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Colonial Cases

Gandaubert v. Hart and Smedley, 1871

[building contract]

Gandaubert v. Hart and Smedley

Supreme Court of China and Japan
18 September 1871
Source: The North-China Herald, 29 September 1871





(From Hiogo)

18th September.

Before C. W. GOODWIN, Esq., Acting Chief Judge.

GANDAUBERT and others,

Plaintiffs and appellants.



Defendants and respondents.

   Mr. Robinson for appellants.

   Mr. Rennie for respondents.

   Mr. ROBINSON said the appeal was from a decision of the consular Court at Hiogo, given in respect of a building agreed to be built by the defendants, Messrs. Hart and Smedley, architects, of that place, for the appellant.

   The case made by the plaintiff in the Court below was that, in November 1869, he requested the defendants to prepare a plan of a building to be erected upon some property belonging to him, forming part of a lot of land registered on the Municipal plan as lot 15.  This lot was originally bought by the plaintiff and a gentleman named Favre, conjointly, and having bought it they put up boundary stones to mark its division, and plaintiff took the part next to the street.  A plan, now before the Court, was drawn by the defendants, and bore the contractors'' signatures as being the working plan.  When  giving the defendants instructions, the plaintiff told them that he was under agreement with Mr. Favre, to leave a passage of 3 ½ feet - Mr. Favre, on his side, being under a similar agreement. His Lordship would find a passage marked on the plan of 3 feet. 

   It was the business of the defendants, as architects and surveyors of the works, to see that the plan, approved by the plaintiff, was carried out.  But instead of building according to that plan, the defendants put the house back so as to leave but one foot.  The building was finished in August 1870, and on the 1st Sept. the owner of the adjoining lot, Mr. Gray, who had bought it from Mr. Favre, discovered that an encroachment had been made, and wrote the plaintiff, putting pressure upon him, under which plaintiff compromised the matter.  (Letter read.) Supposing that no compromise were come to, and Mr. Gray had come into Court with a bill praying for the specific performance of the agreement, he must have obtained relief.  Either a compromise must have been effected or a portion of the building removed.

   He now reviewed the judgment of the Court below.  That Court had gone into some extraordinary matters about the measurement of the ground, but it appeared to him the only point was whether the defendants had agreed to build according to a plan, and, if this was altered, whether the alteration was made with the plaintiff's consent.

   The defendants had stated certain things in their answer to the petition, but had brought no facts to support their statements.  They admitted that they had designed the building, and that plans were submitted until finally approved by the plaintiff.  In the second paragraph of their answer the defendants said that they had built according to the plan, and that any alteration was made with the plaintiffs consent and approbation, but they did not say that this departure from, it, involving a breach of covenant, was submitted to him at all.  The third paragraph wass equally evasive, for by it the defendants innocently wished the Court to believe that the plaintiff asked them to curtail this passage because he had not interfered with Mr. Smedley's measuring, though present with him.  The measuring was the architects' business, and the plaintiff's [plan contained directions which they should have followed.  Mr. Smedley, moreover, was not called as a witness in the matter, and there was not a tittle of evidence to show that upon any one occasion the defendants called the attention of the plaintiff to the difficulty in which they alleged they were placed, nor that they warned him that they might have to encroach upon the 3 foot passage.    In the 5th paragraph the defendants alleged that the house was put as far forward as prudence and caution would allow, considering its close proximity to the main sewer.  He need scarcely say that what prudence and caution required should have been communicated to the plaintiff.  But an answer was simply an assertion until it was backed up by evidence, and here there was none of behalf of defendants. The evidence which did come before the Court really went to show that the house was not placed so near the main sewer, which seemed to contradict the difficulty of the defendants, as it might have been. 

   The learned Counsel then showed that the evidence in the Court below was all for the plaintiff, the defendants having called but one witness, after informing the agent for the plaintiff that they were not going to call evidence.  The plaintiff's agent, having closed his case, and being thus without opportunity to cross-examine the defendant's witnesses, objected.  He next referred to the evidence as making out the case for the plaintiff's petition, principally showing that the stipulation to leave three feet had been made, that it was possible to have carried it out, and that by the non-observance of the stipulation pressure was put on plaintiff which he did well to compromise.  Much of the evidence, however, he noticed, was unintelligible. 

