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Colonial Cases

Chen Pao Shan v. Allum, 1879

[building contract - jurisdiction]

Chen Pao Shan v. Allum

Supreme Court for China and Japan
French C.J., 1879
Source: The North China Herald, 28 March 1879




Before G. FRENCH, Esq., Chief Justice.


   Plaintiff appeared in person.

   Mr. DRUMMOND appeared for the defendant.

   Proceedings were taken in the Mixed Court in January last in respect of the claim in the present action, and judgment was then given against the defendant, who refused to comply therewith on the ground that he was a British subject.  In the meantime defendant's name has been prominently before the public anent the question of the registration of British subjects.

   Plaintiff's petition was as follows:

I, the undersigned, beg to petition your Lordship about the following case:-

   I am a builder in Shanghai.  In the 9th month of last year, a British subject, Mr. Kum Allum, asked me to build some houses, 27 in number.  At the time an agreement, or contract, was made between him (Kum Allum) and me (the undersigned).  It was witnessed by Chen Chen-chung and Chee Tur-fa.  The amount agreed in the contract for building the said 27 houses was Taels 1,120.

   After the contract was made, he asked me to build seven more houses, the price for which was taels 643.41, but no contract was made.  The reason for not having any contract was that he promised me at the time he would pay for all the houses together when they were finished; and also a greenhouse was erected, the price of which was taels  This was also not included in the contract.

   Altogether the amount was Tls. 1,777.1.6.4.  I received Tells. 1,000. All the work stated in the contract was done properly, and also the work not included in the contract above-mentioned.  I asked him several times to pay the remainder (the sum of Tls. 777.1.6.4), but I am sorry to say he refused without giving any reason, so I sued him in the Mixed Court.  There were several sittings, and the defendant (Kum Allum) refused to pay for the work not in the contract.  At last the Mixed Court gave judgment that the defendant should pay Tls. 300, but he still refused; so I was directed by the Mixed Court to sue him in the Supreme Court.

   In answer to the said petition, Kum Allum, the defendant, says as follows:

  1. - As to the first paragraph of the petition, the defendant admits the statements therein except the statement that the amount agreed in the contract for building the 27 houses in the petition mentioned was Tls. 1,200, the fact being that the amount agreed in the contract was for building not only the said 27 houses but also certain outhouses and for executing other works.
  2. - As to the second paragraph of the petition, the defendant denies that after the contract was made he asked the plaintiff to build seven more or any more houses, the price for which was Tls. 643.41 or any other sum, and he admits that no contract was made.  The defendant admits also that a greenhouse was erected, but he denied all the rest of this paragraph.  The erection of the said greenhouse was included in the contract.
  3. - As to the third paragraph of the petition, the defendant admits the statement that the plaintiff received Tls. 1,000, and also the statement as to the proceedings in and of the Mixed Court, and he denies all the rest of this paragraph.
  4. - The defendant further says that the work comprised in the contract has not been completed, and that part of such work which has been done has not been properly done.
  5. - The defendant retains the sum of Tls. 120, which, under the contract, is payable to the plaintiff on completion of the work, but he is ready to pay the same on such completion.
  6. - All the work alleged to have been done by the plaintiff is included in the contract.
  7. - The contract was made through Chen Chen-chung and Chee Tur-fa, as middlemen, and it contains a provision that should the work not be done according to it the matter was to be referred to the middlemen for settlement, so that the parties might have no dispute.
  8. - The contract contains also a provision that when the plaintiff should require payment of money under it, he should go to the defendant with the middlemen to receive the same.
  9. - The plaintiff did on all occasions of payment under the contract go to the defendant with the middle men to receive the payments, but he has never gone with the middlemen to apply for or receive the balance which he claims under the contract.
  10. 0.    - The defendant is willing that the subject matter of this suit should be referred to the middlemen under the contract, and he hereby offers to abide by and perform any decision they may come to.

   His LORDSHIP said he noticed in the petition that there was a contract in the case.  If it was in writing he should like it to be produced.

