1928-09-27 — Page 4

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THE HONG KONG DAILY PRESS, THURSDAY, SEPTEMBER 27th, 1928.

THE IMPORTANCE OF A LABOUR

CONTRACT.

MR. JUSTICE JACKS' VIEWS.

HOW AND WHEN TO PAY LABOUR CONTRACTORS,

Mr. Justice P. Jacks, in the course of a judgment delivered at the Summary Court, yesterday, made some interesting comments on the practice of building contracters making a sub-contract with a labour contractor. He said, “A contract for the supply of labour seems pre-eminently one in which reasonable payments should be made from time to time. It is very different. from a building contract. A labour contractor has to pay his men daily or almost daily if he is to keep them satisfied and at work. They expect to be paid-in fall for work done irrespective of the progress of the work. He gets no long credits on building material and the like, such as a building contractor could get."

His Lordship went on to say, "I would add that in contracts "of this kind it is most important that, there should be some memorandum in writing atasing the terms agreed on as clearly as possible, the more so in view of the fact that labour contractora are not usually, men of substance and liberal education."

These comments were made by his Honour in his judgment in a case in which Tsang Shing Kee, a labour contractor, sued the The Wing On Lung firm, for 8861.19, being balance due on verbal contract to supply masons for the masonry work in con- nection with the erection of six dwelling houses on Inland Lot No. 694, situate in Western Street:

Mr. A. el Arculli appeared for, the plaintiff, and the defendant Arm was represented by Mr. M. E. Lo.

THE JUDGMENT..

Who was in the wrong the plain- tiffs or the defendanta? Turning The judgment reads as follows: to the agreement which they made, This is an action in which the I find that it is verbal, unless the plaintiff who is a labour contractor memoranda made in the backs of seeks to recover from the defendant the respective parties can be re- who is a building-contractor thrgarded as a. written contract, but sue of $361.15 being the balance these memoranda. contain nothing due on a verbal agreement to supply beyond a statement of the price masons for the masonry work in agreed on which is not disputed. connection with the erection of six The defendants have endeavoured dwelling Houses on Inland Lot No. to incorporate the terms of their 09: situate in Western Strees, contract, with the building owner, Victoria.

and the specification, in their agree- ment with the plaintiff on the ground that these were shown to him before he delivered his tender.

The defendant claims damages for breach of the agreement which they have limited to $1,000 in order to bring their counter-claim withinHe stoutly denied "this and said ́

the jurisdiction of this Court.

The Facts Outlined.

3.

The facts are as follows: The de- fendarit entered into. contract with the building owners on March 2nd, 1927 to construct six houses on

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that he only saw the plan from which alone he made his calcula tions. Much of what is contained in the defendants' contract with the building owners and the specifien- tion would not concern the plaintif Inland Lot No. 694 in accordance at all, other parts might or might with a plan and specification, the not apply to him, and even those date for the completion of the portions which might apply, ought houses being November 30th, 1927. not, I think, to be applied unless Some four or five months later the specifically mentioned. On the whole defendants entered into an agreeam of opinion that, in the absence ment with the plaintiff, under of express agreement, no part of which the plaintif agreed to supply the defendants building contraes

abour for all the masonry work and specification applies to their.. on the six houses for the sum of agreement with the plaintiff to sup $3,400.

ply masons for the work which it The date of this agrement is. dis- contract of a different nature. puted, but the defendants' manager

We are accordingly left with "ne admitted that the plaintiff's ment

express provisions, with regard to could not commence work unti: (a) time within which the work was October 7th, as the defendants had to be completed; (b) how and when not laid the concrete before then, the plaintiff whs to be paid, and At this date, seven months of the (c) the method in which any dispute defendants' contract time for build. between the parties was to be ing the houses had elapsed and less settled or who was to decide when the work had been satisfactorily. than two months remained. Dur completed so far as the plant ing the ensuing five inqnths that was concerned. is until March 7th, the work appar

The Time Limit.

R.A. OFFICER SUMMONED. eatly proceeded smoothly. The With regard to the time limit the plaintiff said he had, no complaint agreed to any. He refused to be

the Post Office Authorities for send- plaintiff has denied that he ever

The first case to be instituted by as regards payments and the de bound by any but he could not be fendants said they were satisfied allowed to take such time as he

a breach of their agreement: with ing of coins in lettera since an an- with the progress of the work up pleased. It is obvious he could not mand of the plaintiff's in a liberal the plaintiff by refusing to pay himnouncement was made recently in to that date.

complete by November 30th, and there is no evidence that any othering no more than 70 per cent, and done. There may; of course, have was an offence was heard yesterday inanner instead of insisting on pay reasonable amount for the work the Press pointing out that this date was communicated to him.

We can only fall back on what by holding out in the way they did. been. difficulties such as local cus-morning by the Kowloon Magis- was a reasonable time. fendant, have admitted that the

The de consider the defendants are tom, rules of guilds and the like, trate, Mr. W. Schofield, when plaintiff could not commence work responsible for all that followed. but no evidence with regard to Capt. O. F. Browne, of the Royal until October 7th. Mr. Hall an No evidence of custom or rules of these has been placed before me and Artillery was summoned for en- architect of some years' experience, any guild, has been put before me. has stated that six months would be

in the absence of such evidence my view is that it was a small matter which should have been settled amicably in a few days.

