Page
SUPREME COURT. Friday, 27th March.
IN ORIGINAL JURISDICTION.
BEFORE THR CHIRY JUSTICE (SIR FRANCIS Piggott;) and M. J. ORANGE AS A98ESSOR
MARCH 301#, 1906 THE HONGKONG DAILY PRESS MONDAY, MARCH 3
of the wall $10 fest, bad alipped forwards and at the prios fixed by the artseter. The defen- belopplicable and when I come to series of BURTON-ON-TRENT BOTTLED STOUT
CLAIM AGAINST THE STANDARD OIL COMPANY, CALLE
LAU, VIONG WOOD V STANDARD OIL CO.
This scion has been before me on two previous Gecesics, and it is material for a briefly fecior to my former decisicus in order to make A contract was Lo present proceedings clear, entered into 3rd April, 190%, after trudore had ixeu
caid for, between the defendant Co. and the plaintiff, whereby he undertook lei construct certain riclamation works for the Co. at Lai Chi Kok, which included a sea wall, two cubble monads, one of either side, and the necessary filling in behind. The contract was in the meusi icm, and contpired upwards of 60 vlantes: among them the usual arbitration clamo referring disputes arising thereunder to the engineer of the works, the late Mr. Danby. Three fuckdients in the course of the events leading up to this aution have to be noted. The first, that a goodly portion of the work on the rubble mounds was destroyed by the typhoon of 18th September 1906; secondly, that a consider sble part of the sea wall alid forward on 15th Deci-inber 196, und auber qusally on 20th Jauniy 17, the contractor was, ejected from the works, for any alleged failure to comply with the orders given by the Engineer in regard to
A
The whole question as the wall is covered by the fact which is quite clear, that part of one of the clauses (32) of the contract was never intended to be carried out, sud the other (59) was misunderstood. The alling in was done, as it must be and always is done, from the shore to the wail, ad not an Me. Thomas thought he could insist. from the wall to the shore: and it was proved thas proper backing of brick rabbish immediately behind the wall was put from the sea, and that the roostled ditch or space behind the wall however large it was or how full of water, was the inevitable result of the work properly and regularly done.
defendants bave to pay on the quantum meruit | Itances of the Colony English law in only in for the number of yards wetgally allowed sa foros hermander the Charter in so far su it may dants have got what they want, and what they decimons, the key note to which is the custom or into contracts in England, I hesitate to apply mant have, and therefore must pay for, at its practice of a certain, class of people who mater real value.
them as of necessity to the people in Hongkong. These optes are for the most part a highly elaborated structure reared by custom and practics, but resting at bottom on the intention of the parties, the basis of contract among all peoples. That the principles of the English 1sw contract exted to Hongkong there is in England since the Charbag, in so far as they of course no doubt and that decisions given expound there principles should be applied hern is equally clear. But there the certainty of application conses, and when, as I ssy; 1 #nd include customs and practice well understood lo the intention of the parties expanded so as to
It will be said thet understood in this Colony. England, I am bound, to pause and enquire whether those oustoms and practice are so well-
whole
matter with which this case deals, and 1. I set myself a difficult task: fortunately in this case I have an assessor fully conversant with the
kew perte perite, and come by the new
IND
COOPE & CO., LD.
SPECIALLY BREWED FOR THIS CLIMATE.
WHOLESOME, PALATABLE, LIGHT AND PURE.
1 CASK, 4 Dosen Quarts
$16,50
$18.50
34.15
$2,35
8
1 Dose Quarts Pints.
SOLE AGENTS:-
H. PRICE & CO., LTD.
TELEPHONE No. 135.
Hongkong, 26th March, 1908:
WINE, SPIRIT & CIGAR MERCHANTS,
12, QUEEN'S ROAD CENTRAL.
Answer 18
The works, the
the
THE
[35
ROBINSON PIANO CO. LTD.
**
TWO IN ONE”
THE LATEST
MARVEL.
