March 30, 1908.)
would work unjustly to the profession to which he belongs, or to the interests of those who avail themselves of their services.
Now to put this into practice, it was very strongly urged upon me on the authority of of English case-law, that the quantities which were given to the contractor by the Engineer before tendering are not to be taken as part of the contract, but are only as an estimate: that it is the contractor's duty to look out for himself and work out his own quantities; and that as the Court of appeal said in re Ford and Benrose's Arbitration, there is no warranty by the architect or the architect's employers that they are accurate.
I must interpose this remark,-That this 'doctrine is, so far as I can sce, not the doctrine laid down in Thorne's case; what was there decided was that an action would not lie against the principle on an implied warranty that the architect's plan was capable of execution: but I certainly understand the Lords to say that they did not decide that the contractor could not have sued on a quantum meruit for the extra work entailed by the necessary change in the plans owing to their insufficiency, if he had taken the proper steps to do so. The action on the supposed warranty seems to have been an ingenious legal argument devised by one of the cleverest lawyers at the Bar, Mr. Ben jamin, in order to get tho contractor cut of the difficult position in which he had placed himself. However this may be, there seems no doubt from subsequent cases that in English law the quantities as supplied by the architect or engineer are held to be no part of the contract. Learned Judges have created the duty on the con- tractor to ascertain the true quantities for himself. I have looked through many judgments, but I do not see in any one of them this conside: ation —which seems to me a practical one-What is to happen supposing that one of the tenderers, more wary than the rest, works out the quan. tities for himself, finds them, say, two million cubic yards wrong, as was the fact in one case, and tenders accordingly? I think it may be assumed that his tenders would not be acopted, but that of some other contractor who bad relied on the architect's quantities; he would come to grief instead of the other mau, and the same action would be brought by another plaintiff and so through the whole lot of tan. derers. The law worked out at home seems, with great respect to those who have elaborated it, illogical and unpractical: but, as Sir George Jessel once said "Such is our law." But turning to this contract, entered into in the
circums'ances which have been laid before the
CHINA OVERLAND TRADE REPORT.
that the contractor was liable to re-build under his contract, because this sort of loss was in contemplation of all parties. The contractor had not been far-seeing enough that was all. There was no defect in plan or in the carrying it out, the extraordinary flood was the cause of the disaster, And in Jackson v. Eastbourne ¦ Local Board where there was a contract to build a sea-wall, it was held that the contractor and not the employer takes the risks of inter ference with the work while in progress by the action of the wind and wares, because these are the risks incidental to the complete performance of the contract in the ordinary contemplation of all parties. I gather that this view would have been taken independently of the special clause dealing with the sea and weather damage, And it is quite intelligible. If a man contracts to build a high chimney he can't make a claim because the top is blown off by a gale of wind before it is finished. But those cases seem to me to have no application to the present. The rubble mounds were destroyed because, as I have already found, they were of an incurably defective design. That certainly was not a risk incidental to the complete performance of the contract in the ordinary contemplation of the parties, and this fact also takes the case out of the Brecknock Bridge Case. Clause 4 of the con- tract was relied on ; "The contractor shall b responsible for all injuries caused to the works by any inclemency of the weather, and shall reinstate all such damage and thoroughly complete the works.
The answer 14 plaiu tested, as it should be tested, by the principles of the law of torte, the iuclemency of the weather was not the "cause in the legal sense of the injury to the mounds, but the defective design. Aud 80 far as the maintenance clauses are concerned, clause 2 operates during 9 months after com- pletion, and clause 1 can only apply in the case of risks contemplated by both parties: and I am clear that to maintain works which, are inherently defective owing to the design being defective was not such a risk.
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about it are that the contractor undertook to make the railway from terminus to terminus, and not to do certain works. He undert ok to do it for £200,000, the amount which had been fixed by the Brazilian Government guarantee, and the company was formed on the express basis of that guarantee, and so was the contract. The question was whether the Company should be made to pay more because the architect who bad made a mistake of 2 million cubio yards in bis quantities bad said that the extra cost should be paid. The Court of Chancery held that the Company was not bound by this vague premise any more than in Scrivener v. Pask, the employer
was not held liable for additional work because
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bis architect had in the course of conversation given his builder whom he had to engage some inaccurate quantities. Bottom's Case bears on another branch of the claim-the sinkage. The contractor there was negligent enough not to make an examination of the soil in which he had undertaken to construct a drain. Being spongy it turned out impracticable at anything ap proaching his contract prices. That was clearly his own fault. This case is important in view of what I have already said about the application of English law in this Colony. As clearly as I have held the other cases inapplicable, 80 clearly should I hold this ca e applicable. The Chinese contractor being told, or even without being told, to find out sinkage for himself, must do so at his own risk. And if the action has been on the contract he could not hare recovered anything specially for sinkage, but only for the pierre perdue at his contract price, $1.70, in which he has in fact allowed for sinkage.