   Mr. DRUMMOND replied that the contract was in writing.  The original one was in Chinese and he had a translation of it in English, which had been examined by a gentleman in the consulate, but it could hardly be called a verified translation.

   His LORDSHIP suggested that the gentleman in the Consulate should be called to verify it.

   JOHN NEWELL JORDAN was then called and deposed - I am acting Assistant in the British Consulate.  I have read the Chinese agreement now produced.  It is a contract between the plaintiff and the defendant, and dated 26th September and 25th October, 1878.  It would be made on any day between those dates.  I have read the contract and the translation of it now produced.  The translation fairly represents the meaning of the original contract, though it is not in good English.  The original on some places is written in language which would be only understood by a builder.  My teacher does not clearly understand some of the terms.

   CHEN, the Chinese Magistrate at the Mixed Court, at this stage of the proceedings entered the court, accompanied by Mr. C. F. R. Allen, Vice-Consul and British Assessor at the Mixed Court.

   His LORDSHIP invited Chen to a seat of the bench, saying to Mr. Drummond that he did sop as he had been told that Chen wished to be present when this case was heard.  It was needless, he thought, for him to say that Chen would take no part in the judicial determination of the case.

   Mr. JORDAN was then further examined as to the technicalities in the contract, and he explained that he had perused it assisted by his teacher, who understood the terms better than he did.

   At the suggestion of his Lordship, it was decided that the teacher should be called, and he was accordingly sent for.

   His LORDSHIP said he was informed by Mr. Allen, that Chen, the Mixed Court Magistrate, did not understand the contract.

   Mr. DRUMMOND - He ought to know something about it, considering that he has given judgment on it already.

   Mr. ALLEN - Chen says each man to his own trade.

   Mr. DRUMMOND - It seems evident that he gave judgment without understanding the facts of the case.  While the messenger is away for Mr. Jordan's teacher, I should like, your Lordship, to ask Chen one question.  Mr. Allen has given me a copy of a memorandum from him with regard to this case, but it does not state specifically the pint I want to know.  It is this.  The case was originally entered in the Mixed Court, and Chen having exercised jurisdiction over the defendant and given judgment against him, I should like to know if he is willing to give information whether he has abandoned jurisdiction over him and directed the plaintiff to come to this Court. 

   Plaintiff states in the last paragraph of the petition, "I was directed by the Mixed Court to sue him (the defendant) in the Supreme Court.  I should like to know whether it is an actual fact that plaintiff was directed by the Mixed Court to sue the defendant in this Court, when the Mixed Court has already exercised jurisdiction over him. The presence of the magistrate here supports that view to some extent, but I should like to know whether Chen admits that the defendant is amenable to this Court alone, and that the proceedings in the Mixed Court have been quashed.

   His LORDSHIP - I don't think I can ask the magistrate that question.

   Mr. DRUMMOND - Your Lordship no doubt sees my point.  The defendant may have two judgments running against him at the same time.

   His LORDSHIP - Supposing the Magistrate should say the former judgment is in force - What then?

   Mr. DRUMMOND - A very extraordinary position for my client to be in.  It may be that an attempt may be made to make him liable to two Courts.

   His LORDSHIP - As far as I am concerned, I know nothing judicially about any other judgment.

   Mr. DRUMMOND - But the plaintiff has brought it to your Lordship's notice in his petition.

   His LORDSHIP - It has been brought to my notice in the petition, but not in such a way that I have to take notice of it in order to enable me to adjudicate in the present case, and I do not intend to take the slightest notice of the parties having been before the Mixed Court.  As to your question whether the Magistrate of that Court claims jurisdiction over the defendant, the question is whether he had jurisdiction now.

   Mr DRUMMOND - That is what I should like to know.  Has he abandoned his jurisdiction.

   His LORDSHIP - If he says in Court that he has abandoned his jurisdiction, will you be satisfied?

   Mr. DRUMMOND - Yes.  He has arrested my client once, and tried to enforce his judgment in other ways, and all I want to know is whether he has abandoned his jurisdiction, because it would not be very pleasant for my client to be amenable to him and this Court also.

