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Colonial Cases

Kinn v. Kiddle, 1871

[breach of contract]

Kinn v. Kiddle

Supreme Court of China and Japan
6 February 1871
Source: The North-China Herald, 8 February 1871





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

Feb. 6th.


Claim of $149.85.

   Mr. Cowie for plaintiff.

   Defendant in person.

   Mr. COWIE opened the case for the plaintiff.  He said - I regret having to bring this small case into Court, but the manner in which the defendant treats all attempts to effect a settlement left no other alternative to the plaintiff.  The particulars are as follows.

   On 5th December last, Mr. Kiddle contracted with the plaintiff for the building of a boat.  At that time a written contract was entered into, which contained a specification showing the materials to be used, the dimensions to be followed, and the time under which it was to be completed - eighteen days.  My client completed it within the stipulated time, the last day being the 21st Dec., on which day he delivered the boat to Mr. Kiddle, who returned it as not built according to contract.  As there is a written contract your Lordship may think it strange that I have not declared upon it, but as it contains the condition that the work should be done to the satisfaction of the paymaster in charge and the carpenter of the yard, and this condition has not been fulfilled, my client's course is to sue for value of labour and materials supplied.  The petition accordingly is that the plaintiff sues for $149.85, as money payable to him by the defendant for work done and materials supplied (as per list appended), at defendant's request; and that the plaintiff has frequently applier  for payment, which has been refused.

   The defendant has put in no answer to the petition, and I do not know what defence he may set up. But I will proceed to prove the contract, the performance, and the materials used.  It may be said that there is no fault found with the construction of the boat, but with the style; but as my client was to make a boat of certain materials after a certain style, I submit that with the fault of that design he has nothing top do.  If the design resulted unsatisfactorily that was the fault of the defendant.

   The Court asked if Mr. Cowie was going to set up a contract different from that which was in writing.

   Mr. COWIE said he was not.  He held that his client had performer all material parte of the written contract, but it contained a condition precedent to completion, which prevented him from suing upon it, and he therefore did so for materials supplied.  But he made use of the contract to show the dimensions followed and the materials employer in the construction of the boat.  He would now call evidence and adduce the law in support afterwards.

   A-KINN, cautioned, stated - I am plaintiff in this action.  I entered into an agreement with the defendant to build a boat, and that agreement was written by the carpenter of the defendant.  The agreement contained the dimensions of the boat and the description of the material. (Agreement handed in.)  It is signed by me.  I built according to the dimensions and materials specified; and while the boat was being constructed defendant came three times to inspect the work, and his carpenter came almost every day. They raised no objection to the manner in which the boat was being built, nor to the materials used.  I hand in a list of prices, being the reasonable and ordinary ones for material and labour. 

   The boat was finished on the 29th of the 11th or intercalary Chinese month.  After it was completed the defendant sent and took delivery, but returned it the same day.  I went next day to him for payment, but he refused.

   Mr. COWIE said he might here remark, with reference to the survey certificate approving the work, that the case on which he founded was that of Morgan v. Birney, 9 Bingham's reports 672.  The effect was that the certificate was necessary previous to suing under the contract.  The case was also set down in Chitty.  It would not have been necessary to follow this course had it been required from the defendant alone, but it was required by the defendant and his carpenter.

   HENRY MAINLAND, s worn, said - I was a ship's carpenter for the Kiagnan Arsenal and now in Russell & Co.'s service.  I have had considerable experience in boat building.  The contract entered into in this case has been shown to me by the plaintiff.  I went myself to his house, and compared the build of the boast with the specifications.  The breadth and depth are precisely the same, the length differ to the extent of an inch and a half or two inches. The model and the boat correspond almost exactly.  I never heard of any one demanding accuracy to a model to a hair's-breadth.  I have seen the charges made, and I think on the whole they are fair and reasonable.  I have heard the objection raised by defendant that the boat rolls very much.  I had her in the water this day week, and tested her capabilities; being a new boat she is very light, and as we had short oars she rolled slightly but with longer oars she would have been quite steady. I was surprised that she rolled so little. According to the model from which she was made she could not have been better.  I could find no faulty with her according to the specification.