Here again we must look at horn's case ; but I do not think it appliee. For the con- tractor here, saing on a quantum meruit, is doing precisely that which Lord Cairns thought was a possible course open to the plaintiff, and as to which he declined to ex. press any opinion. But again if I am wrong in this interpretation, I do not think the circumstances fit into that our at all. Mach emphasis was laid by the Lords on the possibility of the contractor himself, by his WD capable rngineer, testing the feasibility of the Cubit: plans, for the fallest information as to materials and construction of the caissons was given, and there was a clause in the special case that the difficulties of execu. tion might have been discovered by the con tractor's own Engineer. Bit here there is a point which I am not. at all sure an English contractor might not rely on. By law these plans should have been approved by the Public Works Department, the fact that they were allowed to go on should les a! reliable indication, almost amounting to guarantee, to the contractor that they were, sufficient for their purpose; certainly that they were so inherently defective as, it now transpires from the evidence of the Director, be bimself thought they were. If again I sam wrong in this, then I revert to that question of the application of English law, and I put this question to the 888-BROT Is it the well-under- stood practice of · hindsa contractors to rely on the architect's or engineer's pisos as hung of sufficient stability for the work they are designed to perform? His answer is Yes. There comes the third point with regard to the sliding forward of the sea-wall. I put these questions to the assERBOT Was this disaster due to had workmanship? His answer is No
And the question whether the disaster
to Was due inberent defects in the design of the wall and its pierre perdue mound has already been answered in the affirmative, because in the assessor's opi nion sufficient precautions were not pliuad by the engineer to ensure its stability
а
Court, I do not believe it falls within this principle even as it stands: I am certain it does not if I apply to it the somewhat novel theory of the application of English law in the Colony which I have elaborated above. But in order to set all doubt at rest I put these questions to the assessor :-Is it a well ascertained practice in entering into these contracts with Chinamen in Hongkong, for the tenderers to rely on the architect's or engineer's figures in the bill of quantities Is it wellunderstood that the bill of quantities: is intended to be an accurate representation of the amount of material required? His answer to both is Yes. The result would be that the contractor could sue for extra materials and work for the excess. And this is justifid by Mr. Danby's own estimate of what he proposed to allow the contractor for the error in the estimate of quantities for the rubble mounds, wbiob was far in excess of that estimate. (Column C of Exhibit 27) The English cases bear on three different parts of this dispute. First, the error of quantities for the rubble mounds, which I have already dealt with secondly, the liability of the contractor to repair these mounds which were practically destroyed by the typhoon in September 1996, thirdly, the liability of the contractor to set up the sea wall after its sliding forward. 1 take the second point-Was the contractor liable to repair the rabble mounds after they had been knocked to pirces by the typhoon ? The Brecknock and Abergeven y Canal Case was relied on. There was in that case a covenant to build a bridge in a substantial manner, and a special covenant to uphold and keep it in repair for seven years, which clearly means after cum.
One or two o her cases were cited to which pletion. The bridge was broken down by an
The Say Pardo Railray Care in a must refor extraordinary flood, and Lord Kenyon held peculiar one the points to be specially noted
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The BES WI mase the case of the sea wa}{ identical with that of the ruthie mund, and the same principles must be applicabie
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The last case I should refer to is one which was not cited-Bush v. Whitchiven Trustees (Hudson II p. 121) where a general principle is laid down which, if it were necessary to apply it, seems specially applicable to
this case-
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Where the circumstances coutemplated by a building contract for works are so changed as to make the special conditions of the contract inapplicable, the contractor may treat the con. tract at an end, and recover upon a quantum meruil". I think when the defective nature of the designs was made apparent by the typhoon that the original conditions of the contract be- came inapplicable, to adopt Lord Esher's language, the conditions of things had been s0 greatly altered "that it was not reasonable, or right, or fair, or just to hold that the original contract Was made with regard to circumstances. With regard to this action I content myself with adopting this language of Lord Esher. I wish too that the con- tractor's offer to ompromise had not been introduced. The man was in a panic at the accumulation of disaster; the other side were pressing him with regard to rights which they did not possOGS,
he did not know his own rights, which he has at last arrived at after much
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arduous argument.
those
I said before I began to examine the English cases that their application depended from the counterclaim. I must now go back to that point.
Patting the application of these cases out of the question for the moment, the counterclaim in so far as the part which is not abandoned is concerned is rightly onceived in principle, because the rescission of the cutract by the coutractor, although justified, does not relieve bim of any liability which he bas incurred under it whilst it Wae in existence 'Therefore if be bad been liable in respect of any of the matters which I have dealt with, or in respect of any other matters, prior to the ejectment from the works and consequent rescission of the contract, he would still remsin liable. I must therefore go through the counterclaim. It is rather ■ complicated process as there is a carious slip in drafting.
The defendants counterclaim for $26,879 and $25,720 which sums are referred to in paragraph 11 of the Statement of Defence. The second amount which was for the pensity of $75 a day for overtime, has been abandoned as a necessary result of my judgment on the special case
There remains the claim of $26,87 ) which in reduced as we make out) to $13,234.4), oa account of the allowance which must be made in repect of the now slope to be given to the the now
contract. pierre perdue 10
This
amount is arrived at by charging
the
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