   His LORDSHIP - It has come to my knowledge - I did not receive the information judicially - that the proceedings in the Mixed Court have been abandoned, and that the judgment has been quashed by the magistrate.  That is my understanding of the proceedings in the Mixed Court; but, as I have said, the information has not come to me judicially.  I believe, however,   my understanding of the matter is correct.

   Mr. ALLEN - It is as you say.

   Mr. DRUMMOND - That is all I want to know.

   His LORDSHIP - What I have said is how I understand the matter to be.

   Mr. DRUMMOND - The Mixed Court decision has been quashed by consent of the Magistrate.

   Mr. ALLEN. - Yes.  The plaintiff has been told that he could get no satisfaction from the Mixed Court, and that he had better come to this Court.

   Mr. DRUMMOND - And that I understand to be quashing the decision of the Mixed Court.

   Mr. ALLEN - Yes, I should take that to be quite sufficient.

   His LORDSHIP - And the Magistrate claims no further jurisdiction in the matter.

   Mr. ALLEN - Quite so.

   YEH HEN-CHIH was then called and deposed - I am one of the teachers in the British Consulate.  I have read the Chinese agreement now produced.  It is a contract between the plaintiff and the defendant; and there are two middlemen who give security for the due performance of it.  The contract is signed by the middleman and the plain tiff.  It is not signed by the defendant.  It is not the Chinese custom for him to sign it.

   A duplicate contract was produced by the plaintiff, and this was examined by Mr.  Jordan and the witness with the defendant's contract, and the two copies agreed.

   Witness continued - The duplicate is signed by the plaintiff and the two middlemen, but not by the defendant.  There is appended to it receipts for payment on the 27th of the 10th Chinese moon of Tls. 600.  On the 13th of the 11th moon a payment was made of Tls. 100, and on the 30th of the same month there was another payment of Tls. 300.

   There are passages in the agreement which it is difficult to understand.  I do not understand some of them, owing to the technical language used.  There are terms used in the building trade which only a builder would understand.  The removal and rebuilding of three houses is mentioned in the contract, and there is the removal and rebuilding of a greenhouse.  The building of 27 houses - one lot of 21 and another of six - is also included in the contract, and all these buildings are to be constructed for Tls. 1,200.  The difficulty which I have spoken of in interpreting the contract does not extend to the building of the 27 houses and of the removal and rebuilding of three houses and the greenhouse for Tls. 1,200.  I have no doubt about that portion of the contract.

   His LORDSHIP thought this evidence narrowed the case very much.  It seemed to be simply a question whether the plaintiff had done the work or not.

   Mr. DRUMMOND considered that this evidence would put an end to the plaintiff's case.

   His LORDSHIP said it seemed that if plaintiff had done the work, he was entitled under the contract to Tls. 120 more than he had received.

   Mr. DRUMMOND said that was so, when the work was properly done.

   His LORDSHIP - Then the questions are, first, has the work been done, secondly, how has it been done?

   Mr. DRUMMOND explained that the plaintiff claimed for seven houses which were not in the contract, and the seven houses he believed would turn out to be merely outhouses, which plaintiff wished to make the defendant pay extra for.  It was a question as to what work he was to do under the contract, whether he was to build twenty-seven houses or thirty-four.  Besides the work the plaintiff had done was very incomplete, and when he made it according to contract, defendant was ready and willing to pay him.

   His LORDSHIP - then the point is whether 27 or 34 hoses have been refracted, and whether the work has been done according to contract.

   Mr. DRUMMOND - That is simply it, my Lord.

   The COURT then adjourned.

   On the Court re-assembling in the afternoon,

   CHEN PAO-SHAN, the plaintiff, was called, and he deposed that he was one of the parties to the contract produced.  Under it he was to build 27 houses for the defendant, for which he was to be paid Tls. 1,120 he was not to build more than 27 houses.  He had built them, and the work had been done well.  He had received Tls. 1,000 under the contract.  In addition to the 27 houses mentioned in the contract, he had built seven other houses for the defendant.  The building of the 27 houses was commenced on the 1st day of the 10th moon, and the additional seven houses were commenced on the 27th day of the same month.  There was no contract in writing for the extra seven houses.  Defendant simply told him to build them, saying that when they were finished he was to give him an account of the expense and he would pay him.

