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Colonial Cases

Zua Yay Dong v. Groom and Main, 1876

[breach of contract]

Zua Yay Dong v. Groom and Main

Supreme Court for China and Japan
24 February 1876
Source: The North China Herald, 24 February 1876




Shanghai, Feb. 18th

Before Sir EDMUND HORNBY, Chief Judge.


   Mr. H. BROUGHAM MILLER appeared for the plaintiff.

   Defendants conducted their own case.

   Mr. MILLER briefly opened the case by stating that it was a claim for payment of Tls. 453, with interest, balance of account for work done under a contract some time ago, the facts of which were set forth in the petition. ...   His LORDSHIP reserved judgment.


Source: The North China Herald, 2 March 1876




Shanghai, Feb. 24th.

Before Sir EDMUND HORNBY, Chief Judge.


   To-day, in the above case, His LORDSHIP gave the following judgment:-

   The difficulty I have in deciding the present case, in a way that will certainly do justice between the parties, arises out of the conduct of the defendants.  I am by no means certain that the plaintiff has properly fulfilled his contract; in all probability he has not; but if the defendants had, as I think they ought to have done, refused to do anything with the wells until they had satisfied themselves that they were built according to contract, the difficulty would not have arisen. 

   The plaintiff was bound apparently to build them in a certain way and to the satisfaction of the defendants, and he is secured by a third person.  It is probable, although he swears to the contrary, that he did not build them within the time specified; but then some alterations in size were made, which circumstance nullifies to some extent the arrangement as to time.  If, instead of refusing payment, the defendants had insisted on an examination of the work done, and it had been found that it was not properly done, they might have properly refused payment until it was done to their satisfaction; and if plaintiff refused to do it, they might have done it themselves and charged him and his guarantor with the cost.

   But it is too late now, after nine months, and the wells have been used, to seek to avoid payment on the ground of the insufficiency of the work.  It is all very well to say that the w eels may be examined now.  The answer is, that if the defendants were dissatisfied in May and June last, they ought to have been examined then.  The work was to be done to their satisfaction, and under their immediate supervision, and they had liberty to reject improper materials and bad work.  They say they did exercise this liberty, but if they are now right in saying that the work is bad and the materials used improper, it is clear they did not sufficiently, in their own interests, supervise the work as it proceeded.  Still it was open to them, when the wells were ready for use, to object to the work, and the work ought then to have been examined. As it is, the Court cannot now do for the defendants what which they might have done, and had the opportunity of ding, for themselves.

   I am not satisfied with the account for extras.  I shall, therefore, give simply a verdict for the balance due on the contract - viz., Tls. 300, less the amount Tls. 32, of the bill for cement paid by the defendants; with $50 costs.

   I can find nothing in the contract which shows that the contractor was to find brass cocks or taps.

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