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Colonial Cases

Fong Ye Sing v. Harvie, 1869

[work and materials]

Fong Ye Sing v. Harvie

Supreme Court of China and Japan
22 June 1869
Source: The North-China Herald, 26 June 1869



June 22nd 1869.

Before Sir E HORNBY, Chief Judge.


Claim of $2,468.44 for work and materials.

Mr. HARWOOD appeared for the plaintiff, Mr. RENNIE for defendant.

Mr. HARWOOD in opening the case said his client had entered into a contract with the defendant to build a bund at Ningpo, in front of the H.B.M.'s Consulate ground and was completing it according to specifications, when the Government architect on inspection found it was necessary to stop the works on account of the soft substratum upon which they stood.  A contract was then made by the plaintiff with the defendant to construct a coffer dame in front of the bund, which was carried out under the supervision of a foreign overseer appointed by the defendant, but proving to be ineffective the Government had taken over the whole of the works from the defendant and had paid him for same.  There was also a claim for driving piles at the new Consulate House at Ningpo.  The item of $400, which the defendant said he had paid had not been credited with had not been accounted for in the petition, as labour had been set off against it.

PLAINTIFF, sworn, deposed: - That the contract was made on the 13th of June 1863.  He did about 6-010th parts of the work, but did nit finish it, because the defendant told him on the 4th of March to stop it.  The first contract was to build as bund at Ningpo.  Was to get $6,000 for it and had to complete it in four months.  By the second contract he had to build and place coffer dams in connection with the bund works for which he to get $825, - 300 in hand, 300 when finished, and the remainder when all the work was done, and it had to be completed in three weeks. Did work under this contract.  One foreigner and compradore overlooked the work and instructed him what to do.  Received $300 to purchase materials and labour.  This amount is not sued for in the petition.  Did other work for the defendant irrespective of these contracts, in driving piles for the consul's house.  Furnished a correct account to the defendant.  Got a promissory note from the defendant that he would get $1,100 when the work was completed.  He supplied all the materials, piles, stones, &c.

By Mr. Rennie: - I received from defendant on account of bund $1,100, and $400 on account of the coffer dam, and on account of the consulate $274.  Received $200 but it was for the coffer dam.  Remembers giving in his bill for piles to defendant; it represents the sum now claimed.  Charged for stone when he sent in his bill, $768, but since then he had furnished to the amount of $140 more.  At the time of reckoning up defendant told him to furnish them.  Did work to the extent of six tenths under first contract, and then entered into the second; it was not to discharge him from the first, which had nothing to do with it.  He drove 1,140 piles at the consul's house.  In the coffer dame work the piles were of the same size.  It was agreed that the outer row of piles should be 15, the inside 12 feet, but he put in all of 15 feet.  Received no piles from defendant except those he drove in for the Consular building.  Received 3,000 piles for the consular building, defendant took those, which were not used.  Took none of defendant's piles, they were smaller in size.  All his were 15 feet.  Finished in March.  Got $300, and Tls. 500 of materials, from defendant to carry on the contract.  Up to October defendant did not advance money to carry on the works.  The work was in advance.  Remembers seeing defendant in April.  Was not told that the work was bad of that Government would not pay.  Defendant did not say he could not get paid himself on account of the badness of the work.  Went there to induce defendant to re-open the work again.

By the Court:- When he furbished the account he had not his books, and did not charge coolie hire, and this accounts for the discrepancies in the account.

THOMAS W. KINGSMILL, sworn, examined by Mr. Harwood: - I was architect for the government.  I saw the work.  The bund was going on satisfactory but I stopped it on account of the instability of the foundation.  The work was all right; it was the ground that was soft.  I saw the coffer dam in January.  I consider it was not carried out according to the sketch.  It was not tied or braced.

By the Court: - They should be tied on top and bottom.

By Mr. Harwood: - It was the duty of the overseer to see to it.  I had a lot of correspondence with Mr. Harvie on the subject.  I have a letter of 13th of January from him (letter read) to the effect that he had tied them according to specification, and that the looseness of the piles was due to the softness of the ground; which was occasioned by the shortness of the piles, which were, however, according to agreement.

By the Court:- The Government took it over from the defendant, and he was paid for the work done, for which he gave receipts - one of his receipts is dated 27th March for $1,746, for work executed at Ningpo.  This, less $245, is for piles; that sum being for platform.  Another receipt of same date is $2,300, on account of bund work; and one of $12,540  for work done in foundation of the consul's residence, is dated April.  Another of the same month of $500 is for purchase of materials.  Altogether Mr. Harvie had received for the works at Ningpo upwards of $6,000.