   With regard to the question of damages, he thought the Court would consider what was reasonable judging of plaintiff's position after having unwittingly broken an agreement and become liable to have a portion of his house pulled down.  Mr. Gray, the contiguous owner, had made a good bargain, but so had plaintiffs, for the defendants, for he might have said, "I'll pull down the house, and come against them for the loss."  In connection with the arrangement between Mr. Gray and the plaintiff, there had not been the slightest suspicion of fraud or collusion.

   The COURT thought there was not sufficient evidence of an agreement by the defendants to leave the passage.

   Mr. ROBINSON quoted their plan and a letter addressed to them by the plaintiff, as evidence against them.  It was not likely that they had invented a 3 foot passage marked on the plan.  But the Court must go out of its way to say that there was no such agreement.  The defendants themselves had not denied it; but endeavoured to justify their non-observance of it.  The plaintiff had sworn that he did so contract, and his evidence was uncontradicted, while the confirmation of his statement was to be found in the plan.  He now referred the Court to Addison on Contracts, page 1024, which with the following four pages gave a very clear exposition of the liability of parties committing breaches of contract. 

   As to the possibility of the house being placed on the ground so as to carry out the terms of the contract, he noticed that it was in evidence the greatest breadth between the house and the sewer was 2 ft. 3 in. and the least 1 ft. 11 in., and the fundamental mistake made by the defendants and the Court below was that of imagining they would not build their foundations close up to the sewer.  They could do so if necessary, but here 1 ft. 6 in ., being already left for the passage, they did not require to go nearer than within 5 inches of the drain, which would give the remaining 1 ft. 6 in., necessary to the fulfillment of their contract.  The Court below had gone quite astray in asserting in its judgment the principle that land set aside for public purposes could not be used in setting foundations.  The principle was laid down in 18th and 19th Vic., cap. 120, and gave liberty to build not only up to but under drains, so long as there was no interference with public works.  In constructing public works, allowance was made for the man who had to build his house close up to the road.  In the present case the defendants offered no evidence as to the position of the drain, they simply asserted that they could not go nearer. The learned Counsel commented upon a few points further in the judgment of the Court below, principally upon the irregularity of the Court going to the ground and measuring it, which, he said, was equivalent to taking evidence out of Court in the absence of the parties.

   His Lordship remarked that for the purposes of understanding a question better, a judge's viewing the subject in the presence of parties might be perfectly legitimate.

   Mr. ROBINSON said here at any rate the Court's doing so had no bearing upon the question at issue, as they had not done so in the presence of the parties.  They might as well have measured the surface of the moon.  The point at issue was not the size of the ground, but whether or not defendants did leave 3 feet, and the measuring of the ground by the Court did not throw any light upon the subject.

   He now summed up his case as follows.  Did the plaintiff agree with the defendants that they were to build a house for him according to a certain plan?  Was that plan adhered to?  Did the plaintiff consent to the alteration?  There was not a particle of evidence to show either that his attention was called to the fact or that he did consent.  On these grounds, he submitted that, clearly, upon the evidence before the Court below, thje plaintiff must have been entitled to some damages, and that the judgment of that Court was both bad in law and contrary to the evidence.  The question of damages he left to the Court, to be decided upon the evidence before it, or after such further evidence as it might consider necessary.

   Mr. RENNIE, before going into the case, explained that the reason the Court below had the ground measured was because of an alteration of boundary made by Mr. Gray.  Coming to the case itself, he might say that if ever his friend had worked ably it was now, and he had succeeded in bringing a very large mountain out of a very small mole hill.  He proposed to submit that the points at issue were very small, and that the Court below had decided perfectly rightly on the evidence before it. One charge made by the plaintiff, through the evidence of Mr. Bender, was that the defendants built the hotel 16 inches further from the drain than they might have done.  The question was could the hotel have been built nearer the drain.

