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Colonial Cases

Leong Tsze Cheong v. Oriental Bank Corporation, 1864

[building contract]

Leong Tsze Cheong v. Oriental Bank Corporation

Consular Court, Shanghai
July 1864
Source: The North-China Herald, 28 July 1864



Before Sir H. PARKES, K.C.B., H.M. Consul,

J. MAITLAND, E. W. BATT, Assessors.


The Plaintiff claimed Tls. 2,895, namely, Tls. 2,000 remaining unpaid on a contract made by him to execute sundry repairs and additions to the premises of the Oriental Bank in Shanghai; and Tls. 895 for goods delivered to the defendants, and for work, extra to the contract, performed at their request.

LEONG-TSZE-CHEONG, after being examined at some length as to the particulars of the contract,  said all the contract had been fulfilled by him, but that on presenting a note to the bank for payment it was snatched [from] his hand, and he was told he should go [to see] the Consul.

Mr. COOPER. Only a few further particulars as to the building were elicited.  [Orders] as to the building were generally conveyed through the medium of the Compradore.

Mr. MYBURGH. - I know that a separate agreement was made with another person to make the drains.  In the beginning of [????] I was engaged at some nine other rooms, [????] was engaged with the drains in the 5th [????], when I was dismissed. [Left margin cut very close.]

[???] TSUNG, a carpenter who worked for the {????] said, I was employed to do carpenter's [????] at the bank by Leong-Tsze-Cheong. [????] began with the stable, and there was no complaint about it.  I did carpenter's and [????] work.  Nothing was said about the [work] not having been done properly.  I [????] at three small houses for the Compradore.  The work was done perfectly.  I [????ged] the flooring and the supports of a [????] at the south side of the Bank building.  [I was] first told to use pine wood and then [????] with a red kind of wood, which I [????].  I know nothing about Leong-Tsze-Cheong's contract with the bank.

[????]-TSO-KING, a painter, said: - In 1862 I [was] employed by Leong-Tsze-Cheong to paint [the] bank.  I did paint the Bank premises.  [I painted] all the blinds and doors, and [????ged] all the broken window-panes.  I [painted] part of the outside also.  My [????er] told me to paint inside and outside {????] and I did so.  Usually in Shanghai, [????es] are painted twice, but sometimes only [????]/

By Mr. MYBURGH. - When the contractor [????] for the last time at the end of the fourth [month], I remained for two days, till my work [was] finished.  The contractor had no other work to do when he left.  If the requisite number of men had been employed, the work [????] have been done ion two months.  The [????] houses were finished in ten days.  The [????] place was finished in the 26th day of the 12th month.  The compradore sometimes hurried him on.

SUN-YUEH-SHING, a stone-mason, was employed to cut stone on the verandah of some [godowns], at the back premises of the Oriental Bank.  I have been sixteen years at this [trade].  I have paved the stables also.  I did [the] work creditably.

This closed the case for the plaintiff.

Mr. MYBURGH, in summing up the case for the Oriental Bank Corporation, said that, though the plaintiff asserted that the contract had been fulfilled, he (Mr. M.) denied [????].  The work could hardly have been [????] done.  Instead of taking three months, which should have been quite sufficient, he had taken eight months, and, he was entitled to [????oing] as the contract had not been fulfilled.  [????] as a point of law that, if work had not [been] fulfilled according to contract, then [the] defendants could dispute the claim.  As [to] the extra charges they were absurd.  The [????] was for pulling down old premises.  If a building was to be built, the pulling down [of] any old building on the same site was considered included in the work, unless specially mentioned in the contract.  A considerable portion of the painting too had not [been] done as it was contracted for.  There was no objection to a survey being held on the premises, for the work would be found disgraceful.  [It was] natural that the contractor, painter, mason, &c., should say that everything was [done] perfectly, because they don't wish to [lose] Tls. 2,000, which is a great deal to a Chinaman.  The bank was at a great disadvantage on account of the absence of Mer. Webster, who looked after the work for the Oriental Bank.  The contractor waited [till] Mr. Webster set his foot on board [the] steamer by which he left Shanghai, and then brought the action.  But fortunately for the bank, others were aware of the manner in which the work was done.  Messrs. Whitfield and Kingsmill also were aware of this, and he (Mr. M.) must [censure] the conduct of Mr. Whitfield, [who] did not oblige the men to work [properly] although he had authority over them.  (Some letters were here read by Mr. Myburgh, from the Oriental Bank Corporation to Messrs. Whitfield and Kingsmill, drawing their attention to the slow [and] unsatisfactory manner in which the work was progressing.)