By Mr. Rennie: - My functions were those of Government Surveyor.  Major Crossman made those payments.  I don't know what they were made for, only that they were for works at Ningpo.  I made no valuation of the works.  I don't know that any was made.  Mr. Boyce and myself made some when we were there in January.

By the Court: - The materials were taken over by the Government when the contract closed.  I don't know the number of piles that were over, I don't think there were any.  I don't think there is any statement of the amount of materials taken over.

Mr. RENNIE then addressed the Court for the defendant, and contended that as the first contract was not completed as admitted by the plaintiff and elicited in evidence; and as the second is useless, and as the two conditions precedent - first, the completion of the work in the specified time; secondly, the completion of the work at all, were absent, that the plaintiff should be non-suited, and quoted the case of Appleby v. Myer, 38 L.Jl. and Miller v Field 20 L.Jl.

The COURT refused to stop the case, but would take a note of the objection and gave Mr. Rennie leave to move, if on reflection he thought it worth while.  The Court was not at present disposed to agree with the argument offered or that the cases cited were applicable to the case as it had been developed in the evidence for the petitioner.

Mr. RENNIE then criticized the items of the plaintiff's claim and urged that the defendant had been put to great expense and trouble in consequence of the plaintiff's failure to complete his contracts and that the defendant was entitled to set off this expenditure against the plaintiff's claim.

WM. HARVIE, sworn, examined by Mr. Rennie: - I am a builder in Shanghai.  The work done by myself independent of the sub contract at Ningpo has cost me $1,600.  On 7th April there was only $700 worth of stone and none supplied since.  The price charged is much too high.  I don't admit the $140 worth of stone said by plaintiff to have been afterwards received.  Mr. Boyce made a survey of the work done in the beginning of April.  I received no more stone.  The mud and brick for which $480 is charged is not or ever has been worth $100.  The second contract was made on 6th October, and the work was to be finished in three weeks, but at that time it was not nearly completed, as it was necessary it should have been owing to the rise of the water.  On the 15th November I asked him to proceed and he made a spurt.  On the 28th I told him if not finished immediately I would take it myself and finish it.  He agreed that I should do so, and withdrew his men and I supplied others.  The work was badly done; it was not properly bound.  It cost me over $1,000.  From the time he gave up I spent over the works at Ningpo $1,8609.  The piles sent were $3,134.  He employed none of his own, they were all mine.  The balance were sold to Major Crossman.  These piles cost $2,706.  One of the receipts that were produced for piles had nothing to do with the case.  Major Crossman paid me no money on account of the coffer dam.  $300 were paid by me to plaintiff on account of the coffer dam on the date of contract; the other $100 was paid on account of stone that was never supplied.  79 piles have not been accounted fort.  What he did to the coffer dam has put me to more expense than if he had done nothing at all.

By Mr. Harwood: - I have not been paid for the coffer dam except for piles.  The piles that were short were given to him but I cannot say he used them.  I got orders to stop the work in August, the reason was that the soil was soft.  That was the first complaint I heard.  I owed him $150, and told him I would give him the promissory note for $1,100, the money to be paid when the foundation was laid.  I had a foreign overseer, but the plaintiff would pay no attention to him.  I remember writing to Major Crossman that the work was according to specification; at that time it was then under myself; I had taken it over in November.  By the contract of the coffer dam he was allowed to take away one row of piles, but did not.  I sold them as he put me to much expense.

R. H. BOYCE, sworn: - I am Engineer in the Government offices.  I made a report on the works at Ningpo.  I saw the progress of the coffer dam.  It was not according to specification.  The special faults were want of stays and ties, and proper sluices.  I made an estimate in May of the value.  I considered the piles worth $1,800, the stone $6900, and the mud and brick $100.

By Mr. Harwood: - I consider the deficiency in the coffer dam the contractor's fault.  When speaking top me he said it was according to specification.  He exercised no due supervision over the native workmen.  There was a foreign supervisor for some time.  He told me that the Chinamen would not work as they got no money.  He was overpaid for one of the contracts.  He was plaid $1,540 for consul's house, $1,746 for extra work on the bund, and $500 which must have been for land wall and the coffer dam, and $2,300 for stone work and piles, making a total of $6,086.  I think that if his overseer allows work to progress, that he sanctions it.

By Mr. Rennie: - The sole case the overseer alleged for the men not minding him was that they could not get money.

By the Court: - The Chinamen I think entitled to the amount paid to Mr. Harvie, for he has taken no trouble whatever.  The Chinamen did all that work.  Mr. Harvie denied that there was a sub-contractor.  I estimate the work and labour at $3,800.

After some brief remarks on the evidence from Messrs. Rennie and Harwood, His Lordship, acting as a jury, gave judgment for plaintioff for $1,800 and costs.

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