THE
AUTO-PIANO
(A PLANO & PLATER COMBINED),
sasily inspected, was quite well done. But what had happened that considerable portion downwards-17 feet out, and b font down: there wore tracks in the wall, but it was not broken ap; it had not in fact collapsed. Mr, Thomas
Now as to the amount of stone to be paid for very frankly admitted that if the prera perdue had been as described by this witnes, a collapse Much as Mr. Sinde auntested the peint, I am of would have been the reenit, and not sliding opinion that the basis of the quantam meruit is forward and with regard to his own evidence still the contract, in spite of what has been he also candidly said that there was no part called for souvenieros. ita rescision. It is not, thes will be presently seen, s practical question in could connect as of it whigh", be
The this ence, and therefore I do not consider it with this sliding forward. The fall text of the judgment delivered in inference is obvious that there has been much necessary to elaborate the question at any length, the action in which, Lau Cheong Wood and exaggeration as to the bad work; and that I have no doubt that the contract must be Lam Chor, contractors, claimed for $70,000 however much the true line may have been looked to to determine what the true limits of the damping of the stones, the stons dumping ware, and that for the stone from the Standard Oil Company for work done deviated from and materials applied at the defendants he did not contribute to the sliding forward dumped beyond those limite the plaintiff cannot inter or imply the promise, involved in the premises at La chikok is as under. Mr. Y. Slade, of the wall. It is curious that the worst of the recover oven on a quantum meruit. You cannot
structed by Mr. Hastings, of Messrs. Hastings sections-17-on the progrese plane was at
the and Hastings, appeared for the plaintiff and the part of the wall which did not give way quantum meruit, when the circumstances in Hon-Mr.-H. Palleck, K., instructed by Finally, and this is material not only on the which the work was performed farmish it Mr. Atkinson, from the Bee of Messre: Deneen-general aspect of the case, but also in connexion direct negation. We must also look Loker at Deacon, appeared for the defen with the quantum meruit, so evidence was sontract to decide the question whether the given to show that the new contractor had beer plaintiff can recover in respect of the stone sants.
repaired to do anything or bad done anything used in the erroneous line. He undertook to
of all parties. I gather that this view would to remedy the defects of the pierre perdue set it out, and no quantum meruit ons aries out think there will be no diflonlty in arriving at the risks incidental to the complete performance have been taken independently of the special although the diver had reported so unfavourably of his own mistake. But here, wing, to the sound conclusion, I referred to this question of the contract in the ordinary contemplation
to its condition. The defendants have alteration of the section of the wall some of the during the argument, and Mr. Pollook very stone damped in what has been called the "10 pertinently asist What are solicitors to do in advising their clients, if they are not to
vhuse dealing with the sea and weather damage. And it is quite intelligible. If a man contracts adopted it, chaams and all, for their new work.
The next paint is very intimately connected foot ursor in line" bas been absorbed in the new
to build a bigh obimney he can't make a claim make clear would send them adrift frun their because the-top is blown of by a gale of wind with the last-the imperfect way in which the pierre perdue, and therefore there is an implied fallow English case-law for it would smas filling in behind the wall and monads was contract to pay for it spacially arising in regard if bis principle which I am endeavouring to warried out by the contractor. Much emphasis to it, Out of the &194 camio yards of stone
drawing up a contract where one of the parties bad to have no application to the
Chinese, they must try and ascertain them to have no to the present. The
rabble mounds were destroyed because, as was laid on the existence of the ditch, behind still anaccounted for some are absorbed by the moorings. I think the answer is simple. In the wall, full of water, 30 to 100 feet wides mand se varal Test deup, in which beats could come at sinkage under it. I cannot however allow for is
