March 30, 1908.]
CHINA OVERLAND TRADE REPORT.
avail himself of any rights he had at law.
8724* on a
his fingers how many cash there were-wholber | wrongful ejectment, leaving the contractor to one, two, three or iour and they were to bet accordingly. The third defendant What those rights wore was the subject of a having entered the house, the game was com- special case, argued before me last July, on menced. Accordingly the first and second which I decided that the plaintiff was within defendants won the first few games, but then his rights in giving notice rescinding the cou- the third defendant staked $10,000 and won. tract, and that he was entitled to Complainant declares that a previous arrange-quantum meru-f, the form in which he had ment must have been made between the originally brought his action, treating the three defendants. He expected the winning. contract as gone ab initio; and that his right number on this occasion to have been was not limited to an action for damages for two, but one of the defendants must have breach of contract, that is, for the loss of inserted another cash without his knowledge profit he would otherwise have made. БО that the winning number Was three. on which the third defendant bad staked 80 heavily No. 3 demanded $30,000 the amount of his winnings from complainant, and took the $500 which the latter had that morning paid in and also induced him to sign a document which complainant could not read. After that nothing more was said about the formation of the company, and complainant board nothing further about his $500.
Evidence was then called and the case adjourned.
Friday, 27th March.
IN ORIGINAL JURISDICTION.
BEFORE THE CHIEF JUSTICE (SIR FRANCIS PIGGOTT,) AND MR. J. ORANGE AS ASSESSOR
CLAIM AGAINST THE STANDARD OIL COMPANY.
The full text of the judgment delivered in the action in which Lau Cheung Wood and Lam Choy, contractors, claimed for $70,000 from the Standard Oil (ompany for work done and
defendants' materials supplied at the premises at La chikok is as under. Mr. M. Slade, instructed by Mr. Hastings, of Messrs. Hastings and Hastings, appeared for the plaintiff and the Hon. Mr. H. E. Pollock, K,C., instructed by Mr. Atkinson, from the office of Messrs. Deacon, Looker and Deacon. appeared for the defen- dants.
LAU YEONG WOOD V. STANDARD OIL, CO,
This action bas been before me on two previous occasions; and it is material for me briefly to refer to my former decisions in order to make the present proceedings clear. A contract was entered into 3rd April, 1905, after tenders had been called for, between the defendant Co. and | the plaintiff, whereby he undertook to construct certain reclamation works for the Co. at Lai Chi Kok, which included a sea wall, two rubble mounds, one on either side, and the necessary filling in behind.
'The contract was in the usual form, and contained upwards of G clauses: among them the usual arbitration clause referring disputes arising thereunder to the Engineer of the works, the late Mr. Danby.
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Those two discussions were, from the vory nature of the dispute, most vigorously con- tested; and I come to the trial of the action with my mind full of arguments tonding to prejudice my judgment: I am bound to say there was almost as much prejudice against one side as against the other. It is a very great mistake, in my opinion, for the Judge who has to try a case to hear the interlocu tory arguments on summonses aud motions, more especially when they involve personal matters: But it was inevitable in this case, I have howerer Lad the most ablo assistance from the assessor chosen by the parties them- selves, and he has assisted me in my endeavour to banish previous impressions from my mind. I This much said by way of preliminary, I may now more freely deal with the case itself, which presents some curious facts, and interosting points of law. Very clearly, the first question which I have to decide concerns the design for the work - was it defective? So far as the rubble! mounds were concerned the evidence is irresist- | ible: they were at a wrong augle, being much too steep their inclination being 1 to 13 instead of 1 to 1; aud instead of being properly fac l they were only faced with what is called Java sugar bags, or crates, filled with stones.
The theoretical evidence was supplemented by that of Mr. Turner who spoke to their condition when he inspected them in January, 1987 · and even the Belgian diver called to speak to an. other part of the work, could not get his thoughts away from the fact. which had evidently much impressed him, that the mound on the West was much too steep.
It seems to me curious that the design should have been persisted in after the warnings of the Public Words Department, Mr. Chatham, the Director's evidence being also clear theore- fically that the slope of the mounds, as well as the facing of them, were bad. I am bund however to point out that the action taken by the Department was insufficient. Without ex- pressing any defiuite opinion. I will content myself with saying that in the circumstances it appears to me doubtful whether the idea of ultimately refusing the lease could have been carried out. The only and proper course which seems to me to have been open was for the Department then and there to bare applied to the Court for assistance to compel the work to be carried out in accordance with plans and the law.
