189

D.—4a

to take the moneys which are in the Suspense Account on account of their selections as far as they will go, the lands being charged to them at their B 1 value ; and that the company is entitled to make other selections to meet the balance of the £20,000 and odd pounds, which I will state exactly. Mr. Gully : That is satisfactory to us. Mr. Cooper: I have very few remarks to make, because I went so fully into the matter on Thursday, Friday, and Saturday last that it would be improper for me to take up any very considerable time of the Court. There are, however, one or two points I wish to remark upon. The first is the question of damages. There is the case of Hobbs v. the South-Western Eailway Company, which has been put forward so strongly by Mr. Gully as an authority in favour of the Crown. That finding has been practically overruled by the Lords Justices of Appeal in a later case. They did not go the length of saying that they would overrule it, but they did not acquiesce in it, and practically they could not understand how the Judges had arrived at that result. That was in a case already quoted to the Court, MacMahon v. Field. It is quite certain that, if the decision had been appealed against, it would have been reversed. Lord Justice Brett says, " Now, I must confess, if Ido not acquiesce in that case, I cannot agree to it." The case referred to has been distinctly disapproved, and we rely upon the case of MacMahon and Field in the Court of Appeal. Now, on the question raised by Sir Robert Stout, as to the legal meaning of the contract, I have nothing further to say. My contention was as clear as I could make it in the first instance, and it is not part of my duty to go over my original address. On the question of the principles of damage, I do not see that Sir Eobert Stout has answered the position that I have placed before the Court. In fact, I fail to see that there is any disagreement between us as to the question of law. His statement is only giving from another point of view the rules I have endeavoured to lay down, which are sound rules ; and if in your judgment there is a breach of contract, I think we are entitled to bring in the principles which I have carefully endeavoured to state to the Court. The case Churchward v. The Queen has no bearing whatever on the present case, and I must confess I failed to appreciate the argument of either Sir Eobert Stout or Mr. Gully upon this point. I can scarcely conceive that they can seriously argue in this case that, because Parliament has provided no funds to meet damages for breach of contract, therefore we are not entitled to recover damages for breach of contract. That is one proposition that has been made. Or, if we are entitled to recover damages for breach of contract, where Parliament has not provided funds, we are bound to proceed for a remedy at law under the Crown Suits Act. I fail to understand that that argument has any force in it at all. The arbitration clause is quite clear. It contemplates a breach of contract —that a difference may arise between the parties as to what their rights and liabilities are. A difference may arise between the parties as to something done by one or other of them under the contract. On the other points, with regard to the right to arbitrate on the breach, Ido not understand that these are questions which are now open for argument, because I understand the jurisdiction has been accepted by your Honour upon all the points of the case. On the question of damages something has been said by Mr. Gully, lie said that this contract was originally a worthless contract —that the company took up something which was non-payable—that they could not possibly anticipate obtaining any benefit from it. My answer to that is that you have to take into consideration the position of parties at the time the contract was made. No doubt since the contract was made, owing to the wrongful action of the Government, we claim that such a delay has been caused and such obstacles placed in the way of our obtaining money, that, whether it was a good or a bad contract, we are entitled to look at what the Crown on the one side and the company on the other considered was the value of the contract when it was first mentioned. I say that the Crown to some extent, at any rate, is estopped from saying that the company entered into a bad contract; and that in the opinion of the company it was a good contract at the first. But the circumstances which have turned that good contract into a bad one are, I submit, such as to entitle us to claim that there has been a breach of contract by the Government. On the question of figures, I could not add anything to my former argument, and Ido not propose to discuss them again. I went as fully as I could into them on a former occasion, and Mr. Gully has, from his point of view, endeavoured to do the same thing. However, upon one point I wish to make a few remarks : that is, the suggestion that as far back as 1890 the company had determined not to complete this railway. Now, the only ground that they have for that assertion is a letter of Mr. Wilson's published in the Nelson Colonist, and I submit there is nothing whatever in that letter which could justify the Crown in inferring that in 1890 the company had come to the conclusion that they could not carry out the contract. In the first instance, we have to look at the circumstances under which that letter was written. It was written in consequence of some suggestion that Mr. Wilson was not carrying out the work sufficiently speedily to satisfy the good people of Nelson. There is nothing in that letter which indicates that the company were not going to carry out the whole of their obligations. On the contrary, Mr. Wilson says that " the directors are men of high standing in London, willing to carry out the whole of their obligations under that contract." It is true he goes into the question of the property-tax, and he says, "the property-tax is pressing rather hardly upon us, and that may render it difficult for us to get the money." But there was no suggestion in that letter that there was any desire on the part of the company to do otherwise than to fulfil the contract, and in a proper spirit to carry out their obligations under that contract. In reference to the other suggestion, that in April, 1891, Mr. Wilson intimated to Mr. Seddon that the company were not able to carry out their contract, the answer to that is that Mr. Wilson had no knowledge of the finances of the company in London at that time, and he was speaking not as a financier of the company, but he was speaking simply as the engineer of the company. It was quite clear from the evidence in April, 1891, that there was no intention on the part of the directors of the company in London such as has been stated.