its presence may strengthen tha sen-wall. I plazul- I cannot help thinking from cases which high water, and behind the west mound, of 10 stone damped outside these limits, even though real intention of the partins, "partias" is to have already found, they were of an inourably feet broad and feat demp. It was said that the contractor had been repeatedly told to fill cannot be compelled to pay for work which is have come before me that a Chinaman's inten defeative design. That certainly was not a risk these in, and the suggestion is obvious that if voluntarily done, even though it may benefit tien is very often assumed to be that which incidental to the completa performance of the These figures the arur deer is contracting. Take the simple facts connected parti: and this fact also takes the case out of tract was relied on: "The contractor shall be they had been propily filled in the monuda me, unless 1 bave a chance of rejecting it, and is in the mind of the European with whom he contrast in the ordinary contemplation of the computes at 1757 èabic yards of pierre perilue, with the entering into this contract. The the Brecknock Bridge Care. Clause 4 of the non- would have with rood the typhoon, and the wall have not done 90. would not have slid forward,
whiots is half the amount wed by the altara agreement between the parties was come to ou which added to 73,419 alrently allowed for, salgued afterwards. The contract contains a by any inelemency of the weather, and shall 1 bumber of olauses, some of which are unintelli. reinstate all such damage and thoroughly
complete tion in the line, and 2952-for-sinkage under it the strength of certain documents, the contract responsible for all injuries caused to the works
plain texted, as it should be texted, by MUSICAL makes 77,438 cubic yards to be allowed must note that if to these figures are added gible even in English, and must be meaninglesk
canse" in the legal rense of the injury to the 2773 unbic yards, the difference between Mr. jargon when translated into Chinese. How is Thomas quantity for sinkage, and Mr. Ternor's, it possible to bind the contractor rigidly by the the principles of the law of torts, the agreed to by the latter and 1166 for the dis- terms of that contract, and moreover to those inclemency of the weather was not allowed half of the alteration in line, the terms as expanded and expounded by the Eng wounds, but the defective design. Art str contractor's figures of 8,194 cubic yarde stiilish decisions? It seems to me impossible:
clause 2 operates during 9 months after com- to be accounted for, leave only 236 cubic yards This does not mean that the contract is to be far as the maintenance clauses are concerned, for loss, and therefore I am justified in having torn up, only that we must box little more cars.
ful in endeavoaring to ascertain the real in pletion, and clates 1 on only apply in the case of risks contemplated by both parties. As to the price, I bave taken the stone tention of the parties. I am glad to-day that taken the st-ne books as accurate. books for the quantities used, I must take them my ass or finds nothing in this principle which and I am cleur that to maintain works which
he belongs, or to the interests of those who being defective was not auch a risk. also for the prices on which the price to be would work unjustly to the profession to which are inherently defective owing to the desiga
Now to put this lito practice, it was very paid for them is to be based. This shows an
ing
an allowance for 3 cents for divers, and 3 average of 65 cents per cubic yards and mak-srail themselves of their services. cents for foreman and 20 per cent profit the as-strongly urged upon me on the anthority of be allowed that is a price free from all sinkage were given to the contractor by the Engineer sessor thinks that 85 cents per cubic yard should of English case-law, that the quantities which price. The assessor allows 90 cents for the rubble of the contract, but are only as an estimate: and other risks and it seems to be a reas nable before tendering are not to be taken us part wounds. The 20 per cent profit is taken from that it is the contractor's duty to look out for of prent he expected to realise 20 to 30.009 that as the Court of appeal said in re Ford and Benrose'a Arbitration, there is no warranty by the contractor's own evidence to the amount himself and work out his own quantities: and the architect or the architect's employers that dollars on a contract of $140,000. I think tha paid to Mr. Danby for setting out the line be they are sccurate. plaintiff is not entitled to recover the $1400 cause that must be looked if as part of the
I must interpose this remark, That this general expedses oorored by the prof. General doctrine is, so far as I can see, not the doctrine laid down in Thorne's case: what was there assessor on all the other ems includna prost decided was that an action would unt lie against as in payment under a contract, must cover all
architect's plan was opable of execution but contactor might not rely on. By law these introduced. The man was in a panic at the I certainly understand the Lords to say that plans should have been approved by the accumulation of disaster; the other side wore of items in the claim,
did not possess, he did incidental expousse and financing.