   His Lordship did not think that had anything to do with the case.

   Mr. RENNIE submitted that it had, for assuming that the hotel was in a particular place, and that the plans and dimensions were approved by Mr. Gaundaubert, there was no charge that the buildings were not exactly according to the dimensions stated in the plan.  The only evidence produced was brought to show that the building might have been put 18 inches nearer the drain.  He reviewed the evidence as showing that the house might have been built 1 foot nearer the drain.  The charge in the petition was that whereas the defendants were bound to leave 3 feet they had only left 1.  The building as it now stood covered the whole half lot less 2 feet.  Mr. Gaundaubert had assented to plans which he did not allege, so far as building was concerned, had not been carried out, and he was also present when the land was measured.  It would be seen that this building could not have been put on this land in the way the plaintiff said it should have been.  Supposing the house had been built up to the very border of the drain, there could only have been 2 ½ feet left.  The real point, therefore, was whether the house should not have been placed nearer the drain that it was. 

   He now referred to the judgment of the Court below, which had been so severely criticised by his learned friend, but which he thought was all that could be desired, or at least expected, from a Consular Court.  The measuring of the land was a reasonable and proper course under the circumstances.  The measurement had confirmed the one given in evidence, and showed that it was immaterial whether or not the defendants had put the building nearer the road - it would not have made the passage on the other side.  The Court below found that the plaintiff had not given notice of his agreement about the passage to defendants.  Mr. Hart in his evidence, denied that the plaintiff had done so; and plaintiff in his examination in chief, had never said a word about his having told defendants that he was bound to leave a 3 ½ foot passage.  Only in his cross-examination he s aid "when building" - not before building - "I told you, I wanted a 3 ½ foot passage."  It would be seen therefore that though Mr. Gaundaubert acknowledged that one half of the lot of land did not belong top him, he did not appear to have told Mr. Hart, nor asked him to re-measure it, but sanctioned the erection upon it of a building which it could not contain with the 3 foot passage. 

   He thought the Court would, under the circumstances, consider Mr. Hart more worthy of credence than Mr. Gaundaubert.  And when they came to enquire into other facts, it would be seen that the Court below would have done wrong to come to any other conclusion.  Mr. Favre, he believed, had stated that when he sold the half lot to Mr. Gray, the present owner, he did so for $900.  That was at the rate of $18 the tsuebo; and yet, for a passage of 4 feet wide, taken out of the same lot, the plaintiff now declared that he was obliged to pay $1,000, and that he had also to get a further strip of land for an equivalent sum.  He claimed $500 more for a certain injury, making altogether $2,500 damages.  Did not this show that the case was of a very trumped up nature?  Was it likely that any man would compel another to pay so much on account of a passage of 4 feet.  This very allegation threw suspicion on the whole case, and especially upon Mr. Gaundaubert's evidence in the matter.

   It was an invariable rule in Courts of Appeal, that where the Court below had come to a decision on questions of fact, which it could look into more particularly, the Court above would take great care in disturbing its decision.  It would be sufficient reason to non-suit the plaintiff, that the building and passage could not stand on the lot; but Mr. Gaundaubert swore, further, that his agreement stipulated for a 3 ½ foot passage while he only required 3 feet to be left. On the whole evidence, he submitted that the plaintiffs had no case in the Court below, that the judgment of that Court was justified by the evidence, and that if it were even less so than it was, the Court of Appeal would be very unwilling to disturb it.

   He now proceeded to consider a few of his friend's objections.  His friend had admitted that Mr. Gaundaubert's inconsistency between the 3 and 3 1/2 foot passage.  And would it be believed that Mr. Gaundaubert, in building this large house, if he desired that it should be 3 ½ feet from the westernmost side of his land - was it conceivable, if he wished to make that agreement binding upon Messrs. Hart and Smedley, that he should not say to them "I have got this agreement to fulfil and you must keep my house 3 ½ feet from the border?" But he waited instead for one month after the house was completed, and the land was sold by his co-owner to Mr. Gray, and then only did he make any claim.  It was about this same time that Mr. Favre sold the half-lot to Mr. Gray.

