!
212
Blood's evidence, which has been adopted, and allowing for the cor. rection of datum level, but not for the 10 feet error in line which must be considered separately) 15,232 rubble stones in mounds
to
73.419; leaving a quantity of 8,194 cubic yards of stone
So be accounted for. far as their amount is considered it can all be claimed for, ou the quantum meruit, at the price to be fixed by the assessor, I allowed an amendment of the claim, which was originally for only $46,637 94 plus $200 and interest by adding a
further claim practically in respect of the sinkage which would bring the claim above the amount of $74,000 claimed on the writ. A
very le- gitimate point was made by the defendants in connexion with the delay in making this claim, and it was strongly argued that it afterthought. But up to the limit given by the claim on the writ the amendment was a pro- per one to ask for, though it naturally made us Forutinise the stone boo s with additional care. I must now deal with the arguments which were put forward on the other side.
W 38
ап
Clause 50 of the specification provided that "no payment will be made to the con- tractor for sinkage, and he will have to satisfy himself as to the amount which is likely to take place, no allowance will be made him for anything below the present ground line." And the estimated quantities on which the tenders were made had this item "pierre perdue (exclusive of sinkage) for sea wall 16.815 cubic yards".
The defendant's contention was that as there was to be no allowance for sinkage, the price me at price for pierre perdue alone, and there- fore no claim could be made in respect of it. In other words that the defendants were to get it for nothing under the contract, and therefore they were to get it for nothing under the quantum meruit.
But the meaning is plain the contractor is to take the risk of sinkage, to estimate it for himself, and charge accordingly: and if there turns out to be more thau
ha estimated that is his own lookout, he will have no allowance for it. The fact that $1.50 was charged in the first tender satisfies the assessor that sinkage was allowed for at first and that 81.70 was subsequently charged for shows that it was much more than was first imagined, and as this figure was accepted, the reason must have been known to both parties: though perhaps each kept his own counsel. The story of the soundings attempted but not made on the rough day, with Mr. L mbert, and the imaginary 4 feet, is probably one of those myths which grow round facta, when the brain has been long worried with a law suit.
The result is this-Instead of paying under the contract for 16,815 cubic yards at $170 without regard to the amount of sinkage, the defendants have to pay on the quantum meruit, for the number of yards actually allowed as at the price fixed by the assessor. The defen dants have got what they want, and what they must have, and therefore must pay for, at its real value.
|
[ March 30, 1908
had to go by the contract, I should put upon clause 10 of the Specification a construction which would result all through this claim in the samne figures,
THE HONGKONG WEEKLY PRESS AND contract to pay for it specially arising in regard to it. Out of the 8 194 cubic yards of stone still unaccounted for some are absorbed by the new pierre perd e, and some by the new I cannot however allow for sinkage under it. stone dumpd outside these limits, even though its presence may strengthen the sea-wall. I cannot be compelled to pay for work which is voluntarily done, even though it may benefit me, unless I bave a chance of rejecting it, and have not done so. These figures the asses or computes at 167 cubic yards of pierre perdur, 88 which is half the amount used by the altera-future. tion in the line, and 2852 for sinkage under it which added to 73,419 already allowed for, makes 77,438 cubic yards to be allowed : must note that if to these figures are added 2773 cubic yards, the difference between Mr. Thomas' quantity for sinkage, and Mr. Turner's. agreed to by the latter and 1166 for the dis- allowed half of the alteration in line, the contractor's figures of 8,194 cubic yards still to be accounted for, leave only 236 cubic yards for loss, and therefore I am justified in having taken the st ne books as accurate.
I turn now to another branch of the subject, A number of English decisions were referred to, and, although I have a doubt on the question whether they are applicable, I shall deal with possible, so that the time them as exhaustively as which has been devoted to their consideration may be turned to the profitable use of serving a guide to contractors and others in the All the questions with which I have to deal may be referred to as arising under the counterclaim.
I think it canoot fail to have struck even the learned Counsel who relied on these cases, how very inapplicable many of them seemed to be, on Now the face of them to Chinese contractors. of couree English decisions must be followed in this Court if they are applicable to the circum- But a great part stances which come before it. of elaborate superstructure of argument which those cases have reared on the building contrast depends on what is common knowledge or com. As to the price, I have taken the stone mon understanding among contractors and their books for the quantities used, I must take them employers in England. To take a recent case also for the prices on which the price to be decided in the Court of Appeal in 1902, re paid for them is to be based. This shows an Ford and Benrose's Arbitration, the whole judg average of 65 cents per cubic yards and mak- ment depends either on well-ascertained practice ing an allowance for 3 cents for divers, and 3 and some other fact which is also well-under- cents for foreman and 20 per cent profit the as-stood. Are those things equally well ascertained sessor thinks that 85 cents per cubic yard should and understood among the Chinese and the It by no means be allowed: that is a price free from all sinkage Europeaus in this Colony?