   A plan of the property belonging to the defendant was shown to the plaintiff, and he marked out the seven extra houses he had erected, but he was unable to mark out the other twenty-seven, and to escape from the difficulty he complained that the plan was incorrect.  It was, he said, when he went for the first payment under the contract that the defendant gave the order for seven additional houses, but the price of them was not fixed.

   His LORDSHIP asked whether every detail as to the manner in which the 27 houses mentioned in the contract were to be built, was not very precisely and carefully set out in the contract?

   Mr. DRUMMOND replied in the affirmative, and said defendant seemed to have been very particular.  There was to be one lot of 21 houses and another lot of six; and everything was minutely set out in the contract, as to the way in which they were to be built.

   The plaintiff, after the question had been put to him many times by the interpreter, admitted that this was so - 21 of the 27 houses were to be built of new material, and the other six of of material supplied by the defendant.  Six of the additional seven houses were to be two feet longer and two feet broader than the twenty-seven houses, and they were to be built in a better style.

   His LORDSHIP pointed out that plaintiff claimed about twice as much for the seven extra houses as he did for the others. He claimed Tls. 643 for them, which was about Tls. 100 per house.

   Witness, in cross-examination by Mr. DRUMMOND, said the original contract was drawn out b y the defendant, and he (witness) employed a writer to copy it out for him.  There was a clause pointing out that the contract was to be kept as evidence, to avoid dispute hereafter.  He asked for a contract when he commenced to build the seven extra houses, but defendant said it was not necessary for him to have one.  The head carpenter heard defendant says this, but he had not brought him to give evidence.  Defendant ordered him to build the seven extra houses, and promised to pay him for them.

   Plaintiff, in answer to his Lordship, said he had no witnesses in attendance. The carpenter referred to was working on the Soochow Creek, and could not attend the Court to-day.

   Mr. DRUMMOND urged that plaintiff, with the assistance of the Mixed Court magistrate, had had ample time to prepare his case.  The Court had very patiently heard the case all day, and he thought they ought to go on and call the defendant.

   KUM ALLUM, the defendant, was then called.  He deposed that the contract produced set forth all the work that the plaintiff was to do for him.  Since he entered into the contract, he had not asked the plaintiff to do any more work for him.  The contract first spoke of a lot of twenty-one houses, and then of a lot of six others, making 27 houses to be erected in all.  The plan produced showed the work done by the plaintiff, but a greenhouse and three old houses were also to be removed and rebuilt under the contract.  These were not included in the plan produced.  The twenty-seven houses were all new houses.  Twenty-one were to be built on vacant ground, and six on the site of six old houses which were to be removed.   Besides, three other old houses were to be removed and rebuilt.  All this was in the original contract, and he never entered into a contract, either in writing or verbally, with the plaintiff for work for which he was to pay Tls. 640.

   Two middlemen signed the contract, and if plaintiff did not do the work they were responsible.  He had paid the plaintiff Tls. 1,000, and there were still Tls. 120 owing under the contract, which he withheld because the plaintiff had not done the work as it should be done. There were eight gates which were made of soft instead of hard wood, and twenty of the houses had no back widows which they ought to have according to the contract.  One of the kitchens was not finished, the lane was not al all plastered, the drains had not been finished, some glass doors had not been put up, and the flooring of three houses had not been laid; also, the roof of three other houses had not been properly made, the rafters on which the planks are placed supporting the slates being too far apart, causing the roof to bend and be insecure.  Further, the lane had not been properly paved, and there are other small things that should have been done better than they have been. When the defects he mentioned had been remedied according to contract, he was willing to pay the plaintiff the balance of Tls. 120.