In consequence [of the] delay in the painting, the godowns [were] perfectly useless, and his clients lost considerably by this.  The drains and sewers [were] in a very bad state, and the contractor's [task] was to make them effective, even although they were in such a state that they required to be entirely renewed.  The [stables] were put up with such rubbish that [they] had to be pulled down again.  The contractor had been amply repaid by the [receipt] of 2,500 Taels for all the work he had [done], and he had n op doubt the Court would [so] decide.

He would now put in letters from Mr. Whitfield to Mr. Webster, of various dates, mentioning that the work as performed by the plaintiff was incomplete, that he was [in] treaty with another contractor, that an agreement with him had been completed, but [that] six weeks would still be required for [the] completion of the repairs under the new contract.  No fresh work was required to be performed, and it was therefore evident that [the] plaintiff's contract could not have been [cancelled].

The Court then adjourned at 2 p.m.

On the Court re-assembling, it was intimated that Mr. Whitfield, who had been summoned for the plaint, but had not been present in the morning, was in attendance.  It was accordingly arranged that he should [be] examined now.

Mr. WHITFIELD:- Thought the terms "solid and substantially" in the contract applied [more] to the wood-work than the brickwork [of] Chinese houses, as their strength lay principally in the woodwork.

The COURT supposed that Chinese [con????] to a great extent in the faith of foreigners, but it was really a great pity that they should blindly sign documents containing legal technicalities which they could not possibly comprehend.

G. WHITFIELD: - Money was kept back from the plaintiff, on account of the backwardness of the work of the godown, which I wanted him to get.  I knew the man was hard up for money.  The new contractor shewed me in his book that he had charged Tls. 1,200 for reconstructing the drains.  The whole amount of the second contract is Tls. 2,000.

To Mr. MYBURGH: - There is a memo in the contract to the effect that the work was to be completed within three months.  I remember Mr. Webster complaining of the slowness with which they were progressing, and I urged on the contractor.  He did not work quickly, because he had no money to pay the workmen.  He promised to send more.  The contract is in an unusual form.  It certainly is comprehensive, it means nothing and means everything.  The expression "overhauling" the premises would imply that no bad tiles or rotten framework should remain.  The expression that "the flooring was to be taken up and sawn through" would imply that the same timber was to be re-laid.  The custom has been universal to pay contractors in advance, security beinbg given by the contractors.  The plaintiff has been paid Tls. 2,500, which I did not consider sufficient to cover the work done.  I thought Mr. Webster required more to be done than the contract justified him in demanding.  The pulling down the old houses should not be an extra charge; but the contract ought to provide on that point.  It is not usual to allow an extra charge unless either the architect or the employer's assent.  I should not have allowed this charge without consulting Mr. Webster, had it been referred to me.  The Compradore wished three Chinese houses with out-houses built for himself.  I imagine the extra charge of Tls. 250 is for a fourth house in addition to the three first made.  I don't think Tls. 130 excessive for two well made substantial gates with posts.  The work mentioned in the contract, or rather that which Mr. Webster wanted done, has not been completed.  The painting of three doors and seventeen verandah windows and of the stairs would be properly included.  To make drains effective it is necessary to take them up in parts and repair them wherever they were effective.  If I found in the course of the work, that the drains had to be entirely renewed, I should consider the contractor entitled to more money.  It was not thought that they would require to be renewed in this instance, or it would have been mentioned in the contract.

To Mr. COOPER: - Three months was a very short time for a Chinaman to perform the work in.  I cannot say that I am aware any bad material was used in constructing the stable.

To COURT: - I was of opinion throughout that Mr. Webster wanted better work and rather more than the contract intended.  I do not recollect his changing any of the work.  If the compradore's room were first paved with Singapore wood and altered to granite later, the latter would of course be an extra.  I was under the impression that the Compradore was squeezing additional work to suit himself.  The drawing room was ordered to be re-painted, because the first coat was too dark, and had not been submitted to Mr. Webster for approval.

KAM-SING, a contractor, was working last year at the Oriental Bank.  I know the plaintiff was at work there; when he left I went in.  I offered to complete it for Tls. 2,500, but Mr. Webster would not give more than Tls. 2,000.  I painted two doors inside and seventeen verandah windows. (Witness here proceeded to enumerate other items of work he had performed; white-washing ceilings, mending roofs, repairing drains, &c.) I enlarged the drains from 14 inch by 1 ft., to 18 inch by 16 inch.  They were very bad, the water could not pass.  I have made them six bricks thick instead of two.  I executed various repairs (enumerated) in the cook-room and stables.  The plaintiff had made the latter, but Mr. Webster told me to alter them.  The plaintiff has tried to persuade me to say that he had left everything well done; but I refused.

To Mr. COOPER: - I had no written agreement.  If I had not had to build the drains, I would have charged Tls. 900 for the remainder of the work.  The painting which I did had been done by the previous contractor, but the heat of the sun had blistered it.  I had to put Tls. 320 worth of work in the roof.  I used more than 60,000 tiles.  The woodwork was good.

