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Colonial Cases

Lu Tai Cheong v. Provand, 1870

[work and materials]

Lu Tai Cheong v. Provand

Supreme Court of China and Japan
15 July 1870
Source: The North-China Herald, 22 July 1870




July 15th, 1870.

Before C. W. GOODWIN, Esq.


Claim of Tls. 393 for materials and work.

   Mr. Bird for plaintiff.

   Defendant in person.

   LU-TAI-CHEONG, cautioned, said - I am a contractor; and on the  14th February was asked by Mr. Kidner to do some work for the defendant, under a contract drawn up at the time, and signed by me, though not by defendant.  This referred to work to be done for Tls. 350.  During the progress of the work Mr. Provand saw it, and made some remark about the materials being bad.  Alterations not in the contract were subsequently made. (These alterations were specified, and admitted to the extent of Tls. 43.)

   Cross-examined by defendant. - The memo. I have in my hand is made up from memory.  I make no entry of these contracts in any book.  I have never got money for work done, under Mr. Kidner as architect, without first obtaining his certificate.  The first time I called you agreed to pay me - the second time you would do nothing.  You refused to see the bill made up under the contract.  You did not ask me to reckon up all the work, and place a fair average value upon it.  I offered to take off Tls. 10.  I know that the stair "risers' are usually of 1 ¼ to 1 ½ inc wood.  Piling is put under the larger stair supports, but not under the smaller ones.  There was some wet in the house when you went in.

   Defendant wished to show that plaintiff was habitually careless and dilatory in the execution of his contracts; but questions to that end plaintiff declined to answer, except to deny that he had been knocked off a piece of work he had contracted to do for Dickinson & Co.

   Mr. KINGSMILl, called by Plaintiff's Counsel as an independent witness, worn states - I am a civil engineer, and acquainted with the value of material.  I have seen the work in dispute, and estimate it at about Tls. 389.

   By the COURT. - I saw the contract and knew the particulars of it when I made up my estimate.

   At defendant's request, Mr. Kingsmill handed him a memo. of the estimate in detail.

   Cross-examined. - I consider the work has been very badly done.  The contract was not unreasonable for good work.  As it was there should be a reduction of 25 per cent, making it under Tls. 300.  The stair risers were 3/8 to ¼ inch thick, thje usual thickness being an inch.  I would not have put a support under the stair of a common China house without piling.

   For defendant.

   Mr. W. KIDNER, s worn, states - I made the contract on deft's behalf.  It is not customary to specify the use of certain timber when the contract is for such a small sum.  It was understood that possession was to be given to Mr. Provand on th4 1st of March.  The plain tiff most certainly understood that.  If the work had been done promptly that could easily have been the case.  As a matter of fact the work was all done in the last fortnight before possession was taken.  The agreement was made on the 10th of February.  I considered the prices asked by this man were exorbitantly high.  The work is not yet properly finished, though it was practically done, however, by the 10th of April.  An alteration in the entrance, from four to six feet, would take two brickworkers a day.  Taking out a window would take another day.  (Mr. Kidner explained some matters on the plan.)  I refused plaintiff a certificate, which I should not have done if I considered the contract had been fulfilled.  Plaintiff came to me for a certificate before going to Mr. Provand for his money. 

   It is difficulty to assess bad work - work is worthless unless well done.  I recommended a payment of Tls. 200 to avoid going into Court: Tls. 100 I set down as deft's loss for tent, and Tls. 100 for the badness of the work.  Still I do not think Tls. 100 would make the work goad.  Although giving Tls. 200 deft. would still be a loser if he desired to insist on good work.  It is one of those cases where everyone must lose a little.  The work may be considered serviceable.

   Cross-examined. - I said I agreed with Mr. Kingsmill about the amount to be deducted.  I have made it come out Tls. 363.  That would leave a small profit to plaintiff.

   To the Court - That is, if the work had been done well.

   By Mr. BIRD - The work could have been done for 393 taels perfectly.  I recommended defendant to pay Tls. 200 before any legal expenses had been incurred.  He said he would offer Tls. 150.  I never offered, myself, to pay plaintiff Tls. 200; I was not authorised to do so.

... A. PROVAND, sworn, stated - I went into my house on the 11th of April.  There had been a fortnight of wet weather previously, during which time nearly all the work was done.  The house was scarcely habitable, till something had been done to finish, properly, the work undertaken by the plaintiff.  I saw him about that time, and complained to him of the unfinished state in which the work remained, but he did not send anyone to finish it.

   After hearing Mr. Provand upon the evidence which had been submitted, and the case generally, and Mr. Bird in reply;

   His Lordship made an order giving the plaintiff Tls. 250, with $25 law expenses besides Court costs.

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