I am anxious not to lay down too and other risks and it seems to be a reas nable follows. price. The assessor allows 90 cents for the rubble startling a doctrine, but I have bad this question mounds. The 20 per cent profit is taken from present in my mind ever since I have presided Is the whole of the elaborate the contractor's own evidencs to the amount in this Court. of profit he expected to realis: 20 to 30,000 case-law of England applicable to the circum- dollars on a contract of $14,000. I think the stances of the Colony ? English law is only in plaintiff is not entitled to recover the $1100 force here under the Charter in so far as it may paid to Mr. Danby for setting out the line bebe applicable, and when I come to a series of cause that must be looked at as part of the decisions, the key note to which is the custom or general expenses covered by the profit. Geueral practice of a certain class of people who enter ly I may say that the figures Ellowed by the into contracts in England, I hesitate to apply assessor on all the other items include a profit them as of necessity to the people in Hongkong. of about 20 per cent, which in a quantum meruit These onses are for the most part a highly as in payment under a contract, must cover all elaborated structure reared by onstom and practice, but resting at bottom on the intention incidental
and financing. expensed There are three groups of items in the claim of the parties, the basis of contract among all which the assessor has to deal with, and the figures peoples. That the principles of the English
A few points law of contract extend to Hongkong there is` will be given specially hereafter. only have to be mentioned in connexion with of course no doubt, and that decisions given them. I must say here that the defendant is in England since the Charter, in so far as they at a disadvantage, because owing to Mr. Dauby's expound those principles should be applied here But there the certainty of untimely and much regretted death his own is equally clear. extimate of what he intended to allow lacks bis application ceases, and when, as I say, I find own defence of it. Que thing however is clear the intention of the parties expanded so as to that if he did not intend to make au allowance include customs aud practice well understood in for the $ involved by the change of the Or. England, I am bound to pause and enquire duance datum line, as would appear from Mr. whether those customs and practice are so well. It will be said that Thomas' refusal to allow it, he would be wrong, understood in this Colony. For the most part therefore I accept on the assessor's advice, Mr. Blood's scheme of figures, Column A in Exhibit 27.
With regard to the materials on the site: I accept Mr. Thomas' figures 1286 instead of the 9765 stone broken up for coucrete and also 796 instead of 858 for bidding stou-s, for the reasons given by Mr. Thomas.
I set myself a difficult task: fortunately in this case I have an assets ir fully conversant with the whole matter with which this case deals, and I think there will be no difficulty in arriving at a sound conclusion. I referred to this question during the argument, and Mr. Pollook very What are solicitors to do pertinently asked -
į
in advising their clients, if they are not to With regard to the plant on site, this can follow English case-law? for it would seem as be dealt with ou a clear principle. The figures if this principle which I am endeavouring to a merial mako clear would send them adrift from their Now as to the amount of stone to be paid for. estimated by the assessor for the quant. Much as Mr. Slade contested the point,
am of
are on the same basis as if they were contained · moorings. I think the answer is simple. In opinion that the basis of the quant om meruit is in a contract: that is to say they include the drawing up a contract where one of the parties still the contract, in spite of what has been outlay made by the contractor in earning his is a Chinese, they must try and ascertain the called for convenience ils rescission. It is not, profit, But they would ultimately belong to real intention of the parties, "parties" in the the contractor, aud the new contractor used pluril I cannot help thinking from cases which as will be presently seen, a practical question in
be, that is, his em.
bave come before me that a Chinaman's inten- this case, and therefore I do not consider it them, and therefore necessary to elaborate the question at any length. ployers the defendants, must pay for the tion is very often assumed to be that which hire But this involves too fine a calcula. is in the mind of the European with whom he I have no doubt that the contract must be
be worn is contracting. Take the simple facts connected Tooked to to determine what the true limits of tion, as many of the things will the stone dumping were, and that for the stone out by the time the work is complet d, and with the entering into this contract. The dumped beyond those limits the plaintiff cannot therefore the pressut value must be paid for, agreement between the parties was come to on The assessor bas anggested that a lump sum the strength of certain documents, the contract recover even on a quantum meruit. You cannot infer or imply the promise, involved in the should be paid for these things, and be fices it is signed afterwards. The contract contains s quantum meruit, when the circumstances in at 825 irrespective of the overseer's house number of clauses, some of which are unintelli- which I agree to. Bo far as this houses I which the work was performed farnish its
gib'e eren in English, and must be meaningless jargon when translated into Chinese. direct negation.
We must also look at the concerned $1,50 was the sum originally men.
tioned in the tender for the house as
post
it possible to bind the contractor rigidly by the contract to decide the question whether the plaintiff can recover in respect of the stude contract plan. The striking it out of the tender terms of that contract, said threover to those used in the erroneous line.
terms as expanded an-i -xpounded by the Eng- He undertook tu was clearly done in order to bring the total
t me impossible : set it out, and no quantum meruil can aris out' down nearly to $14900, and therefors that must lich decisions? It
be the basis of the valuation of his own mistake. But here, owing to the
I accept however "This d son not mena that the contract is to be alteration of the section of the wall s me of the
Mr l'homas' statement that, as built, it was not torn up, only that we must be a little more care- ful in endeavouring te ascertain the real iu- stone dumped in what has been called the up to the plan and in the circumstanose in foot error in line" has been absorbed in the new in which it was built this is more than probable tention of the parties. I am glad to-day that pierre perdue, and therefore there is an implied. The amsesor allows $1500 on this item. If I'my assemor finds nothing in this principle which,
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