   Mr. ROBINSON said the sale was on the 10th Jan., '69, months before.

   M r. RENNIE said that would make his case a great deal better.  After this land had been sold, and whilst Mr. Gaundaubert must have known if the agreement existed, he deliberately allowed and consented to this house being placed close up to the other half lot.  Where a person had contributed by his own negligence to the misfortune of which he complained, he could not claim against the party who might be the innocent instrument of it; Messrs. Hart and Smedley said they knew nothing about the division of the lots; Mr. Gaundaubert did; and there could be no doubt the negligence was a great deal more Mr. Gaundaubert's than Mr. Hart's.  As to the drain, the evidence of plaintiff's witnesses was that the house could not have been built to give more than 1 foot 6 inches, the defendants and the Court  said 1 foot 3 inches, ands assuming even that Mr. Gaundaubert was correct, it but supported the contention that he had sanctioned an impossible house.

   He then came to the question whether Gray had any right to claim damages, and here he need simply say that there was no evidence of the right of Mr. Favre or of his assignee to sue Mr. Gaundaubert, or to compel him to pay money, or to recover it from the defendants.  And if he had, the damage was too remote to affect the defendants.  Further, the value of the strip of land required, at the market rate in Hiogo, would have been only $90 at the outside.  It was altogether through Mr. Gaundaubert's carelessness the difficulty arose, in his not having taken the trouble to investigate the question, not to instruct his skilled workmen properly.  There was no doubt the defendants did execute the house in a proper manner; the simple question was were they told to put it in a different spot from what they did, and whether, on account of the drain, they could have put it in a different spot?  He submitted, in conclusion, that the facts as proved in the Court below were entirely in favour of the judgment arrived at there, that it was the invariable practice of a Court of Appeal to uphold the judgment of the inferior Court on questions of fact, and that there had been no questions of law except the one raised by his friend with regard to building under drains.

   Mr. ROBINSON replied.  His friend had laboured very much the question of damages.  He had attempted to demonstrate the utter unreasonableness of the claim, and had said that because of this unreasonableness it should be received with suspicion.  But he need not say that a judge is not to view with suspicion the rights of parties because of the amount of their claim.  And he could see no absurdity in the amount.  It might be in his Lordship's recollection that, at the corner of Inner Temple Lane, there happed to be a small piece of ground required by two people, and that land sold at the rate of L. 800,000 an acre.  If a man could put pressure on another in such a case as this, land could not be measured by its intrinsic, but acquired a special, value.  The real question as to damage was the amount the plaintiff was liable to sustain, supposing another house or wall were built close up to his hotel, darkening the rooms, or he were compelled to pull down a portion of the building.  The architects he employed had put him in the way of suffering that injury, but he obviated the possibility of its occurring by coming to a reasonable compromise.  The right to damages he based entirely upon the agreement entered into between the plaintiff and defendants, to do what he might, in legal phraseology, term ":task work."  Addison on Contracts, page 415.  The defendants had accepted the task of erecting a house and leaving a 3 foot passage, and nothing could exonerate them from the performance of that task except the consent of their employer.  On the authority of the cases quoted by Addison, he contended that, from the moment the defendants took this work in hand, they were answerable for any injury sustained.

   His friend had said the question was, could the house be put nearer the drain?  The question, however, was could the defendants build according to their plan.  He demonstrated from the evidence before the Court that they could have done so; and, admitting his friend's figures, what justification was it to the defendants that if they could not leave 3 feet they should not leave 2 feet 6 in.? The plaintiff had instructed them to leave 3 feet; that Mr. Hart knew of the agreement plaintiff was under was proved, and the defendant's denial was perfectly futile.  If there was any difficulty in leaving such a passage the defendants should have found it out and warned the plaintiff.  What would have been the consequences, if they had acted as skilful workmen and had done so?  The house might have been made smaller, or the plaintiff gone to Gray, and said "I want another foot of ground," and who could doubt that he would have got it?  The defendants deceived the plaintiff into believing that his orders could have been executed, and at the last moment put him into the position of being obliged to come to terms with somebody else.