   When he made the three payments of Tls. 600, Tls. 300, and Tls. 100, mentioned in the contract, the middle men were present on each occasion, and he held receipts for the amounts.  He had been willing to refer the matter to the middlemen, but plaintiff had refused a settlement in that way, and plaintiff, without demanding payment of the balance of Tls. 120 in the presence of the middlemen, went and instituted proceedings in the Mixed Court.

   By his LORDSHIP - He never contracted with the plaintiff, either verbally or in writing, to do more work for him than that ser forth in the contract produced, namely the building of the twenty-one houses, the six houses, ands the three houses which he had to take down and rebuild.  Plaintiff had not built him thirty-four hoses, only twenty-seven and the three he had removed and rebuilt.

   The defendant's evidence, which was given in English, was then read over to the plaintiff.

   Defendant, in answer to the plaintiff, denied that when he made the fits payment he asked him to build more houses.

   Plaintiff took a long time to question and converse with the plaintiff. But no new facts were elicited.

   His LORDSHIP said he should not allow such an indulgence if the plaintiff had been a British subject.

   CHEN SHUEN-HSING, a tailor, who signed the contract as one of the middlemen for the plaintiff, was the next witness.  He deposed that under the contract plaintiff was to build twenty-seven houses for the defendant, and to remove three other houses from one place and rebuked then in another place.  He had seen the work done by the plaintiff, and no more houses had been built than were included in the contract.  The removal and rebuilding of the greenhouse was also part of the contract.  The plaintiff had not done the work as well as he should have done it.

   There were nine wooden gates which were made of soft wood and they should have been made of hard wood.  One kitchen had not been built at all, and the water would not run down the drains.  The plastering and paving of the lane was not proper, and the roof of some of the houses was not strong enough.  The work in many respects did not come up to what was intended by the contract.  He had been three times with the plaintiff to obtain money from the defendant.  The first time defendant paid the plaintiff Tls. 600, the second timer Tls. 300, and the third time Tls. 100, making Tls. 1,000 in all.  On each occasion plaintiff asked him to go with him to the defendant, but he had not asked him to go with him to receive the balance of Tls.  120 due under the contract.  He did not know whether plaintiff was entitled to the balance.  All he could say was that the work had not been properly done.

   By his LORDSHIP - When he went with the plaintiff and obtained Tls. 600 from the defendant, hr did not hear the defendant give an order for sever other houses to be built.  He was present all the time, and if such an order was given he should have heard it.  He had inspected all the work done for the defendant by the plaintiff.  Twenty-seven large houses had been built, and seven small ones.  The twenty-seven large houses have two rooms, one room and a small kitchen or side room; and the small houses have one room.  He pointed out the small houses on the plan.

   Mr. DRUMMOND explained that these were not houses but simple rooms or out-houses connected with the houses, and were all mentioned in the contract.  He supposed these outhouses were what the plaintiff called houses, which explained the whole thing, but they were all mentioned in the contract, and in reality no more work had been done by the plaintiff than was described there, and that he had not completed in a satisfactory manner.

   The COURT then adjourned until 10 a.m. next day.

   The hearing of this case, which was adjourned from the previous day, was resumed this morning.

   CHEN CHUN-CHUENG, the witness who was under examination when the Court rose on Tuesday, was recalled, and his examination continued.  He repeated that plaintiff had built twenty-seven large houses and seven small ones.  The small houses had only one room. 

   Mr. DRUMMOND again pointed out that these seven small houses were kitchens, or outhouses, and were included in the contract.

   HO AH-KUNG, the carpenter referred to by the plaintiff as being unable to attend yesterday, was next called.  He deposed that on the 28th say of the 9th moon, he heard defendant give an order to the plaintiff to build twenty-seven houses, and on the 28th day of the 10th moon he heard defendant give instructions for seven additional houses to be built.  All these houses had been built.

   By his LORDSHIP - He had not had any conversation with the plaintiff as to the evidence he was to give.  He had not talked the matter over with him since yesterday.