Three incidents in the course of the events leading up to this action 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 considèr- The question of defective design does able part of the sea wall slid forward on 15th not touch the
wall, sea
for the slope December 1946, and subsequently on 20th of the porci perdue was at the proper January 1907, the contractor was ejected from I and effectiv angle of 1. {;} 1. The was that the the works, for an alleged failure to comply with contention of the defendant the orders given by the Engineer in regard to : pierre perdue was faultily constructed. A con- the number of men employed on them. Au | siderable amount of evidence was given on this action was brought by the contractor for point. It was said that the slope had not been the value of the work which he had actually properly observed; the contractor's divers not performed, on a quantum meruit. A summons haring done their work of filing in cavities was taken out by the defendant to enforce the and of trimming properly A good many arbitration clause; it was resisted on the ground sectional plans in the progress plans were put that the real question in issue being the in- in evidence showing that the slopes was not very sufficiency of the original design to withstand truly observed, in some places being ahove, and Evidence was the force of the sea, Mr. Danby the author of in others below the true line. the design would naturally be a prejudiced also given to show that the contractors never arbitrator, and therefore unfitted for the properly superintended the divers by conducting discharge of that duty. On the authority sourdings themselves. And this was supple. of several English cases I held that Mr. Danby mented by the aridence of the diver, who was not thereby unfitted to act as it had been inspectel on 1th December, 14, and who agreed between the parties he should act. But described in what I may call the language of Mr. Danby had left the Colony, and bad put, Jules Verne, the chasms, almost caverns, where his assistant Mr. Thomas、in charge of the a diver fully accoutered could walk al else, works, and it was Mr. Thomas who had ejected which existed in the lower half of the slope.
to be a very
well that hot He knew chinese methods the plaintiff. It may seem technical point, and was referred to as such insisted that the upper balf, where it could be during the argument of the case: I am not at easily inspected, was quite well done Hut what all sure of this but there was the fact, and there bad happened was that a considerable portion. was no getting away from it : Mr. Danby of the wall 4 feet, had shipped forwards and had no right to delegate bis powers, and there. I downwards-17 feet out, and feet down there fore the ejectment by Mr. Thomas was a were crucks in the wall, but it was not bruken
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upi it had not in fact collapsed. Mr. Thomas very frankly admitted that if the pierre perdue had been as described by this witness, a collapse would have been the result, and not a sliding forward and with regard to his own evidence bo also candidly said that there was no part of it which he cunld connect 81 the canso, with this sliding forward. The inferenco is obvious that there has been much exaggeration as to the bad work; and that however much the true line may have been deviated from in the dumping of the stones, this did not contribute to the sliding forward of the wall. It is curious that the worst of the sections - 17-on the progress plans was at a part of the wall which did not give way. Finally, and this is material not only on the general aspect of the case, but also in counexion with the quantum meruit, no evidenco was given to show that the now contractor had been required to do anything or had done anything to remedy the defects of the pierre perdue although the diver had reported so unfavourably as to its condition. The defendants bava adopted it, chasms and all, for their new work.
The next point is very intimately connected with the last-the imperfect way in which the filling in behind the wall and mounds was carried out by the contractor. Much emphasis was laid on the existence of the ditch, behind the wall, full of water, 80 to 100 feet wide and several feet deep, in which boats could come at high water, and behind the west mound, of 10 feet broad and 14 feet deep. It was said that the contractor had been repeatedly told to fill these in, and the suggestion is obvious that if they had been properly filled in the mounds would have withstood the typhoon, and the wall would not have slid forward.
The whole question as to the wall is covered by the fact which is quite clear, that part of OUR of the clausea (2) of the contract was never intended to be carried out, and the other (59) was misunderstood. The filling in was duue, as it runst be and always is dono, from the shore to the wall, and not as Mr. Thomas thought he could insist. from the wall to the shore and it was proved that proper backing of brick rubbish immediately behind the wall was put from the sea, and that the so-called 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.
The ovidence with regard to the filling in be. hind the mound, as to the bulging of the mound, and time required for repairing it, are not suffi. cient to enable the assosser to advies me whether the contractor was at fault in this respect.
I have felt bound to put to the assessor this further question, as the contractor's negligence has been raised: what in your opinion was the real cause of the slipping of the wall? His answer is the design was unsuited to the work required, and there should either have been dredging, or the pierre perdue should have been weighted.
This brings mo to the quantum meruit: which means simply that work has been done, has been made use of, and has to be paid for.
The questions merely are has the work been done? What is the value of it? The principal | question aff-clad by those questions is of course the sinkage, as to which these questions arise: Was it 10 feet under the sea wall? What was it along the mounds? What amount of stone was put in What price, if any, is to be paid for it?
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Mr. Turuer's evidence is uncontradicted so
far as the sea wall is concerned, and it was taken in the only way possible, by soundings in the proximity of the tue of the mound. The assessor is of opinion, and I am satisflod that it was 20 font foot at its greatest depth. The amount under the mounds was agreed between Mr. Turuer and Mr. Thomas. As to the amount of stone 1 have ao difficulty in accepting the books as evidence under section 22 of the Evidence Ordinance, they are regularly the figures are kept in the course of business corroborated in remarkable manner they are probably true records, all other consider.
1 am atious apart.
therefore satisfied that 1415 cubic yards of stone ware actually used in sinkage and rubble mounds, whether it can all be claimed for remains to be seen. The corroborative figurus are
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11,993 Mr Turnor's estimate for sinkage i 15,75k piorre perdue. (According to Mr.
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