It would appear that on March- In my opinion the remedy, lay.SENDING - COINS BY POST. 7th," the work was so near comple-with the defendants. If would tion that the plaintiff considered have been better for them to have that he was entitled to considerably paid the plaintiff every cent he

more than 70 per cent of the con- claimed rather than allow the. tract price. He could not get it penalty, clause in their contract and refused to go on. Very little with the building owner · to^ come and I consider that the defendants find that the defendants committed was involved, not more than 2330, into operation. On the evidence I should have met any reasonable de-

What happened on or about that date The plaintiff's men ceased work and although he appears to have had men there until late in April, he himself said that he visited the site every day from March 7th, to April 23rd, and saw no work going on. The evidence of the defendants' witnesses confirms this. The defendants eventually got ample time. I agree that this is It has been held that knowledge of another contractor to finish the reasonable and am of opinion that the terms of the principal contract work, and now counterclaim for the in the absence of agreement the is not sufficient to prove that a expense incurred thereby, damages plaintiff should have finished his sub-contractor agreed with the prin- for breach of contract and the cost work on or before April 7th. of protecting the men employed to finish the work.

t>

Judgment For Plainting

C.P.O. INSTITUTES FIRST ACTION.

closing coins in a letter sent to Cal- cutta, on September 17th!

Capt. Browne admitted: the charge saying that he was respon.. sible for everything that took place In conclusión I would; add that in his Battery office. He, however, in contracts of this kind it is most did not know that coins were en- important that there should be some closed in the letter until he receiv memorandum in writing stating the ed the summons. He further ex- terms agreed on as clearly as pos- plained that he had occasion to

With regard to the second point cipal contractor to be bound by the an to how payment was to be made. terms of the principal contract. The Cans Of The Dispute? This usually varies according to the Thus, if the sub-contractor properly What was the real cause of the terms of the contract, but the con- dispute which arest between the tract here made no provision for completes his part of the work his parties on March 77 Neither payment. It has been laid down right to payment will not depend eide contend that it was a question that where the contract does not on the certificate of the architect, sible, the more so in view of the send a small sum to Calcatta, and of whether the work was finished dent to payment there may be an notwithstanding that it is a con- fact that labour contractors are not

make completion, & condition prece- or not. It resolves itself into this, implied stipulation on the part of dition precedent to payment to usually men I think. The work was practically the employer to pay from time to finished Mr. Hall confirms this, and time a reasonable sum to the con- Hoare, 1881, 444 LAT. 66). It has kind it is not desirable, to endeavour of substance and the principal contractor (Lewis .liberal educatión. In cases of this the defendants' bill for completing the work left undone by plaintiff actor during the progress of the also been held that a-clause in the did not amount to more than $330,

work (The Tergests, 1903, P.29). principal contract referring to dis and this is probaby more than it

The Supply: 01.Labour. putes between the employer and the would have cost had the plaintiff A contract for the supply of contractor to arbitration will not be continued. The plaintiff said that lahour seems pre-eminently one in

incorporated impliedly so as to He was satisfied with what he was which reasonable payments should

refer disputes between the contractor paid up to that dafe, but I find be made from time to time. It is and the sub-contractor to arbitra that his own accounts shew that ne very different from a building con-

tion: (Goodwin v. Brand). received more during the five weeks traet. A labour contractor has to It is unfortunata that the parties which preceded that date, and yet pay his men daily or almost daily could not settle their dispute forth he was not satisfied. He apparent if he is to keep them satisfied and both parties were men with 20 years" gear the completion of his con- in letters, but it would be safex for with It was a small matter and ly did no more work until his men at work. They expect to be paid were driven off the site on April in full for, work dane irrespective experience. The defendats had a rd No evidence has been given of the progress of the work. The heavy penalty clause in their con- as to what payment the plaintiff plaintiff was paying away cash in tract with the building owners asked for on March 7th but it wages all the time. He got no long which wa as running against them Brems clear that the defendants re-credits on building material and while they unsuccessfully haggled fused to pay him more than 70 per the like, such as a building con-

over a trivial matter with the plain- cent., so he ceased work.

tractor could get.

tiff for five or six weeka,

Sergeant for remission to India. he-handed the money to bis Páy-

Mr. T. M. Perpetuo, Assistant He signed the letter but omitted to tell the sergeant to get money order. to incorporate the principal con- Buperintendent of Mails told his tract in a general way as so much Worship that the sending of coins of it does not concern's sub-contrac

int letters afforded temptation to sorters and other employees of the tor for labour. The particular i Post Office. The prosecution, Mr. clauses which it is intended to Perpetuo said, was not pressing the supply should be either specially case. referred to or better still actually | "In answer to the Court, Mr. Pér- incorporated in the sub-contract. petuo said that there was no objec- I do not believe the plaintiff was tion to paper money being enclosed the sender to purchase a money. order.

tract as he claimed to be and I do not feel that I can give judgment for the full amount he seeks to recover.

1 give judgment for the plaintiff. on both the claim (for 800) and counterclaim with coats.

The Magistrate said that a cau- tion would meet the case-and-re-- marked that it was inadvisable. from all points of view to send coins by post.