   His LORDSHIP, through the interpreter, told him that it was more likely he should have been believed if he had said he had spoken with the plaintiff on the matter, as it was absurd that a plaintiff would call a witness without knowing what he was to prove.  At all events Englishmen generally knew what their witnesses were to say before they were called, and it was natural to think that the Chinese did the same.

   Witness then explained that the plaintiff asked him this morning at attend the Court, and all he said to him was that he was to speak the truth.

   He was then asked to point out the houses on the plan which had been built by the plaintiff, and he marked out the outhouses or kitchens as separate houses.

   His LORDSHIP said the evidence of this witness was more favourable to the defendant than it was to the plaintiff.

   In answer to further questions by his Lordship, witness admitted some of the defects in the hoses as described in the evidence of the defendant.

   CHEE TAH-FA, the second middleman on the part of the plaintiff, was the next witness.  He said that he was a mason, and was conversant with the work done for the defendant by the plaintiff.  Nothing had been done that was not in the contract.  The work had not been properly completed, and plaintiff was not entitled to the balance due under the contract until the defects were remedied.

   By his LORDSHIP - He was not now in the service of the plaintiff. He was working for him when the houses were built for the defendant.

   By the Plaintiff -0 He did not know whether seven extra houses, not mentioned in the contract, had been built or not.  The houses which had been built had not been finished according to contract.

   This concluded the evidence, ands the Court adjourned.

   The Court re-assembled at two o'clock.

   CHEN, the Mixed Court Magistrate, produced a plan b of the work done by the plaintiff, which he was anxious for his Lordship to see.  It was the same plan, we believe, that the plaintiff had produced in the morning and which, in reply to his Lordship, he said he had made on Tuesday night.  His lordship on this occasion refused to accept it.  Now he looked it over, but asked no questions respecting it.

   His LORDSHIP explained that the plaintiff's only witness, the carpenter, had fully described in the morning how he made up thirty-four houses, and he spoke of a kitchen and two side rooms as houses, and a room over the gate at the entrance to the lane as a house also.  He would like to know whether these were included in the contract.

   Mr. DRUMMOND, with the assistance of the defendant, pointed out that all these items were stipulated for in the contract, and included in the sum of Tls. 1,120 to be paid the plaintiff.

   His LORDSHIP asked Mr. Drummond whether he had anything further to say before he gave judgment.

   Mr. DRUMMOND replied that he had very little to say.  The case was simply a trumped up one on the part of the plaintiff, who was trying to obtain payment twice over.  That was the real point in the case.  Undoubtedly the plaintiff had built a number of outhouses, kitchens or rooms, or whatever they liked to call them, besides the 27 houses mentioned in the contract, but they were all carefully and distinctly provided for in the contract, and included in the sum of Tls. 1,120, and the balance of the amount the plaintiff could have as soon as he completed the work in a satisfactory manner.  Plaintiff had stated that he had built seven more houses in addition to those in the contract, but defendant denied it, and all the witnesses, including the one called by the plain tiff, supported his (defendant's) position.  In reality no more work had been done than was ordered by the contract and was covered by the one sum of Tls. 1,120, and plaintiff was entitled to no more than that sum, and so soon  as he competed the work satisfactorily he would be paid the balance owing him pg Tls. 120.

   His LORDSHIP, in giving judgment, said the action was brought by the plaintiff against the defendant to recover Tls. 7771.6.4 for work alleged by the plaintiff to have been done by him for the defendant.

   The plaintiff said part of the work done was under a contract written in Chinese, by which it was agreed that the defendant should pay him Tls. 1,120 for the work done under the contract, and that the rest of the work was done by him for the defendant at the defendant's request, but that in respect of this extra work where was no contract whatever, either in writing or verbally. What the plaintiff said with respect to this extra work was that there was simply an order on the part of the defendant to do the work, and that when it was done, he, the plaintiff, would be paid for it by the defendant.

   The defendant, on the other hand, said he had ordered the plaintiff to do no other work for him than that in the contract, and that in respect of the work done for him  under the contract, part had been completed, part had been improperly done, and the rest not done at all. 