"There are three groups which the assessor bag to deal with, and thefigures they did not decide that the contractor could Public Works Dapartment; the fast that pressing bim with regard to rights which they not bare sued on a quantum mert for the they were allowed to go on should be a
I said before I began to examine the English the plax owing to their insufficiency, if he had gaurantee, to this contractor that they were arduous argument. wil be given specially hereafter,
were not so inherently defective as, it now cases that their application depended from the only have to be mationed in connetion with extra work entailed by the necessary change in reliable indication, almost amounting to a which he has at land not know his own rights,
on the supposed warranty seems to have been them. I must say here that the defendant je taken the proper steps to do so. The action anfficient for their purpose; certainly that they
Putting the application of these cases out of himself thought they were. If again 1 am at a disadvantage, because owing to Mr. Danby's
wrong in this, then I rovert to that question of the question for the moment, the countercluim untimely and much regretted death bis own estimate of what he intended to allow lacks his ingenious legal argument devised by one transpires from the evidenes of the Director, he counterclaim, I mast now go back to that point. own defence of it. One thing however is deur of the cleverest lawyers at the Bar, Mr. Den jamin, in order to get the contractor out of that if he did not intend to make an allowance the diffonlt position in which he had placed the application of English law, and I put this in so far as the part which is not ab.ndoned is the architect's or engineer's plans a boing. of eontractor, although justified, does not relieve for the 360 involved by this chugs of the Or himself. However this may be, thero ecanis no-question to the assessor Is it the well-under- concerned is rightly conceived in principle, of any Liability which bo has allow it be wald be wrong.tw the quantities as supplied by the architect or
it whilst I was in anazce datum line, as would appear from Mr. doubt from subsequent cases that in English stood practice of things contractors to rely on beesuse the rescission of the contract by the For the most part-therefore I accept on the engineer ate bold to be no part of the contract. sufficient stability for the work they are him
Therefore if be bad boon Themas' refusal
comes the third point with regard to the sliding existence. assessor's advice, Mr. Blod's scheme of figures, Learned Judges have created the duty on the conteagad to perform His answer in Yes. There incurred. under
I put these questions liable in respect of any of the matters which I of any other With regard to the materials on the site: Itractorto ascertain the true quantities for himself.
I bave looked through many judgments, but I forward of the see-wall.
to the assessor Was this disaster due to bad have dealt with, or in respect Column A in Exhibit 27,
workmanship? Hin answer is. No. And the matters, prior to the ejectment from the works a practical one-What is accept Er. Thomas Bgures 1256, instead of the do not see in any one of them this consideration instead of 858 for bidding stones, for the reasons
to happen supposing more wary than the rest, works out the quan inherent defects in the design of the wall and its would, still remain liable, I must therefore given by Mr. Thomass.
in the affirmative, beanse in the assessor's opi complicated procons as there is a curious ship I think it may be
The defendants counterclaim for $26,879 tities for himself, finds them say, two million pierre perdue mound has already been answered go through the counterclaim. It is rabber
nien sufficient preesatinns were not planned in drafting. cubic yards wrong, as was the fact in one case, and tenders accordingly?
The answers make the mase of the sex-wait and $25,729 which sums are referred to in but that of some other contractor who had
identical with that of the rubble mounds, and paragraph 11 of the Statement of Defence, The second amount which was for the penalty assumed that his tenders would not be ses pad, by the engineer to ensure its stability. relied on the architect's quantities: lie would
the ste privciplex ayat be applicable. come to grief instead of the other man, and the
One or two o her cases were cited to which I of $75 a day for overtime, has been abandoned same action would be brought by another
master The San Pauio Railway Care is a as a necessary result of my judgment on the plaintiff and so ibro h, the whole lot of ten-
pscalar one: the points to be specially moved special ess dururs. The law worked out at home stoma,
about it are that the contractor undertook to with great respect to those who have elaborated Such is our law." But Jeasel unco said
ilogical and unpractical: but, as Sir George
circumstances which have been laid before turning to the contract, entered into in the
The oridence with regard to the filling in be hind the mound, as to the balging of the mound, and time required for repairing if, are not suf-, coat to enable the assessor to advics me whether the contractor was at fault in this reepiet
I have folt bound to put to the assessor this further question, as the contractor's negligence has been raised what in your opinion was the real canis of the slipping of the wall? His answer is--the design was suited to the work required, and there should either bare been dredging, or the pierre perdue should have been weighted.
RECITALS DAILY.
If you are interested, come to hear it.