   Cross-examined by defendant. - If I had contracted to build a boat to those dimensions, I would put her under the head of a fast gig.  This boat would do well with a crew used to her, but to take a crew out of a broad beamed boat, with heavy oars, and put them into her she might roll a good deal.

   Mr. COWIE did not find that there was any stipulation made in the contract that the boat should be a fast-pulling one.

   Mr. KIDDLE said it had been entered in another agreement between the plain tiff and himself, drawn up before the one in Court, but which he had not with him.  It might be sent for to the Yard.

   Mr. COWIE observed that of such an agreement his client had no copy, and he should object to it being now taken in.

   His Lordship said if defendant relied on the other contract he should have produced it.  The one then in Court was the only one which he could now consider.

   Cross-examination continued - I don't think the boat very crank, and she did not roll so much as I understood at first.  If I were building such a boat I would make her a little flatter in the bottom.  If I had got dimensions of the same kind I would have built the boat according to them, whether I liked her myself or not.

   First witness recalled. - I produce a model made by me and handed to the defendant, and to which he agreed. The boat is exactly the same.

   Defendant, sworn, stated - I am paymaster in charge of the Naval Yard here.  It was distinctly understood and agreed, in the presence of witnesses, that this boat was to e a fast-pulling gig, to compete with any boat in the harbour, say, in point of speed, and that there should be room for no more than two sitters in the stern sheets.  The boat is made to hold six at least, which room should never be in a fast pulling boat.  On trying the boat I found she had n o stability whatever, and she was not built either to my satisfaction nor to that of the carpenter of the Yard.  The latter is not here, having been invalided, but I have called a European carpenter, belonging to the vessel of war in the harbour, who says she is not according to the dimensions in the contract.

   Cross-examined by Mr. COWIE. - I said the boat has no stability whatever, which arises from its construction.  I find no fault with the materials.  The mistake could not have been ascertained from the model beforehand.

   To the Court. - I do not that that from the specified dimensions the boat should roll.

   To Mr. COWIE. - From the bad construction of the boat, the instability arose.  I cannot say more explicitly.  The fast pulling was agreed to on a written and verbal agreement, in presence of witnesses.

   SAMUEL HOBBS  , sworn, said - I am a carpenter's mate on boar H.M.S. "Hornet."  I have seen the boat in question, and made a measurement of it, which I have here - length 28 feet 2 in.; breadth; 4 ft. 7 ½ in.; depth 2 ft 2 in.

   Mr. KIDDLE said that when he came for his money the man had, in presence of witnesses, offered to take $140 for the boat, when the price was $150, which showed that he did not believe $150 to be its value.

   Mr. COWIE said that as Mr. Kiddle had again come forward, he would now, on behalf of plaintiff, hand in a letter which he had received from defendant, setting forth the terms of the agreement entered into.

   The last witness, Hobbs, in answer to plaintiff - If I had built this boat, I should not have allowed so much room in the stern sheets nor so much depth, but a flatter bottom.

   To the Court. - If I had a contract I would abide by the dimensions.  If the breadth were greater in this boat, unless at the bottom, it would not have helped its stability.

   Cross examined by Mr. COWIE. - I measured the boat this morning at the landing place. I made no mistake and am sure of them.  I have built boats, not from models, we make these ourselves, but from dimensions given me.  The man could have given the boat more floor from the same measurements, by carrying the beam lower down, without making the actual depth greater.

   Witness explainer on the model how this could be done.

   To Mr. Kiddle -  I do not know that there is any difference between the boat and that model - this being the first time that I have seen the latter.

   His Lordship considered that the plaintiff had not materially differed from the specification given him, and that having substantially fulfilled his contract he was entitled to the price.  The two persons to whose satisfaction the work should have been don were not able to give an opinion at once upon it - but the absence of the carpenter should not be allowed to disadvantage the plaintiff, while the defendant would have to show reasonable ground for dissatisfaction with the performance of the contract, which, on the evidence before the Court, he had failed to do.  Finding for plaintiff, with costs, $25.

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