The Court was then adjourned, at 5 p.m.

(19th July)

The Court having re-assembled, Mr. Myburgh called

J. G. RICARD: - I am the Acting Manager of the Oriental Bank.  The plaintiff was a contractor and superintendent of the work.  I knew he was doing the work under contract.  I knew the nature of the work he had to do, and the time it was to be done in.  I have frequently, almost daily, heard Mr. Webster complain and remonstrate with him on the delay and the manner in which the work was done.  Whatever he did was found fault with; it was impossible not to do so.  We had to send for the Architect time after time about it.  The Architect used not to come when sent for.  I don't know whether the contractor was the only superintendent of the work.  The Architect used no influence to improve the nature of the work.  The plaintiff was constantly promising to amend.  About the middle or end of June he was still on the Bank premises.  There was no delay on the part of the Bank to prevent him from going on with the work.  Every facility was given him for carrying it out.  When he left the Bank in June he had not completed the contract.  He had left as great deal undone, and what was done was executed badly.

There was a contract entered into by the bank with Kam-sing to do the work in place of the former contractor.  I don't know what was the contract between him and Mr. Webster.  The painting work which was done by the first contractor is now being coated again on account of its having been so badly done.  This was the inside and outside work of the senior and junior mess building.  The first contractor neither made the wall substantial odf water=-tight; I don't think he touched it.  The boards in the junior mess were not altered as mentioned in the contract.

To the COURT: - The old contractor never touched the back premises.  Kam-sing has the contract now.  A few of the boards on the floor of the junior mess were lifted and then put down again.

To Mr. MYBURGH: - The compradore would not stay in the compradore's house and he sent the shroff to live there.  There was an unnecessary delay in paving the godowns under the junior mess.  The godown had to be emptied for, I think, two months before the plaintiff commenced operations.  The bank suffered loss in consequence, as I think at that time we were receiving Tls. 70 per month for the premises.  When the plaintiff left, both premises were not in thorough repair.  It did not require attention to be drawn to this.  The drains or sewers were not made effective.  Making them effective we looked upon as the most important part of the contract.  These drains run at the back and both sides of the premises into the river.  To my knowledge, neither Mr. Webster nor myself told him to do more than the drains.

To the COURT: - I think the porter's room comes within the contract, as part of the bank premises.

To Mr. MYBURGH: - The second contractor had to paint all the premises a second time.  Under the contract the plaintiff was paid Tls. 2,500.  The work was so badly done, that I think he was overpaid.  The final cause of his dismissal was the manner in which the drain was commenced to be repaired.  I have myself put my foot through the brick work which he put up.

To Mr. COOPER: - At the time that this work was in progress I was an accountant in the bank.  My duty keeps me in the bank part of the day.  I consider it part of my duty to look after such work if deputed to do so.  I was deputed to do so.  I never made complaint personally to the contractor.  I was not in Shanghai when the contract was made.  Mr. Webster was not here either when the contract was made.  I am not aware that Mr. McDouall put any impediment in the way of the building being done; I think it improbable that he did.  I don't know that the Architect applied to Mr. Webster to have the godown cleared, but after it was cleared Mr. Webster applied to the Architect to get it completed quickly, which it was not.  I don't know that the drain required to be taken down and rebuilt.  I consider the contractor should be at the expense of pulling down old buildings.

To the COURT: - The boarding in the junior mess was not re-laid since.  I think Tls. 100 should be the probable expense of altering it.  I am not certain of the time the godowns were kept idle.  We lost upwards of a month's rent.

To Mr. COOPER: - I don't recollect any sycee boxes having been left in the godown after the other goods were cleared out.

F. TEMPLE said: - I am an Assistant Accountant at the Oriental Bank; I witnessed the contract made with the Plaintiff.  Three months was the time agreed to by the plaintiff to do the work.  The work mentioned in this contract was never completed by the plaintiff.  The plaintiff has been remonstrated with frequently by Mr. Webster and myself.  He said "can do, can do."  The work was badly done, especially the stable. The back part of the premises is still unfinished.  Our godowns were empty for some time before the work commenced.  I should think they were empty for a week or so.  The plaintiff was remonstrated with almost daily.

To Mr. COOPER: - I recollect plainly when this contract was made.  It was sent in to our place by Messrs. Gribble and Whitfield to be signed by the contractor; the Chinaman signed and sealed it in our presence in the Bank.  We all explained the terms of the contract to the plaintiff.  It was afterwards I explained it to him.  Mr. McDouall and Akung, a shroff at the Bank, explained it to him at the time.  I am not aware that the contract was made in Chinese also, a counterpart of the English one.  I know the plaintiff got a copy of it but I don't know whether in Chinese or in English.  I know nothing about the signing of the documents.  I used constantly to see to the work.  The attention of the architects was drawn to the manner in which the work was being done and I have frequently spoken to the contractor myself.  I didn't write to the architects about the flooring of the junior mess in particular, as I thought it sufficient to speak to the contractor.  I don't know that the godown was full of empty sycee boxes after the goods were taken out.

