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Colonial Cases

Chang-ching-chung v. Habibbhoy, 1860

[building contract]

Chang-ching-chung v. Habibbhoy

Consular Court, Shanghai
1860
Source: The North-China Herald, 17 March 1860

 

APPEAL

In

CHANG-CHING-CHUNG versus ALLADINBHOY HABIBBHOY

APPELLANT, Alladinbhoy Habibbhoy

RESPONDENTS, Chang-ching-chung and Hoo-tih-shing.

 

This was an action brought by the Plaintiff to recover from the Defendant the sum of Taels 1,803 due to them for building houses.

C. Khakeebhoy, having been duly warned to interpret faithfully acted as Interpreter.

DEFENDANT. - I do not admit the claim.

[After some explanation it was found that a sum of Taels 1,100 was due on the original contract, but the admission of both parties, but that the Plaintiffs claimed a further sum of Taels 703 for an alleged extension of the building, which they state to have been made at the request of the Defendant.]

CHANG-CHING-CHUNG, duly warned to speak the truth, states: - The measures mentioned in the contract are English measures [a plan handed in which he declares to have been the plan given to him by the Defendant but he does not know who drew it.]  The dimensions in the plan agree with those stated in the contract.  The building has not been made in accordance with this plan.  The large house is made longer by 7 ½ feet and broader by 6 feet.  There is a slight difference in the small house.  The Chinese house, consists of 13 rooms, each of which was by the contract to have been 15 feet broad and 12 feet deep.  Seven of these have been built but on the demand of the Defendant each was made of 18 feet broad but only 11 ½ feet deep.  I have stopped building because defendant would not give me an instalment.  I wished him to write out another contract containing these alterations but he would not do so.

The demand of Taels 703 which I make, in addition to the demand  due on the contract, is on account of the above extensions, also for painting, glass, hinges, locks, and wooden mantel pieces, deducting however Tls. 420 for the 6 of the 13 rooms, which I have not built.

{Plaintiffs hand in an account.]

For the addition to the large house Tls. 825

For additions to the 7 Chinese houses 70

Painting 40

Glass 60

Brasswork, hinges, locks & screw nails50

A court-yard gate30

Mantel pieces48

Taels 1,123 

Balance on contract1,100

Less as above  420

  680

Total due,  Taels 1,803

 

Cross-examined - I was ordered on the 23rd or 24th of the 16th Chinese Moon (22 or 23 of July) to increase the dimensions.  I have no proof of this.  I wanted Defendant to write it on the contract but he would not.  A foreigner, who speaks Chinese named Assam, was the medium of giving me the order.  He is the Defendant's servant.

ALLADINBHOY HABIBBHOY, (duly warned to speak truth there being no means at hand to swear him,) states: - The agreement I handed in is the original agreement for building the houses - it is built according to the agreement but the Chinaman claims for an extension which should not be allowed, for the measurements were to have been inside and exclusive of the walls.  I hand in a plan.  This was given me by Plaintiffs.  I never told Plaintiffs to make the house larger.  With respect to the charges for glass and other things, they were all, with the exception of locks and grates, to be found by the contractor; so it stands in the original agreement.

[The Consul on inspecting the copies of the contracts handed in by the two parties found that in the one the articles referred to were to be included in the contract price and in the other not included.]

[PLAINTIFF re-examined - I cannot read myself nor my fellow Plaintiff either.  I saw the counter part and my copy of the deed written; both copies were written by the same person.  The person who wrote them returned to Shaou-hing last month.  His name was Woo-king-foo, he is an assistant in a money shop.  He was last year employed in the Tae-ho money shop in the Maloo near the Bowling Alley.

DEFENDANT, re-examination continued. - The chop of the security is on the five receipts which I now hand in.  I know the man who is security.  [receipts handed back to Defendant.] No mantel pieces have yet been out up, and the window glass is still not supplied in full.

[The case was here adjourned till Friday the 16th at 11 a.m., in order to have the attendance of the Plaintiff's security and also of the Defendant's servant.]

Case resumed, Friday, December 16th, 1859.

LO FUKEEN having been duly warned to speak the truth, and after having been shown the two counterparts of the contract, admits that part put in by the Plaintiffs as having his signature but denies that the one put in by Defendant was signed by him.  He admits that he was the security and the same is admitted by both parties.  Without having a copy of the contract before him he has written several examples of his hwa ya and after inspection H.M. Consul is of opinion that it bears out the witness's statement.

Witness continues: - Neither of the copies of the contract were written by me, they were drawn out in full, when they were given to me to sign.  I signed two copies of the contract.  I read over both contracts and I recollect that the glass, painting, &c., was not to be included in the contract price.  The two copies of the contract which I signed were given me by the linguist of the Defendant in presence of the Plaintiffs.

