S.C. 1901. The works done appear to have been quite successful in fencing out the new channel and returning the stream to the old one. The respondents have paid a small sum, their pro- INHABITANTS portion of the cost of replanking the bridge. They and the other local bodies did not approve of the proposed works, but objected to them, and have, with one exception, refused to contribute towards their cost. 66 As I have said, no part of the moneys was directly expended on or in connection with the structure of the bridge. The appellants base their claim on the ground that the object and effect of what was done were to keep the bridge effective as a bridge that, without a stream under, it ceased practically to be a bridge, and that the expenditure was therefore moneys properly expended in maintaining" the bridge. This is au ingenious way of putting the case; but I have no hesitation in holding, with the Stipendiary Magistrate, that it would be putting an altogether strained and non-natural meaning on the words to accept it. The bridge has not been in any way structurally altered or touched. The work cannot, of course, be called "repairing." What is “ maintaining is not always easy to say. It must in every case be decided with reference to the subject-matter. It must at least mean something directly or indirectly referable to the structure of the bridge. I am not prepared to hold, as was contended by counsel for the respondents, that the work must necessarily be done upon or to the bridge. Works reasonably necessary to maintain it structurally may, I am inclined to think, be done outside it. If it were the case that a change in the current might, if continued, undermine a pile or injure supports, I should be sorry to hold that a groin or other erection in the river to divert the current might not be a work done in maintaining the bridge. The work appears to me to have been done rather to mainthe road or passage over the shingle leading to the approach of the bridge than to maintain the bridge. The claim of the appellants is to be entitled, under a warrant authorising a contribution to the annual maintenance of a bridge, to compel a pro ratâ contribution to what might be an unlimited expenditure on protective works for confining the river in one channel and preventing floods and overflow. I should be sorry so to interpret the language of the statute unless compelled. The appellants could, under section 114 of "The Public Works Act, 1894," have taken steps to obtain authority to construct protective works, and to have the cost OF ASHLEY ROAD DISTRICT อ. INHABITANTS OF KOWAI ROAD S.C. 1901. of such construction and the subsequent maintenance and repairs of such works allocated among the various bodies interINHABITANTS ested. In such proceedings the various bodies would be not ASHLEY ROAD only consulted, but would have a right to challenge the necesDISTRICT sity for or usefulness of the proposed works. OF INHABITANTS KOWAI ROAD It was endeavoured during the argument of the appeal to OF attach a liability to the respondents on the ground that the DISTRICT. approaches to the bridge were endangered by the floods and new channel. No such claim is made in the particulars of demand, the only reference to approaches in which is in a reference to the Act of 1894. Nor is there any reference to approaches in the notice of appeal. The only reference to approaches in the evidence is a statement by the Clerk that "the approaches would have been washed away," and a statement by an ex-Chairman that they had constantly to protect the bridge and the approaches. None of the professional witnesses speak of the approaches. It is evident that the main object was to prevent the general consequences of flood, and that the protection of the approaches, if in the minds of the parties at all, was a secondary and subordinate consideration. The fact, if it were a fact, that generally protective works against floods would incidentally protect approaches, or even the structure of a bridge, would not make expenditure on such works recoverable as maintenance of the bridge. The rule stated in Reg. v. The Mayor of Lincoln(1)—that a prescriptive liability to repair a public bridge, unexplained and unrestricted, includes the liability to repair the highway at the end of it within a distance of 300 ft.-is not applicable to the colony, where the obligation is statutory and, of course, not prescriptive. The Public Works Act of 1887, for the first time, includes approaches and protective works in connection with a bridge as part of the bridge. The Public Works Act of 1894, to which I have already referred, makes the same provision as to approaches and protective works. These enactments, though not, of course, declaratory of the law, at least show that the Legislature thought special words necessary to include protective works and approaches as part of a bridge. The appeal will be dismissed, with £7 78. costs. Solicitor for the appellants: G. H. Helmore (Rangiora). Solicitors for the respondents: Johnston & Mills (Christchurch). (1) 7 L.J. Q.B. 161. S.C. SIEVWRIGHT AND ANOTHER v. THE CROMWELL PROPRIETARY GOLD-MINING COMPANY (LIMITED). HEARING. Vendor and Purchaser-Option to purchase-Deposit-Right to recover back. DUNEDIN. 