   The plaintiff had proved every single fact legally necessary.  He he proved the instructions given, and the breach, that he never assented to that breach, and the damage he had sustained therefrom.  The whole case was complete, there was no flaw in it, and the only question was the amount of the damage, which he left to the Court.

   Sept. 28th.

   Judgment was delivered as follows.

   In November 1869 the plaintiff (appellant) requested defendants to draw a plan for building an hotel on lot No. 15 of the Foreign Settlement at Hiogo.  A plan was drawn and approved by plaintiff, by which it appears that the west wall of the building was to stand at a distance of 3 feet from a line presumably intended to represent the boundary between No. 15 and the other moiety of that lot.  The plaintiff was with Mr. Smedley, one of the defendants, when the building was marked off.

   The adjoining land belonged to Messrs. Guiraud, Favre & Co. or to one of then, and it appears that the plaintiff had previously entered into some kind of agreement with Mr. Favre that a passage should be kept, between any building erected on plaintiff's ground, or any building on Mr. Favre's ground of the width of 7 feet, of which 3 ½ were to be taken from one property and 3 ½ from the other.  Mr. Favre sold his half to a Mr. Gray, and by letter dated 31st December 1869, Guiraud, Favre & Co. informed Gray of the agreement, and the plaintiff signed his name to this letter as a confirmation thereof.  Gray purchased the ground.  The building on plaintiff's premises was completed in August 1870, and it was subsequently found that a space of one foot only had been left between the wall of the boundary line of the two properties.  Upon this, Mr. Gray, the purchaser, threatened the plaintiff with proceedings before the proper authorities, to compel him to compensate him.  A compromise was agreed to, and the plaintiff, in order to satisfy Gray, took a lease for ten years of a strip of land contiguous to his property measuring 120 feet by 4, together with another piece, at a rant, for the whole, of 200 dollars a year.

   The plaintiff them claimed damages against defendants for alleged non-performance of their contract, and laid his damages at $2,500.  The Court below found that the plaintiff was not entitled to recover, and gave the defendants their costs, and against this judgment the plaintiff appeals.

   Without endorsing all the reasons given by the court below in its judgment, I think it to have been perfectly well founded.  Whether the agreement with Gray were a nullum pactum need not be enquired, but at all events he considered it of little importance, as he approved of a plan which contemplated leaving 3 feet, and not 3 ½ .  It was actually after he had approved of this plan that he signed his name to the letter in which Messrs. Guiraud Favre & Co. informed Mr. Gray that a space of 3 ½ feet was to be reserved.  As he was present at the measuring out of the building, if he really laid any stress upon the alleged engagement, he ought to have specially called the attention of the builders to it; whereas he sanctioned a plan which would prevent him carrying out the previous understanding with Mr. Favre.

   If then he has sustained any damage from the building being placed at only a foot from the boundary of his land, such damage has arisen from no transgression of the contract entered into by the builders, since, had they given 3 feet space instead of one, he would have been in exactly the same condition so far as this agreement was concerned.  Any proceedings of Mr. Gray against the plaintiff would have been the result of his own default. 

   But what was in fact the contract entered into? We have the plan approved by the plaintiff, and which shows a distance of 3 feet between the wall of the building and the boundary line of the two half lots.  There is not written agreement explanatory of this and it appears by the evidence of the plaintiff himself that he was with Mr. Smedley when the building was marked off.  If any alteration from the plan was made, therefore, in this respect, the plaintiff was a party to it.  I think there is sufficient evidence that the leaving a three-foot space from the wall to the boundary formed an essential part of the contract, and whatever damage or inconvenience the plaintiff may have sustained is the consequence of his own negligence.

   The judgment of the Court below must be upheld, and the respondents are entitled to their costs of this appeal.

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