Cross-examined. - I was security that if Plaintiffs were paid their money they would not abscond with it.  I was not security for the work being done.  I refer to the receipts handed in by Defendant, which I gave and which show that I received money on behalf of the Plaintiffs.

JUDGMENT.

That the Defendant pay to the Plaintiffs the whole sum claimed of 1,803 taels together with interest on the same at the rate of one per cent per month from this date to the date of payment, and the costs of the suit; farther that the contract between the parties be determined, the evidence produced and the inspection of the documents themselves having led to the conviction that the copy put in b y the Defendant is a fabrication.

(Signed) THOS. TAYLOR MEADOWS, Consul.

We assent to the above.  J. THORNE, W. G. HOWELL.

 

SHANGHAI, January 17th, 1860.

To the Honorable F.  W. A. BRUCE, C.B., H.M.'s Plenipotentiary and Chief Supt. of British Trade.  Shanghai.

SIR, - I am under the necessity of appealing against the Consular decision in the case Chang-ching-chung and Hoo-tih-shing v. Alladinbhoy Habibbhoy as I am the victim of a conspiracy, of the existence for which I was entirely ignorant until the trial, and therefore unprepared with the evidence necessary to expose the fraud.

In July last, I contracted with two carpenters to build me a house for the sum of Tls. 3,600 and contracts in duplicate brought by the Carpenters were signed in the presence of Tze-jung, banker, and Akoo, tea broker, the former witnessing the signature of the documents of which one was afterwards handed to me and the other retained by the carpenters.

Before the house was completed the carpenters stopped the work, having received from me the sum of Tls. 2,500 on account, on the pretence that they had exceeded the dimensions stipulated and were therefore entitled to extra remuneration, and the matter was referred by them to H.B.M. Consul.

In evidence, each party submitted hjis copy of the contract; but to my surprise the purport was found to differ, and the Banker who was the only witness in the case, pronounced the contract produced by me to be spurious, and the one held by the carpenters to be a genuine  document.  Under the circumstances, I gave notice of appeal and sought out the tea broker who had acted as interpreter when the contracts were signed, and he has declared before H.M. Consul that the one handed into Court by me is the identical copy furnished to me by the carpenters at the time of signature, but he does not know whether the one produced by the carpenters has been since substituted or not as he did not read the copy which the carpenters received.

I have the honour, &c., ALLADINBHOY HABIBBHOY, per G. ALLANAH.

Statement of the Consul's ground, of decision to the Chief Superintendent.

The Plaintiffs in this Cause were Chinese builders who had undertaken to erect certain buildings for the Defendant, and the dispute between them was, in the first instance, whether the builders had or not performed more work than was stipulated for originally and that at the request of the Defendant.

A written contract had been made out in Chinese and in that form of original duplicate which the Chinese call Ho-tung and which we may denote by, indenture, there being a line of writing between the joined documents of which, after their separation, one half appears on each.  But it came out in the course of the proceedings in Court that the two documents, severally handed in b y the two parties, differed in one portion to a material extent, and to a degree that could not have been the result of inadvertence.  The Court thence-forth devoted its attention to the ascertaining of which paper was genuine ands which a fabrication and for this purpose it held a second sitting to examine the security and witness to both documents, Lo-fuh-keen, who had not been produced at the first.  I caused this witness to write out several examples of his hwa-ya or attesting signature.

The minutes will show that, on a careful comparison of these examples with the hwa-ya on each of the papers produced I considered they corroborated the security's evidence.  He stated positively that the alleged counterpart handed in by the Defendant was not that attested by him ands that the signature purporting to be his, was a forgery.  The Court having come to the conviction that this was the fact and holding that the attempted fraud vitiated the whole case of the party on whose side it appeared, gave Judgment accordingly.

With this I sent in the Plaint; the Minutes of the proceedings; the two documents handed in as original; counterparts of indenture; the above named examples written in Court by the security; a report of a survey of the building; and the statement of the Appellant.  The Respondents have declared that they are not sufficiently acquainted with any foreigner to get a Counter statement prepared.

THOS. TAYLOR MEADOWS, Consul.

Shanghai, 19th January, 1860.

P.S. - I also send in the evidence of Ting-a-ho which I took ion the representation of the Defendant and (then) Appellant that he (Tung-a-ho) was not in Shanghai at the time of the trial and that his evidence was important.  I found in it, however, no cause to alter the judgment or to grant a second trial.

THOS. TAYLOR MEADOWS, Consul.

 

IN THE APPEAL of Alladinbhoy Habibbhoy against the sentence of the Consular Court of Shanghai in the suit of

CHANG-CHING-CHUNG and HOO-TIH-SHING versus ALLADINBHOY HABIBBHOY.

As I find that the counterpart of the agreement produced by the Chinese Plaintiffs bears the stamp of the Defendant, whereas the counterpart produced by the Defendant is not authenticated by the Chinese the former must be considered as binding on both parties; the kung-tow varnish, glass, hinges, pivots, and locks are therefore not included in the work to be done for the sum specified in the contract, and must be paid for as extras.

