The-Hong-Kong-Weekly-Press-1899-09-09 — Page 5

September 9, 1899.)

CHINA OVERLAND TRADE REPORT.

was a contractor who had seen the work and i tendered to complete it for $10,750. In words the man agreed no doubt with Mr. Orange, that 80 per cent. of the work had been done, but, in fact, his testimony negatived the de- fendants' case, and proved the plaintiff's, for he said that in his tender he had to allow $5,000 for materials, $4,500 for unpaid sub-contractors and labour to complete, and the balance was his profit. After allowing a handsome deduction for the sub-contractors, they would see that materials and labour came to $7,225-in other words, to 36, or say 35 per cent of the contract prices, $19,500; consequently 65 per cent, or $12,675, represented the work done by the original contractor. Of this sum of $12,675 the architect ought only to have certified for 80 per cent., or 81C,140, and the difference between $10.14 and $13,800, the amount he actually certified for, was Mr. Beli lios's loss. Continuing, conusel said that Mr. Turner estimated that the buildings could be completed for $2,330, but of five or six tenders the lowest was 810,750. Let the jury try to realize what remained to be done and supplied to these 13 houses. Counsel made a long enn- meration, concluding by saying that in short there were $5,000 worth of materials and $2,000 odd of labour at the least. Finally, he remarked the job took four months to complete. He claimed their verdict on plain grounds of common sense: they would have to assess the damages.

negligent stowage the defendant would be liable for the oil lost. It was incumbent upon the de- fendant to prove that the cases were properly stowed, and he submitted that unless the defen- dant succeeded in proving that the insufficiently packed, that the sea, was more. cases were, than ordinarily rough, and that the cases were not improperly stowed the plaintiffs. would be entitled to judgment, He should prove on the arrival of the Harlan in Hongkong. foki from the plaintiffs' shop went on board but was told that the oil could not be delivered, then. He accordingly went on board again the following day. He found the cargo very tightly packed, and where this oil was stowed. the cargo was as closely stowed as it could be, and be actually found on the top of these tins of oil,, which would appear to have been stewed some three or four tiers high,, a num. ber of tube filled with indigo. As the result certain of the tins of aniseed oil were found crushed and the oil had run out. It would ap pear that the plaintiffs in this suit were not the only sufferers; other people who had oil consigned, to them on board this ship also had their tins. crushed and lost some of their oil. Besides in- digo, it would also appear that there were some hides on the top of the cases, though he did not think the hides would have any effect on the leakage. The leakage was caused by the tubs on the top of the cases.

ably since the date of the contract. Accord ingly this explained the letter sent to Mr. Belilios by Mr. Turner, in which the latter described the blowing down of the wall as the last straw, the offer straws being the increased price of building materials. These increased prios had made the contract, which at the beginning would only have given a slight profit, impossible for the contractor to carry out, and the fall of the wall completed the contractor's ruin, and the result was that the contractor bolted. Although the amount of damage done by the blowing down of this wall had never been accurately estimated, roughly speaking the amount of brick work which required to be replaced was certainly somewhere between 7,000 and 8,00 cubic feet, and this was not a light matter. Now tenders were obtained to com- plete the work and the lowest of these was 311,700, subsequently reduced to $11,250. This was about $5,000 more than Mr. Belilios would have had to pay on the old tender. The total cost to Mr. Belilios of these buildings had been the $14,000 paid to the old contractor and the 311,250, paid to the new contractor. That made $25,250, and they had heard from the expert evidence that even at that price the buildings were worth it; and still Mr Belilios turned round and said to the architects, "you have been so negligent that you ought to pry me $6,800," although he at the outside would only have to pay $5,500 more. Mr. Turner was charged with performing his duties as an ar- His Lordship, in his summing up. referred ohitect, as a valuator, in this case with neglig three questions for the consideration of the ence, without that degree of skill and care jury: -(1) Did the defendants certify for larger which would reasonably be expected of an ar- amounts than they ought to have certified for, cbifent in this Colony. There was no charge having regard to the contract? (2) If they against Mr. Iurner's probity, nor against his did over-certify, was the amount in excess or aprightness; there was no charge of frand. It the circumstances such as to show negligence, was simply a charge against his skill. The i.c., want of the exercise of reasonable skill and Replying to His Lordship, witness said before plaintiff had to prove that Mr. Turner was an care and diligence on the part of the architects? this accident all the tins arrived in good con unskilful and inaccurate architect. There was (3) If you answer the se ond question in thedition, except that sometimes there would be. no charge of improper supervision of the build-affirmative, what damages do you award to the small leakage in one or two tins, in which case ings. What the jury were asked to consider plaintiff ?

he made no claim. The oil came from Pakhoi was if Mr. Turner had over-certified according The jury retired to consider their verdict, before. to the spec tions? What was the evidence and on their geturn, the foreman, Mr. Heem- to support this charge of improper certi.skerk, in answer to Mr. Jones, the clerk, gave fying Mr. Belilios and Mr. Ho Tung the following an wer to the first question- had only given general statemeu.s. Mr. Yes, but to an insignificant extent. In reply Harker's evidence had no reference to build- to the second question, the reply was unanim- ings of the character erected for Mr. Beli-ously, No. lios. As to Mr. Danby's evidence, he had given a rough estimate upon which the claim was founded. But under cross-examination be gave detailed prices. These figure were given to Mr. Orange who worked out the quantities and the total sum amounted to almost the same figutes as those given by Mr. Turner and Mr. Orange. When Mr. Danby was driven down to items his estimate supported Mr. Turner to all intents and purposes. The question practical- ly resolved itself to this--Would the jury accept Mr. Danby's evidence when he was generalising and supported by other witnesses who generalising, or would the take. Mr. Danby's evidence when he gave evidence in detail and supported by Messrs Turner and Orange? He asked for a verdict for the defendants.

