December 10, 1893. |
CHINA OVERLAND TRADE REPORT.
and was very much under the mark indeed. It turned out when these alterations and repairs came to be gone into that the building was in a very rotten decayed state indeed. In fact he thought it pretty well had to be rebuilt. Mr. Danby's estimate was communicated by Mr. Belilios to Mr. Chatham in a letter dated Oct. 26th, but Mr. Chatham positively informed Mr. Belilios that he would not be bound by the estimate made by Mr. Danby. The defendant also said in paragraph two of his answer that be authorised the Public Works Department to enter upon the premises and execute the alterations and repairs, and that with the permission of the Government he employed Mr. Chatham to supervise on his behalf the execution of the alteration and repairs; and he went on to say that he agreed to repay the Government such moneys as should necessarily and properly be expended in making the alterations and repairs not exceeding the said sums of $4,000 or $2,000 or there- abouts. Apparently the defendant'a con. tention was that there was a fixed estimate come to between him and the Govern. ment-$4,000 for alterations and $2,000 for repairs-and that the Government accepted that estimate blindly as absolutely binding, and that the Government were so foolish as to undertake the whole work on their own account, simply looking to Mr. Belilios to repay them these Mr. Belilios would have them believe that in the face of a minute by Mr. Chatham to the Director of Public Works-that he had in. formed Mr. Belilios that he could not be bound by Mr. Danby's estimate-the Government were actually so foolish as to take over this building, to do all the work themselves at their own risk, merely on the understanding that Mr. Belilios should repay them $4,0 0 for al- terations and $2,000 for repairs. He submitted that such a story was absurd upon the face of it. A letter from Mr. Belilics to Mr. Ormsby dated October 27th practically bore out what he said. Mr. Belilios in that letter said it would be pre- farable to have the work carried out by the Department, adding "I shall be satisfied if it is executed under the supervision of Mr. Chatham and am prepared to pay him a com- mission on the outlay. In view of the expense which the alterations will entail upon me I think it only fair that the Government should pay me a percentage for money expended or $25 a month." Then there was a letter from Mr. Belilios to Mr. Dauby which made Mr. Belilios's intention in this matter absolutely clear. In this letter Mr. Belilios said, "I think it will
two sums.
the Colonial Secretary wrote a brief reply to Mr. Stephens requesting him to inform Mr. Belilios that the Government declined his offer. Mr. Belilios, however, who, as the jury were probably aware, was a somewhat pertina cions man not easily driven from his point, again instructed Mr. Stephens to write to the Government, and Mr. Stephens accordingly on the 7th of September wrote another letter to the Colonial Secretary on behalf of Mr. Beli lios modifying to a certain extent the proposal contained in the first letter. In his second letter Mr. Stephens pointed out that the build- ing might conveniently be adapted to the uses of the Sanitary Department, Health Depart ment, Educational Department, Crown Solici- tor's Office, and quarters for the Chinese, Mr. Stephens also said in that letter that Mr. Belilios would have the place thoroughly done up inside and out and adapted to the purposes required. Ultimately, after a good deal of cor. respondence, an agreement was come to between | the defendant and the Government for the lease by the defendant to the Government for three years of Beaconsfield, commenc- ing from the 1st January, 1898, upon the following terms:-"That Beaconsfield shall be put into a state of thorough repair at the expense of Mr. Belilios, and that such altera- tions and additions shall be made to Beaconsfield as are required by the Government for making Beaconsfield suitable for Government offices." It was also agreed that Mr. Chatham should employ a Government contractor on behalf of Mr. Belilios to carry out the necessary repairs, alterations, and to do everything which was necessary to adapt the buildings as Government offices. It was also agreed that Mr. Belilios should pay for the work according to the scale of charges ususally paid to the Government contractors, and it was further arranged that Mr. Chatham should supervise the execution of this work on behalf of Mr. Belilios as his agent and architect, and that he should re- ceive a commission of 5 per cent. upon the amount which the work cost for supervising the work on behalf of Mr. Belilios. The plain. tiff did that work and provided such materials. and sent in a bill for $17,700, the amonut having been reduced to that sum at the request of Mr. Chatham. The plaintiff had already received $6,500 from the defendant on account on the 18th of January, and that reduced the sum to $11,200, which the plaintiff was suing for in this suit. Dealing with the defendant's answer to the petition, Mr. Pollock said that by paragraph two of the answer it was admitted that the defendant did offer his pre-expedite matters and please the Government if mises to the Government and that the Govern- ment did require certain alterations to be made in Beaconsfield so as to fit it for Government occupation. It was also admitted further that Mr. Belilios did agree to make those alterations and to put the place into repair, but in answer it was stated that Mr. Belilios agreed to put the place into "tenantable repair." He thought that when the jury came to look at the correspon-expedite matters. dence they would see that the words used there Mr. Francis, interrupting, contended that were not "tenantable repair" but "thorough | Mr. Pollock was departing from the pleadings repair." The latter expression occurred not in saying authority was given to the Public only in the preliminary letters written by Mr. Works Department instead of to Mr. Chatham. Stephens to the Colonial Secretary, but was also It was agreed to adjourn until after tiffin to to be found in a letter from the Director of give Mr. Pollock an opportunity of amending Public Works to Mr. Belilios dated 5th of the pleadings. November, 1897. The place was put into tho- rough repair and the defendant "would benefit thereby. It was said also in paragraph two of the answer that the cost of the alterations was estimated to be $4,000 or thereabouts and the cost of the repairs $2,000 or thereabouts. With regard to that point there was no doubt that Mr. Danby, who was then the defendant's arohi- tect in this matter, did estimate the cost of the alterrtions at about $4,000 and the cost of the repairs at about $2,000, and there was по doubt that that estimate was a very wide one and was absolutely incorrect. In fact it was absolutely impossible for anybody, however able he was, to estimate what would be the actual cost of repairing and altering an old building like Beaconsfield, which he thought dated as far back as the fifties. Until some work came to be done on the repairs, until the beams were removed and the repairs were actually gone into, it was impossible for any. one to form a reliable estimate as to what those repairs and alterations would cost, and Mr. Danby's estimate was absolutely inaccurate
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I place Beaconsfield in charge of the Public Works Department to repair and alter as re- quired, and consequently I am writing to Mr. Ormsby to this effect." That letter showed the exact reason which operated in Mr. Belilios's mind in handing over the whole control of the work to the Government, and the reason was that it would please the Government and might
On the Court reassembling,
Mr. Pollock said he proposed with his lord. ship's permission to make an amendment in paragraph two of the pleadings. It was to substitute "Public Works Department" for "William Chatham," and further on to sub. stitute "one William Chatham," for "the said William Chatham.”