Here again wo must look at hors's case but I do not think applies. For the con. which Lord Cairns doing precisely that tractor hare suing on a quantum meruit, is thought was a possible course open to the press any opinion. But again if I am wrong circumstances fit into that one at all. Muali plaintiff, and as to which he declined to ex-
emphasis was laid by the Lords on the in this interpretation, I do not think the possibility of the contractor himself, by his of the Cabitt plans, for the fullest information of the bitt plugin to testing the feasibility You will not be asked to purchase. as to materials, and construction ef caissons was given, and there was a clause in the special case that the dificulties of execu
But here there is of Lord Esbar. I wish too that the con- tion might have been discovered by the con- I content myself-with adopting this language tractor's own Engineer.
the
Hongkong, 6th March, 1908.
36
the number of men en ployed rn them. for action was brought by the contractor the value of the work which he had actually performed, on a guuatüm meruit. A szomons. was taken out by the defendant to enforce the arbitration clanne: it was resisted on the ground that the ical question in issue, being the in- saffleienes of the original design to withstand the force of the ses, Mr. Danby the author of the design would naturally be a prejudiced arbitraler, and therefors pafitted for the On the authority discharge of that duty. of several English cars. I held that Mr. Danby was not thereby unfitted to act as it had been agreed between the parties he should act. That Mr. Danby had left the Colony, and had put his sistant. Mr. Thomas in charge of the works, and it was Mr. Thomas who had ejected the plaintiff. It may seem to be a very technical point, and was referred to as auch
This brings me to the quùrium mernit: Jaring the argument of the ches; I am not at all sure of this but there was the fact, and there which means simply that work has toen done, was no petling way from it: Mr. Dunby has beau made use of, and has to be paid far.
The questions merely are has, the work bean had no right to delegate bis powers, and thero
done? What is the value of it? The principai "fore the otment by Mr. Thomay was a wrongfal ejectment, leaving the contractor to question affected by these questions is of course I may say that the figures lowed by the the sinkage, as to which these questions uciss: avail himself of any rights he had at law.
What those rights wore was the subject of a Was it 10 feet under the sea wall? What way of about 20 per cent. which in aquaratum meruit the principle ou an implied warranty that the point which I am not at all sura an Buglish tractor's offer to compromise had not beat.
it along the mounds? What amount of stone special care, srgood before mo last July, on
was patin? What price, if any, is to be paid which decided that the plaintiff was within
for it? bis rights in giving notice rescinding the con-
Mr. Turner's evidence is uncontradicted so tract, and that he was entitled to sue on a
armi, the form in which he had far as the sea wall is concerned, and it was origically brought his netien, renting the taken in the only way possible, by soundings Corel s gone ab initio, and that his right in the proximity of the toe of the mound was not limited to an action for damages for The assessor is of opinion, and I am entitled breach of contract, that is, for the loss of that it was feet foot at its greatest depili The amount under the mounds was agreed profil he would otherwise have made.
between Mr. Turner and Mr. Thomas. As to the amount of stene I have no diffoulty in accepting the books as evidence ander section of the Evidence Ordinance, they are regularly remarkable manner: they kept fu the course of business the figures are corroborated in a are probably true records, all other consider ations apart. I am therefore satistiot that 31,613 cubic yards of stone were actually used in sinkage and rubble mounds; whether it can all be claimed for remains to be seen.
The two discussions were, from the very nature of the depute, most rigorously con Land: and I come to the trial of the zetion My full of argumenta tending to prejudice my judgment: am beund to say there was almost as much prejudice against It is a very one side as against the other. great mistake, in my opinion, for the Judge who ba to try a case to hear the interlacu toiy arguments ch summonses and motions, more especially when they involve personal matters. But it was inevitable in this case: I have however tail the most able assistance from the nesestor chosen by the parties thems set, and he has Bainted me in my endearoar Lolanish previous impressions from my mind.