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Mr. Robinson, addressing the jury for the plaintiff, sabiuitted that the evidence of the experts was so conflicting ou almost every item of price that useful inferences became impos. sible for want of common data, and they had to rely on the information afforded by witnesses who though without technical qualifications possessed common sense and experience. The problem was to find out what proportion of the job the original contractor had put through before he disappeared. Mr. Harker, working out every item according to the P.W.D. sche dule of prices, had ascertained that, according to that scale, the value of the "work done $20,000. But Mr. Slade had asserted truly that the valnes in the P.W.D schedule were for work of an altogether superior class. What then was the inference when it was found in reference to the work done that the values given by the experts for the defence exceeded the values given in the schedule. Of the estimates of the practical vitnesses of the work done, that most favour able to the defence was Mr. Ho Tung's 65 per sent - Mr. Họ l'nug was a chance witness, a disinterestel witness, and a thoroughly experi- enced witness. He thought he could show out

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of the month of the defence as well as from the probabilities of the case that Mr. Ho Tung's shot" was almost_absolutely correct. Thus only pesstiosi witness villal by the defense

His Lordship said the result of the finding was a verdict for the defendants, with costs.

September 4th.

IN ORIGINAL JURISDICTION,

BEFORE THE HON. V. MEIGH Goodman (ACTING CHIEF Justice).

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THE ON FAT WING TIRM V. A. E. MARTY.

This was a claim against Mr. A. R. Marty, merchant and shipper carrying on business in Polder Street, Hongkong, by the On Fat Wing firm, whose place of business is at 15, Bonham Strand, for damages for non-delivery of, ten tins of aniseed oil, valued at $1, 700 alleged to live been destroyed through the negligence servants,

The Hou. H. E. Pollook (Aoting Attorney. General), instructed by Messrs. Wilkinson and Grist, a peared for the plaintiffs; and Mr. M. W Slade, iustructed by Messrs. Deacon and Hastings, for the defendant.

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It appeared from the petition, which was filed on December 23rd, 1897, and which was read by Mr. Pollock, that on or about October 11th, 1897, one Kwong Hop shipped on board the defendant's steamship Huilan at Pakhoi, to be carried to Hongkong and there safely delivered to the plaintiffs, 45 tins of aniseed oil. On the arrival of the steamer in Hong- kong the plaintiffs alleged that the de fendant failed to deliver the oil, although the plaintiffs had paid the freight for the same. The defendant in his answer alleged that the oil was insufficiently packed, and that the tins containing the oil were made of inferior material. The defendant further alleged that on the 4th and 5th October the steamer en countered a strong, gale while on her way to Hongkong, and that if any of the oil was lost or damaged which was not admitted it was due to insufficient packing and perils of the sea. Mr, Pollock submitted that if his lordship wassatisfied that the goods were damaged through

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The master of the On Fat Wing shop deposed to going on board the Hailan and taking away 35 of the tins. The other ten were damaged, and he sent in a claim to the defendant in res- pect of them. At that time the price of the oil was $170 a tin.

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In answer to Mr. Slade, witness said the price now was $130) a tin.

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Koo A Tim, who is employed by the On Fat Wing firm, gave evidence as to going on board the Hailan to take delivery of the oil on the. 18th October, 1897, and again the following day, when he saw between 20 and 30 tubs of indigo over the oil. He took delivery of 35 tins, the rest being damaged. Some of the damaged. tins were pressed down; some were quite empty; others very little. There were other tins be- longing to other people damaged. He had to remove the hides and indigo which were on the oil before he could take delivery of the latter. The indigo tubs weighed about 90 catties.

Captain. G C Anderson, marine sürveyor, deposed to surveying in October, 1897, 31 tins of aniseed oil which had been brought to Hong. kong by the Hailan, l'hey were more or less damaged. The contents were short. The tins were all of the same make. They were made of soft pewter, something like the one produced in court. He considered that the tins were not, strong enough to have other cargo on the top

This was the last witness for the plaintiffs. Mr. Slade then opened the case for the defence. He contended that the oil was stowed away all right, but that the damage was caused by an extra bad typhoon and also by the tins which contained the oil being exceptionally weak,

Captain F. D. Goddard, marine surveyor, said he was formerly captain of a Douglas steamer for 14 years and an officer for nine years pre- viously. He remembered going on board the Hailun in October, 1897. He went on two fol- lowing days the first time a few hours after the Hailan's arrived. He saw some tins of aniseed oil in the after tween decks. They werestowed right across the ship two tiers in height. The fore- hold was full of indigo, he thought. There something just abaft the aniseed. There nothing on top of the aniseed. There' about six rows fore and aft. Some of the tin had shifted. He saw five or six collapsed and broken. The aniseed bad not shifted fore and aft. The cargo aft had not shifted on top of it. The ship was three feet by the stern. Two of of were safe; four tiers were not. He leated saying at the time that the oil sumoiently packed. The pewter tins shoul packed in craiescende att

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In reply to Mr. Pollock, witness said the time he surveyed he did not kno

to be any claim in ros