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premises and execute the work. His amend- ment simply followed upon what was actually alleged in the answer itself.
His Lordship granted Mr. Francis's applica tion for an adjournment but reserved the ques- tion of costs.
6th December.
Mr. Pollock said he would draw his lordship's special attention to paragraph three of the answer. His lordship would find, as he antici pated the previous day, that the other side had- been trying to depart from their answer as originally drafted. "His lordship would see that some lines at the beginning of paragraph three of the answer had been struck out the lines which stated that Mr. Chatham was the second senior officer of the Public Works Department, and that the plaintiff was employed by Mr. Chatham in his capacity as an officer of the Public Works Department. He submitted that this ought not to have been struck out. It was quite open to his friend to amend by way of making any addition to his answer which be considered necessary to meet an amendment to the petition, but it was not open to him to strike out any statement or allegation in the answer, In making the amendment in the petition which he did the previous day he had in his mind this statement in paragraph three of the answer. As he informed the court the previous day, his argument was that there was a con- tinuous string of agency between the plaintiff and the defendant, coming first of all from the defendant to the Public Works Department and then from the Public Works Department to Mr. Chatham, and then from Mr. Chatham to the plaintiff. He pleaded in the amended paragraph two of the petition that the plaintiff was engaged by the Public Works Department. It was not necessary for him to carry the string any further because they had already an admission in paragraph three of the answer that Mr. Chatham was the second senior officer in the Public Works Department and that the plaintiff was employed by Mr. Chatham in his capacity as officer of the Public Works Depart ment to execute the alterations and repairs.
Mr. Francis said that this amendment would necessitate the re-casting of the answer. It raised a totally different issue. Under the cir- cumstances he asked that the case might be adjourned until Tuesday and that the other side should pay the costs of that day.
His Lordship admitted that the amendment was one which ought to have been made in chambers.
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Mr. Francis said it ought to have been made long ago.
His Lordship-It is a vital amendment. Mr. Francis said it was.
Mr Pollock said it was expressly alleged in the answer that the defendant authorised the Public Works Department to enter upon the
Mr. Francis said in the first place he submit- ted that it was not open to his friend to take any objection of this description at all. His friend obtained leave from his lordship to amend his petition. As his lordship stated the day before,. it was an amendment on a vital point. He (Mr. Francis) had general leave to amend his answer to make such amendment in that au- swer as occurred to him in the exercise of his best discretion in the interests of his client as necessitated by the amendment of the peti- tion, and he submitted that any amendment he had made, whether of omission or addition, was perfectly within the leave which was granted. He thought his lordship would see that although these words were struck out substantially the same allegation was contained in the amendment made to the previous section. His lordship would see that in the first form of the petition the allegation they had to meet was that Mr. Chatham was Mr. Belilios's duly authorised agent and that Mr. Chatham engaged and employed A Kok and established a contract between Mr. Belilios and A'Kok. His friend amended that got rid of the allegation entirely and now claimed that the Publio Works Department were authorised by Mr. Belilios to employ a person to do a particular work and that by employing any person the Government established a contractorial relation between him and Mr. Belilios. Mr. Francis proceeded to deal in detail with the amendments in his answer to the petition.
His Lordship said he thought the only way to get rid of the difficulty was for Mr. Pollock to make a formal application to re-instate the paragraph in question in the answer. On the whole he was rather of opinion counsel should have the opportunity if they wished it of dealing with the matter in a formal way, and he was also strongly of opinion that it would be more satisfactory in the trial of the case that the issues should be set- tled first. He quite understood that otherwise there may be some difficulty in placing the case clearly and properly before the jury. He would ask counsel to endeavour to settle the issues, and if they could not come to an agres- ment the Court might have to settle the matter.
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