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Colonial Cases

Wong-Zun Tai v. Goodfellow, 1889

[building work]

Wong-Zun Tai v. Goodfellow

Supreme Court for China and Japan

Rennie CJ, 19 July 1889

Source: North China Herald, 23 July 1889

LAW REPORTS.

H.B.M.'s SUPREME COURT.

Shanghai, 19th July.

Before Sir Richard Rennie, Chief Justice.

WONG-ZUN TAI v. WILLIAM GOODFELLOW.

   This was a claim of Tl. 408.10 for some extra work put into some houses built by the plaintiff, a contractor for the defendant under a contract.

   Mr. Drummond appeared for the plaintiff.

   Mr. Wainewright appeared for Mr. Browett, who was too unwell to conduct the case himself.

   The plaintiff's petition is as follows:-

  1. - The plaintiff is a Chinese subject carrying on business at Shanghai as a builder and contractor.
  2. - The defendant is a British subject and is in the employment of the Shanghai Gas Company.
  3. - In pursuance of a contract entered into between the parties on the 22nd day of Feb. 1888 the plaintiff agreed to build and has since built for the defendant two semi-detached houses near the Rifle Range in Hongkew.
  4. - In addition to the work done under the said contract the plaintiff at the request of the defendant has done certain extra work and has provided and used certain extra materials in and about the construction of the said houses.
  5. - The amount for the wok done and materials supplied under the circumstances set out in the last preceding paragraph is annexed to this petition and amounts to the sum of Tls. 408.10.
  6. - The plaintiff has applied for payment of the said sum of Tls. 408.10 but the defendant has not paid the sum.

The plaintiff therefore prays:-

  1. - That the defendant may be ordered to pay to the plaintiff the said sum of Tls. 408.10 with interest at the rate of 8 per cent till payment.
  2. - That the defendant may be ordered to pay the costs of this suit.
  3. - That the plaintiff may have such other and further relief as the nature of the case may require.

(Signed) W. V. DRUMMOND, Counsel for Plaintiff.

PARTICULARS OF PLAINTIFF'S CLAIM.

  Tls.
To raising foundation wall of main building and servants' quarters 88.00
New windows to roof and platform with hand rails 59.00
Filling up ditch, &c., 45 fongs of mud 27.00
Stone cope and wooden railing to boundary wall (25 ft. long) 00.00
2-6-in walls to verandah 30.00
10 pairs of different size doors and windows 12.00
Fixing figures glass to 2 arched openings 60.00
2 joists 07.00
180ft drainpipe 20.00
110ft boundary wall 09.00
3 cesspool with stone covers 65.00
10ftr brick drain with stone covers 15.00
90-ft V drain to main building 09.00
70ft V drain to servants' quarters 03.50
2 stone sinks to servants' quarters with iron grating

00.60

 

Total 408.10

 

Answer.

  1. - The defendant admits the first four paragraphs in the petition.
  2. - In answer to paragraph 5 of the petition the defendant admits the items of the particulars of the plaintiff's claim to the extent and amount set forth in schedule "A" hereto annexed, but with regard to the items set forth in schedule "B" hereto annexed the defendant denies any liability in respect pf the same on the ground that they represent work which according to the terms of the contract dated the 22nd day of February 1888 and made between the plaintiff and defendant the plaintiff was bound to perform.
  3. - And for further answer to the plaintiff's petition and by way of set-off or counter-claim, the defendant says that certain portions of the work done and materials used in and about the construction of the said two houses have since construction proved defective.
  4. - That the defendant has had the said two houses inspected and has been informed that it would be necessary to expend the sum of Tls. 375 at least in order to remedy the defects existing in and about the constriction of the said two houses.
  5. - That such defects were not perceptible when defendant took possession of the said houses buy have become apparent recently.
  6. - That by the hereinbefore mentioned contract made between the plaintiff and the defendant the plaintiff guaranteed the said houses for a period of one year from the date of completion and that such period of one year has not yet expired.

The defendant therefore prays:-

  1. - That the plaintiff may be ordered to pay to the defendant the sum of Tls. 155.90 being the amount of defendant's counter-claim less the amount admitted by defendant as being due from him to plaintiff as shown by Schedule "A" together with the whole costs of this suit.
  2. - That the defendant may have such further and other relief as the nature of the case may require.

(Signed) HAROLD BROWETT, Counsel for Defendant.

   Mr. Drummond, in opening the case for the plaintiff, pointed out that, under Rule 53, the defendant should have filed particulars of his set-off.  The contract referred to in the petition was written in English, and although his client had signed it, he had done so in ignorance of the fact that it contained any sort of guarantee that the building should remain in repair for a year after its completion.

   His Lordship said it was not for him to encourage Chinese contractors in not reading and understanding the contracts they entered into.

   Mr. Wainewright said that he was in a position to prove that plaintiff brought his own interpreter, who fully explained to him the provisions of the contract.

   Mr. Drummond then read a letter which he had received from Mr. Browett on the 11th of April enclosing a cheque for Tls. 111.10 in settlement of the matter.  Plaintiff, however, would not accept that settlement, but the letter proved that at that date defendant was willing to settle at that figure, although now he counter-claimed for a much larger amount.  He would now call,

 John Myrie Cory - I am an Architect and fellow of the Royal Institute of British Architects.  On 12th April I was employed by the plaintiff to examine the two houses.  I went over the various items in the contract and examined the workmanship carefully.  I produce the ground plan of the building.  In my opinion the items charged in the plaintiff's claim are reasonable in amount and are not work that should have been included in the contract.