1901. The defendants agreed with the plaintiffs, as agents for a foreign Feb 18, 22. syndicate, to grant to the syndicate a three-months option to purchase a tailings claim belonging to the defendants, in order to permit of an ex- WILLIAMS, J pert inspecting and reporting on the claim. In the event of a favourable report being received the defendants were to receive a cash payment of £500 and to be allotted one-sixth of the total shares in any company formed to work the tailings, such shares to be fully paid up and it was stipulated by the defendants that they should receive £100 cash deposit. The expert's report was unfavourable, and the option was never exercised. Held, That the deposit paid could not be recovered back. ACTION by the plaintiffs to recover from the defendants the sum of £100. The facts are sufficiently stated in the judgment. Solomon, for the plaintiffs: The £100 was paid as a deposit, and, as the option was not exercised, it can be recovered back. The plaintiffs are entitled to sue; they were undisclosed agents for foreign principals, and had a beneficial interest in the contract. [As the judgment does not deal with the latter point, the arguments of counsel thereon are omitted.] Sim, for the defendants: The company agreed to give the syndicate the right to purchase, and to keep the offer open for three months if the deposit of £100 was paid. The deposit was paid, and the offer was kept open for three months. There was no refusal to complete till after the three months had expired. The deposit performs two functions—(a) it is a guarantee of good faith; (b) if the purchase is completed, it goes in part-payment of the purchase-money. As the purchase was not completed, the deposit must be treated as the consideration for the option: Ex parte Barrell(1); Howe v. Smith (2); Soper v. Arnold(3). (1) L.R. 10 Ch. 512. (2) 27 Ch.D. 89. (3) 14 App. Cas. 429, 435. S.C. 1901. SIEVWRIGHT v. Solomon, in reply: There is a plain distinction between the cases cited and the present case. In those cases it was held that the deposit might CROMWELL be retained as damages for breach of contract. There must PROPRIETARY be a contract the breach of which would give rise to an action COMPANY. for damages. Here there was no obligation on the part of the purchasers to complete; they were never in default, and could not be liable in damages. GOLD-MINING WILLIAMS, J.:— Cur. adv. vult. The plaintiffs seek to recover back from the defendant company a sum of £100 paid by the plaintiffs to the company under the following circumstances: The company had a tailings claim. The plaintiffs, as agents for a New South Wales syndicate, approached the company with a view of purchasing, and on the 2nd of October, 1899, wrote making an offer. The company on the 4th of October made a counter-offer. Then, on the 5th of October the plaintiffs wrote to the company the following letter: 66 66 66 66 "Dunedin, 5th October, 1899. "The Directors, Cromwell Proprietary G.M. Company (Limited), Dunedin. 66 GENTLEMEN,-Re Bendigo tailings claim: We have sub"mitted your offer of 4th instant to our Sydney friends by 'cable, but are unable to do business on your terms. We are now authorised to make you the following offer: Your company to grant a three months option of the claim to "permit of an expert inspecting and reporting on the claim. In the event of a favourable report being received, your "company to receive a cash payment of £500, and to be "allotted one-sixth of the total shares in any company formed "to work the tailings, such shares to be fully paid up. Your company, on payment of the £500, to execute a proper "assignment of the claim and certain water-rights that exist, "such assignment to be held in escrow by some person ap"pointed by both parties until the allotment of the paid-up "shares takes place, and then to be registered in due course. "The above offer is made subject to our commission of £100 "cash and 10 per cent. of the total shares coming to your "company. We may mention that the capital of the proposed company will probably be about £25,000. A reply "this afternoon will oblige. 66 On the same day the secretary of the company wrote agreeing to the terms of the above letter, "except that one hundred 66 S.C. 1901. v. GOLD-MINING pounds cash on account of option must be paid down, and SIEVWRIGHT "also that if the purchase is not completed within the time CROMWELL *stated no commission to be paid." On the 6th the plaintiffs PROPRIETARY wrote to the company stating that their principals in Sydney COMPANY. had cabled that it was perfectly unreasonable that expert would cost £100. The plaintiffs add, "The above no doubt refers "to the £100 deposit required." On the 7th the secretary to the company writes that the directors, after visiting the mine, may reconsider entering into negotiations, but that in the meantime the offer is withdrawn. So far, therefore, the matter was at an end. On the 9th, however, the plaintiffs write urging the secretary of the company to again place the matter before his directors. Ultimately, on the 14th, the secretary of the company wrote to the plaintiffs as follows: 66 "October 14, 1899. "Messrs. Sievwright Bros. & Co. DEAR SIRS,-I am directed to inform you that the local directors have decided to accept your offer for the tailings, "dated 5th October, with the addition that they receive £100 'cash deposit; and, further, should you fail to complete the “purchase within the stated time, no commission to be paid. Yours faithfully, 66 "L. G. REEVES, "Secretary, &c." On the same day the plaintiffs wrote to the secretary as follows: "In terms of yours of the 14th instant, we beg to hand you herewith our cheque for £100, deposit re Bendigo "tailings claim." The company forwarded the plaintiffs a receipt for the sum of £100,"being deposit on account purchase of tailings." The plaintiffs' principals did not exercise their option to purchase, as the expert report was unfavourable, and the plaintiffs, on the 24th of January, 1900, applied for the repayment of the deposit. The company declined to repay it, and the plaintiffs now bring their action. 66 The contract between the parties is thus contained in the above letters of the 5th and 14th of October, the letter of the plaintiffs of the same date forwarding the £100, and the receipt of the defendant company. The question is as to the interpretation of that contract. Until the letter was sent by the plaintiffs forwarding the cheque there was no contract. The offer of the plaintiffs contained in the letter of the 5th |