This much said by way of preliminary, I may Dow more freely deal with the case itself, which presents some curious facts, and interesting points of law. Very clearly, the first question which I have to decide concorns the design for the work was it defective? So far as the rabble mounds were concerned the evidence is irresist ible: they were at a wrong angle, being much too at ep their inclination being 1 to 1 instead
The corroborative figures are
41,433 Mr. Tamer's estimato for sinkage 10,754 pierre perdae. [According to Mr. Blood's evidence, which has been adopted, and allowing for the cor rection of datam kerel, but not for
the 10 feet error in line which must be considered separately,
16,932 rubble stones in mounds 75.41; leaving & quantity of 8,791 embic So # Ee accounted for yards of stone
A few points.
9765 stone broken up for concrete and also 796-hich seems to that one of the tenderers, question whether the diantar was due to end consequent rescission of the contract, he
-
not to do curtail works. He ander ok to do
scout of the allowance which must be made
-sugar bogs, or crates, filled with stones. The was originally for only $46,637 94 plas $20hould be paid for these things, and he fires it Court, I do not believe it falls with the by the Brazilian Government guarantee, and pierre perdue in the new contract, Thie
they were only faced with what is called Java theoretical evidence was supplemented by that to their condition spoke of Mr. Taraer who when he inspected them in January, 1907: and en the Belgian diver called to speak to an- other part of the work, could not get his thoughts sway from the fact, which had wridently mach impressed him, that the mound on the West was much too steep.
10 mems to a curicae that the design should
further claim
I
this
principle oven 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 in order to get all doubt at rest I put these well questions to the assessor-Is it a Colony which I bave elaborated above. ascertained practice in entering into there the tenderers to rely on the architect's or engineer's figures in the bill of quantities? contracts with Chinamen in Hongkong, for Ie it wellanderstood that the hill of
of quantities is intended to be an securate representation of the amount of material required His answer tot is Yes. The result would be that the
With regard to the plant on site, this can. be dealt with on a clear principle. The figures estimated by the arsessor for the quantum meruit ace on the same basis as if they were contained in a contract: that is to say they include the ully made by the contractor in earning his profit. Bot they would ultimately belong to the ohtractor, and the new contractor nard
There remains the claim of $20,87" which is them, and therefore he that is his
the defeudals, must pay for 1 players ኤ ከነ hire. But this involves teo fines calcula far as their amount is considered it
out by the time the work is completed, and all be claimed for, on the quantum meruit. tion, as many of the things will be ora
make the railway from terminus to terminus, and reduced (as we make out) to $13.231.41, ou
amount is arrived at by charging the of 14 to 1, and instead of being properly faced, at the prica to be fired by the Bor
The assessor has suggested that a lump sam I allowed an amendment of the claim, which therefore the present sale wust be paid for
for £200,000, the amount which had been fixed in respect of the new slops to be given to the
ith the increased coat with the company was formed on the express læsis
the
hus defendant Company At $2510, irrespective of the overseer's house
that guarantee, and so was the contract. The contractor end interest by adding
agree to. So far as this house in practically in respect of the sinkage which.
which T
made to pay more becanes the architect who had saddled by the new contract which they say they question was whether the Company should be which Hut
mide a mistake of 2 million cabio yards in bis, were obliged to enter into in consequence of the would bring the claim abore the amount of
tioned in the tender for the house as $4000 claimed on the writ. A very la concerned, $2,500 was the sum originally mon-
quantities bad said that the extra cost should be plaintiff's failure to perform the old contract. paid. The Court of Chancery held that the But paragraph 11 of the Statement of Defence gitate point was made by the defondante în
was clearly done in order to bring the total connexion with the delay in making this claim, contract plan. The striking it out of the tender and it was strongly argued that it was an
The Best is the negligence referred to in para- Bay up to the limit given by down nearly to $149,0, and therefore that must
Company was not bound by this vague premise retera to two independent acts of alleged negli-
afterth: aglit.
be the basis of the valuation. I accept however
was not held liable for additional work because the claim on the writ the amendment was a pro-
hie arobitect had in the course of conversation graph 3, that he had deliberately neglected to have Lecti persisted in after the warnings of por one to ask for though it naturally made Mr. Lomas' statement that, as built, it was not
any more than in Enrivener z. Pask, the employer genes which are not linked.
us scrutinise the stone books with additional up to the plau; and in the circumstances in the Public Words Department, Mr Chatham,
inaccurate quantities. Hoftim's Case bears on the same witli reasonable expedition," after dus given his builder whom he had to engage some put suficient men on the work so as to spunto Dare. I must now deal with the arguments in which it was built this is more than probable.