   To determine the question in dispute between the parties, it was necessary to see what were the provisions of the contract with regard to what the plaintiff had to do.  It had been said that the contract, which was in Chinese, was hard to make out, that it was difficult to understand some parts of it; but his Lordship thought they might easily arrive at the main point to be decided upon by the contract.

   The contract first of all provided for twenty-one houses to be built.  But he would first point out that the plaintiff had said he arranged with the defendant to build in all thirty-four houses for him, that twenty-seven of these houses were agreed to be constructed by him for the defendant under the contract, and that in regard to the other seven of the thirty-four houses they were not comprised in the contract, and that he build them as extra work to be paid for beyond the sum of Tls. 1,120, which was the amount mentioned in the contract.

   First of all in the contract mention was made of twenty-one houses to be built by the plaintiff for the defendant.  It then mentioned three old houses which were to be taken down and rebuilt, which made 24 houses.  Then, the contract further said that the plaintiff had to rebuild six other houses for the defendant, increasing the number actually to be built to thirty. Then there remained four other houses, according to the plaintiff's story, still to be accounted for.  Upon the evidence his Lordship did not think there seemed to be any substantial dispute between the plaintiff and the defendant as to the work actually done by the plaintiff for the defendant.

   The work appeared to have been done in three places: first, in the Chefoo Road, then in a place west of the Chefoo Road, and the third place was on the other side of the Creek.  He thought that the evidence on the part of the plaintiff and of the defendant was at one in  regard to that; therefore, upon the whole evidence, there seemed to be no substantial variation between the two accounts as to the amount of actual work done; it was simply as to whether the work done was comprised in the contract or not.  As he had pointed out, there seemed to be thirty houses provided for on the face of the contract.

   Mr. DRUMMOND drew his Lordship's attention to a note at the bottom of the third page of the contract, which said "in all twenty-seven houses and other things."

   His LORDSHIP repeated that in the contract there was mention of twenty-one houses, six houses, and three houses, making thirty houses in all, and there were four to be accounted for according to the plaintiff's statement, and he thought he could account for them.  The plaintiff's own witness, when asked to account for the thirty-four houses, distinctly called a kitchen a house over and over again, and if that were so it would increase the total number to thirty-two.  Then there was another extra kitchen outside the large house, and there was aroma at the top of the entrance gateway, and both these had been called houses, which made up the number to thirty-four. That seemed to him to be the solution of the whole matter.  As he had said, there did not seem to be any substantial variation between the evidence given on the part of the plaintiff and that given on the part of the defendant, as to the actual work done by the plaintiff; the variation between them was as to the mode in which the work was done, and as to any work being left undone.

   Mr. DRUMMOND thought the variation between the parties was whether all the work done was included in the contract, or whether there was a separate order for a portion of it.

   His LORDSHIP said he was speaking of the variation on the evidence.  The plaintiff no doubt urged that there was a separate order and the defendant denied it.  The plaintiff had said that a specific order was given by the defendant on a particular occasion, and in the presence of a witness whom he had called; but that witness, when asked about it, said that he had no recollection of the order being given, - he did not hear it.  Defendant made a statement expressly denying it, and he had further said that a portion of the work contracted to be done had not been done at all and that with regard to the work actually done a portion of it had been improperly done, and that when all the work was properly done he was prepared to make the payment of the balance due under the contract.

   Upon the whole circumstances of the case there must be judgment for the defendant, with costs.  He might ass that he was very clearly of opinion upon the evidence that no other work was done by the plaintiff for the defendant than that comprised in the contract.

   Mr. DRUMMOND thought it was impossible for any reasonable man to come to any other conclusion.

   CHEN wished to know what was to be done with respect to the Tls. 120 due under the contract.

   Mr. DRUMMOND replied that the moment the plaintiff competed the work satisfactorily according to the contract, the Tls. 120 would be paid him.  Practically the middle men were referees between the parties under the contract, and when they passed the work the plaintiff would be paid the Tls. 120.

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