The Chinese teachers, to whom I have caused the papers to be submitted, having been consulted separately agree in stating that the counterparts were written by the same person, and that though there is a dissimilarity between the two hwa-ya, the general run of the pencil in both is markedly identical.  I cannot attach much weight to the evidence of Lo-fuh-keen on the subject, as, if fraud was intended by the parties who made out the documents, he must in all probability have been cognizant of it.

But on the evidence before me considering the Defendant's ignorance of the language, and the probability of the Chinese having introduced this discrepancy as a means of extortion, I am not prepared to treat the document as a fabrication, or the Plaintiff as involved in the fraud.  I consider, however, the counterpart produced by the Plaintiff as the document which regulates the rights of both parties under the contract, and the only one which can be taken into consideration.

I do not think the evidence conclusive on the question whether the enlargement of the building was made b y the Defendant's order or not.  The Defendant sates that the measurements were to have been inside and exclusive of the walls, and in support alludes to a plan handed in by him, and prepared, he alleges by the Plaintiff.  The Plaintiff on the contrary asserts that the enlargement was ordered by the Defendant's servant.  Before affirming that part of the decree which orders the payment of the whole sum claimed, I wish the consular Court to state whether the plan alluded to is admitted by the contractors whether it bears out the Defendant's allegation that the measurements were to be made inside the walls, and whether the Defendant's servant Assam gave an order to the contractors for a deviation from the original plan.

FREDERICK W. A. BRUCE, Shanghai, 15th February 1860.

 

BRITISH CONSULAR COURT, Shanghai, 9th March 1860.

In conformity with the instructions conveyed at the close of the Chief Superintendent's communication of the 15th February last, I have to repiort as follows:

Two plans were produced, one by each of the parties, each of whom maintained that that produced by himself was that according to which it had been agreed the work should be done.  I now forward both plans as docketed by me on the presentation; together with a report on the same which I (acting on $XV of the Rules of Practice) desired Mr. A. Davenport to send in, after full examination of the two documents.  Nothing is said in either plan as to whether the dimensions given were inside or outside ones, and they differ as stated in each.  But I consider the plan produced by the Plaintiffs to be the true one, and for the following among other reasons.  One of the few essential matters of fact not in dispute in this cause, is that the copies of the contract presented by both parties agree in stating, and in the same terms, that the building shall be "sixty feet in length."  Now the proper interpretation of that expression when applied to a building, containing several internal partition walls, appears, obviously to be "total length."  Such a dimension given in a contract cannot serve any purpose if it is liable to be increased not only by the outer walls but by each internal partition.  And, as in this case, The Plaintiff's plan corresponds exactly with both contracts as interoperated, I therefore conclude it to be that originally adopted.  I may further observe that the Plaintiff's plan has all the appearance of having been in constant use during the progress of the building, and that though the Defendant does  not understand Chinese, it is not unfair to presume that it must have been seen by the Chinese whom he employs to transact his business with natives.

The Defendant's British Indian servant Assam was not produced by him at the first hearing of this cause, though it now appears from his enclosed deposition, taken before me this day, that he was employed to watch the building in progress.  The re-examination of the Plaintiff's follows that of Assam in the enclosed; and the Chief Superintendent will perceive that the statements of the two are directly contradictory.  But having come, as above, to the conclusion that according to the original agreement the length of the building was to be sixty feet measured outside, it is an obvious and simple  step to the presumption that the Chinese builder did not go to the expense of erecting a larger building without having been requested to do so.

THOS. TAYLOR MEADOWS, Consul.

 

IN THE APPEAL of Alladinbhoy Habibbhoy against the sentence of the Consular Court of Shangae in the suit of:-

CHANG-CHING-CHUNG versus ALLADINBHOY HABIBBHOY.

After considering the further documents and evidence taken in this case, I agree with Mr. Meadows in thinking that the expression "sixty feet in length" is applicable to the total length of the building, walls included; ands that, as the plan produced by the Plaintiff tallies with both copies of the contract in this respect, it must be assumed that this was the length originally agreed on.  The evidence of the defendant and his servant contradicts that of the Plaintiffs as to an order having been given to increase the length; but I agree in the conclusion of Mr. Meadows that the strong presumption in favor of a man's not doing more than he is bound by contract to do is decisive in favor of the Plaintiff's claim.

I therefore confirm the decision of the Consular Court in as far as it orders the Defendant to pay to the Plaintiffs the sum claimed of One thousand eight hundred and three taels with interest on the same at the rate of one per cent per month since the 16th ay of December last, together with the costs of the suit.

(Signed) FREDERICK W.  A. BRUCE, Shanghae, 10th March, 1860.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School