The assessor allows $1:00 on this item. If
another branch of the claim-the alakage. The warning from Mr. Thomas that the ejectment the Director's erideres being also clear theore
which were put forward on the other side. tically that the slope of the mounde, as well as
the specification provided had to go by the contract, I should put upon
Contractor there was negligent enough not to would be the result of that negligence." It Clause GO of
make as examination of the soil in which he had does not follow that because the ejectment was the-facing of thein, were bad. I am bound
contracter could see for exirs materials and
undertaken to construota drain. Being spongy bad that therefore there was no negligence as however to point out that the action taken by that ne payment will be made to the con- clause 10 of the Specification, a constructiva
work for the excess. And this is justified by
it turned out impracticable at anything ap specified if that is proved. The assessor is of I fura now to another branch of the subject, fr. Danby's own estimate of what he proposed the Department was insufficient. Without extract or for sinkege, and he will have to satisfy which would result all through this claim in
proaching his contract prices. That was aleatly opinion, and I ate estisfied, that there were not pressing any difizite opinion. I will content himself unto the amount which is likely to the same figures.
bis own fault. This case is important in view suffoient men on the work as alleged. myself with saying that in the circumstances it take place, no allowance will be made him for
I have a doubt on the question sppears to me doubting whether the idea of anything below the present ground line. A number of English decisions were referred to, to allow the contractor for the orror it the pierre whether they are applicable, I shall deal with estimate of quantities for the rubble mounds, ultimately refusing the lease could have been And the estimated quantities on which the and, although
I have held the other cases inapplicable, so and Mr. Thomus on rights which they did not carried cat. The only and proper course which tenders were made had this item
which has been devoted to their consideration (Column of Exhibit 27) The English of English law in this Colony. As clearly as and the arbitrary insistence by the Enginear The damages would therefore be nominal. seems to me to have been open was for the perdue fexclative of sinkage) for ses Wall them as exhaustively as possible, so that the lime which was far in excess of that estimate of what I have already said about the application was an abundant excuse in the catastrophor 11 of the Defence goes on to Department then end there to have applied 1 16 815 cubio yards".
rubble cands, which I have already dealt with: Chinese contractor being told, or even without
paragraph The defendant's contention was-that-se there may be turned to the profitable are of serving case bear on three different parts of this to the Court for assistance to compel the work
And if the to be carried out in accordance with plans was to be ao allowance for sinkage, the prices a guide to contractors and others in the dispute. First, the error of quantities for the clearly should I hold this case applicable. The possess
repair these mounds which were practically must do eo at his own risk. mocat price for pierre perdue alone, and there future. All the questions with which I have to
I think it cannot fail to have struck oven the destroyed by the typhoon in September 1906 action has been on the contract he could to in paragraph S, zot repairing the damage thirdly, the liability of the contractor-to set up not bave recovered anything specially caused by the typhoon. But this I have found not touch the sea wall for the slope other words that the defendants were to get it counterclaim.
the sea wall after its sliding forward. 1 take for sinkage, but only for the pierre perdeel not to have been the contractor's duty; nod view of what Lord Cairns said in Thorne's case, of the pierre perdus was at the proper for nothing under the contract, and therefore
The they were to get it for nothing under the learned Counsel who relied on these cases, how very inapplicable many of them deemed to be, on and cfcetive angle of 1 to
repair the rabbie mounds after they had fact allowed for sinkage.
