of the terra of the agreement, the race may not require to ho

-again shitted. Such being the circuml-

stances, I give judgment for plaintiff, - £37 19s. ; costs of Court, 13s. ; two witnesses’ attendance, 30s. each'; and professional costs, £3 3*v