To Mr. MYBURGH: - A special complaint might have been made by Mr. Webster to the architects as to the flooring but I don't know.

To THE COURT: - I was present when the contract was signed and explained.  It was read to the contractor in pigeon English by Mr. McDouall, some parts twice, and the contractor said he understood it.  I know that it was read from beginning to end.  Then our shroff, Akung, explained I t to him, Mr. McDouall telling Akung and Akung explaining to the Chinaman.  I don't know that Akung had seen the contract before.  It was then signed by all present.  The addition about the time, three months, was written at the time, but I don't know whether before or after the signatures were put on.  I never saw the counterpart of the contract in Chinese.  There was a duplicate which was signed by all parties at the same tine, but I don't know what became of it.  I should think the explanation of the contract took about twenty minutes.  I am conversant with pigeon English and think the contract could only have been made intelligible in that way.  Mr. McDouall also took him about the premises shewing him the places to be repaired, in order that he might understand better.

AKUNG, said: - I am a shroff at the Bank.  I know this contract.  I have signed it myself.  Mr. Temple and Mr. McDouall signed it at the same time Leong-tsze-cheong sighed it also.  Leong-tsze-cheong said he could finish the work in three months; he said he understood all the contract.  I saw Mr. McDouall write on the contract after signing it.

To Mr. COOPER: - I don't know what was to have been done in the three months.

To THE COURT: - The document was explained to the plaintiff in English.  I asked him if he understood it and he said yes.  I had little to do but witness the signature.

KAM-SING, the second contractor, said:- I had my orders as to the drains from the Bank, and I remade the drains by direction of the Bank.  Mr. Webster ordered me to make new, small drains, eight inches in diameter, to lead into the larger ones.  The cost of this I think would be Tls. 1,100; otherwise, without making the new drains, the cost would be Tls. 700.  I received my orders direct from Mr. Webster.  To re-lay the five rooms in the junior mess, would cost Tls. 150.  If the old material were used the charge would be Tls. 50.

This closed the case for the defendants.

LEONG-TSZE-CHEONG being re-called, said, the reason why he had not brought forward his case before, was the death of Mr. Gribble and the departure from Shanghai of Mr. Whitfield who had not arrived again until March.

Mr. COOPER said he did not consider the statements of the defendants fully proved.  Mr. Whitfield's evidence should be respected, and he had said that the plaintiff should have received a sufficient sum in advance, which he did not, and was thus incapable of carrying on the work.  Another difficulty was that the godown was not emptied entirely, and there were obstacles put in the way of the work by Mr. McDouall. 

The question was, whether the plaintiff had fulfilled his contract.  He himself had stated that he did so and he (M r. C.) thought the evidence shewed that he did.  There was an architect appointed to oversee the work and Mr. Ricard's and Mr. Temple's evidence shews that n they were deputed to look after it.  The crack in the ceiling was brought forward as a complaint by defendants; but this was not proof of bad workmanship, as it was liable to crack at any time.  Then the chief complaint was as to the roof.  It was not to be wondered at that, after nine month's exposure to the heat of the sun, the roof should be considerably injured.  It would be grossly unjust to compel a contractor to pull down and rebuild new drains which, according to the terms of the contract, were "to be made effective."

On behalf of his client, he claimed Tls. 200, and left the additional 800 or 900 Tls. to the consideration of the Court.  The exact amount would be decided as the Court thought advisable.  To account for the delay in the action, it was necessary to explain that Chinamen were afraid to go near the bank, Mr. Webster's name inspired them with such terror; and, to be candid, the plaintiff waited until he knew Mr. Webster had left Shanghai before bringing the action.  He (Mr. C.) was convinced that the court would give a favorable decision.

The Court gave judgment in favour of the plaintiff for Tls. 1,385 in addition to the Tls. 2,500 he had already received.

[See also 30 July, 1864: Summary of the Week: A copy will be found in another column of the contract between Leong-tsze-cheong and the Oriental Bank Corporation, for some repairs in the Bank premises, regarding which a Consular Court case arose, of which we publish a report last week.  Our readers will agree with Mr. Whitfield that it is singularly comprehensive inasmuch as, under it, the unfortunate contractor could have been compelled to put new floors, new walls and a new roof to the bank building, besides erecting several new houses, and painting and white-washing the whole when finished.  We think therefore that the award by the Court of Tls. 1,385, though it may have been somewhat liberal, was founded on a right view if the case.]

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