The last case I should refer to is one which as to the possible alternatives which the con the face of them to Chinese contractore. Now the second point Was the contractor liable to at his contract price; $1.70, in which he has therefore there was no negligents. And in
heap knocked to pieces by the typhoon?
was not sited-Bush Whitehaven Trustees tractor might have adopted, one of which was pierre perdue was faultly constructed. A con-
(Hudson II 121) where a general principle to decline to go on with this part of the work, siderable amount of eyidence was given on thie is to take the risk of sinkage, to estimate of course English decisions must be followed
for himself, and charge accordingly this Court if they are applicable to the circum-
is laid
down which, if it were necessary to apply I am not prepared to hold that the contractor. point. It was said that the slope had not been it
unt to be more then stances which come before it. But a great part The Breckncer and Abergevenny Canal Case properly cheerved; the contractor's diveze not and if there- turns
"Where the circumstances contemplated by a quantum meruit afterwards. This ground of shaving done their work of filling in cavities he estimated that is his on lookout, be of elaborate superstructure of signment which was relied on. There was in that ease a covenant for seven years, which clearly means after com- and af trimming properly good many will have no allowance for it. The fact that those cases are reared on the building contract to build a bridge in a substantial manner, and
to make the special ocnditions of the contract in respect of the non-repair of the sea-wall. sectional plans in the progress plans were put $1.50 was charged in the first tender satisfies depends on what is common knowledge or com- special covenant to uphold and keep it in repair it seems specially applicable to this case was bound to go du with the work and olnim o
extraordinary food, and Lord Kenyon held
I award the nominal damages of $10 to-the in gridence shewing that the slope was not very the assessor that sinkage was allowed for at mon understanding among contracters and air plation. The bridge was broken down by a building contract for works are so changed a negligence therefore falls. No olaim is made
that the contractor was liable to re-build under
trast at an ead, and recover upon a quantum defendant on the counterclaim, but in view of truly observed, in some places being above, and first; and that $1.70 was subsequently charged employers in England. To take a recent case for shows that it was much more than was first decided in the Court of Appeal in 1902, ke in others bolow the trne line. Evidence was
ment depends either op well ascertained practice also given to show that the contractors never imagined, and as this figure was soospted, the Ford and Benroee's Arbitration, the whole judg his contract, because this sort of loss was in ioapplicable, the contractor may treat tho con-
had not been far-seeing enough that was all the designs was made apparent by the typhoon unwarranted claims, without costs. Deducting properly superintended the divers by conducting reason must have been known to both parties: soundings themselves. And this was rapple- though perhaps each kept his own counsel. The and some other fnot which is also well-ander contemplation of all parties. The contractor teruit" I think when the defective nature of the circumstances, specially the insistence on
it out, the extraordinary flood was the osuse of mented by the evidence of the diver, who story of the Boundings attempted but not made stood. Are those things equall well ascertained There was no defect is plan or in the carrying that the original conditions of the contract be- this amount, Judgment will therefore be for Sarpected on 13th December, 1906, and who on the rough day, with Mr. Lambert, and the and understood among the Jhinese and the
right, or fair, or just to hold that the original locutory proceedings. This amenat includes described what I may call the language (f imaginary, feet, is probably one of those nos Europeans in this Colony? It by no means the disaster, and in Jackson, Rustbourne are inapplicable, to adopt Lord Esbar's the plaintiff for $51,027.12, with all costs, other startling a doctrine, but I have had this question Local Board where there was contract to language, the conditions of things had been so than the defendants of the counterclaim, old- Jules Verne, the chasms, almost, caverne, where which grow round facts, when the brain haw Losa follows. I am anxious not to lay down too s divar fully scountered could walk at ease, long worried with a law suit.
ference with the work while in progress by the circumstanows." With regard to this sotion for agreed interest. He knew Chicese methods so well that he the contract for 16,811 cubic yards of $1.70 in this Court. Is the whole of the elaborate and not the employer takes the risks of inter contract was made with regard to those 22000 for return of security money, and 9600 which existed in the lower half of the slope. The result is this Justead of paying under present in my mind ever since I have presided build a sen-wall, it was held that the contractor Greatly altered that it was not reasonable, oring those which have been reserved in the inter- insisted that the upper half, where it could be without regard to the amount of sinkage, the case-law of England applicable to the circumstion of the wind and waves, because these are
and the law
Then
There
The question of defective design does fore no claim could be made in respect of it. Iz deal may be referred to as arising under the secondly, the liability of the contractor to being told, to find out sinkage. for hingeet up another case of negligence, not referred
1.
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contention of the defendant was that the quantum meruit,
But the meaning is plain: The contractor