   I have examined the contract and workmanship done under it, and I am of opinion that the workmanship was as good as could be expected under the contract.  The price was I think very low.  I noticed some defects in the construction when I visited the work. Some of the woodwork had considerable shrunk, but that I consider must have been expected considering the price agreed upon.  The work generally was rather rough, but there was no other defect.

   Cross-examined by Mr. Wainewright - I read over the contract carefully before I visited the houses.  I only went there once.  I only examined on of the houses, that occupied by Mr. Goodfellow.  The plaintiff was with me and showed me the ditch that had been filled up.  Judging from the plan I do not think the words of the contract about raising the ground cover this work.  The plans were given me by the plaintiff.  I do not think drains are included in the contract.  I think that any important matter not mentioned in the specification or shown on the plan must be treated as extra work and paid for extra.  I think anyone who could draw plans and specifications ought to be able to form an idea as to whether the price was reasonable or not.

   By the Court - I should say that damage arising between 11th and 24th April from the shrinking of woodwork would not be the fault of the contractor.

   Wong-zun-tai, cautioned - I am a builder and contractor and have been in business here as such for the last ten years.  I recognise the contract I signed. Mr. Goodfellow first read over a draft of the contract and I subsequently, three days afterwards, signed another copy which was not read over to me.  When I signed it I did not know whether there was any clause about a guarantee.  Sometimes after work is concluded I give a guarantee which, however, only refers to the roof.  Sometimes it is a verbal guarantee, sometimes it is a separate document.  The houses I agreed to build were to be cheap.  Mr. Goodfellow said he could not afford the price for a fist class house.  I made a plan, but Mr. Goodfellow did not like it, so I go a man to make another for which I paid Tls. 10-.  Mr. Goodfellow was satisfied with that one. My claim against defendant as set out in the petition is correct.

   Cross-examined by Mr. Wainewright - I furnished Mr. Goodfellow with a tender for the work, the amount of the tender was Tls. 4.140 which was subsequently increased to Tls. 4.225 and for that sum I contracted to build the houses.  I wanted more, but the defendant cut me down.  I showed a friend of mine, a clerk in Mr. Morrison's and Gratton's office, the rough draft of the contract.  He can understand English and he explained the contract, but he did not mention any guarantee to me.  Mr. Goodfellow did not tell me he wanted first-class wood.  During the course of construction, he asked me to put in another joist.  He said he should like a foreign architect to see the work - I made no objection.  Mr. Goodfellow told me that in places that were not seen, I need not put in good wood.

   This concluded plaintiff's case.

   Mr. Wainewright then called

   Samuel John Morris - I am an Engineer and Architect of over 30 years' experience.  I have examined the houses, the subject of this action.  I was asked to look at them by Mr. Goodfellow.  My opinion is that both in material and workmanship they are inferior.  The upper floor has sunk about an inch, and the dining room floor also.  This I should say is the result of bad work; the doors and windows don't fit, the walls are out of plumb; the wood is very much mixed, not all Singapore wood. The pillars on the verandah are not all hard-wood.  In my opinion the work and material were no so good as Mr. Goodfellow might have expected for the price.  The price of material was very cheap at the time.  It would cost between Tls. 350 and Tls. 400 to put the building in the state it ought to be.  I should certainly understand that under that contract the contractor should put in drains.  A house cannot be said to be finished without drains.

   Cross-examined by Mr. Drummond - I am a Civil and Mining Engineer, not am Architect by profession.  I should say that the sinking of the floor about an inch would indicate bad workmanship.

   Re-examined - I think the window frames and doors have shrunk to an undue extent.  The contractor replaced some of them at my suggestion.

   The Court adjourned at noon, till 9.30 a.m. tomorrow.

Source: North China Herald, 27 July 1889

LAW REPORTS.

H.B.M.'s SUPREME COURT.

.  .  .   The hearing of this case was resumed this morning at 9.30 a.m.

   Robert Lowrie Smith, worn - I am a cabinet maker, employed by Hall and Holtz Co. I know the two houses owned by Mr. Goodfellow.  I inspected the one occupied by Mr. Goodfellow.  I noticed that all the woodwork was very much warped, more so than one would have expected in that class of house.  The floor upstairs had sunk - it had a drop of 1 ½ inches in 4 feet.  This in my opinion, was the fault of weak beams.  The supports to the verandah were of pine, stained and varnished.  The woodwork generally was defective, and the workmanship rough.  I was present when the contract was signed - I was one of the witnesses and I read it over and explained it to the plaintiff and he said he thoroughly understood it.  I explained to him that he was to "secure" the building for a year.  He said "I savee."  I was also present when defendant explained the contract to him.

   Cross-examined by Mr. Drummond - I read the contract exactly as it is written, only I substituted pidgin English for the words of the document.  Nobody was with plaintiff at the time.

   Re-examined - I have had considerable experience of inside fittings of houses in England.

   William Goodfellow sworn - I am the defendant, and am employed as foreman fitter in the Shanghai Gas Company.  I invited plaintiff to tender for the construction of these houses.   He offered to build me a first-class house for from Tls. 4,500 to Tls. 5,000, but I said I wanted a second-class house.  There are three classes of house here - first, second and third class houses.  His first tender was for Tls. 4,100.  Ultimately I agreed with him for Tls. 4, 225. I never said he could use inferior wood in places where it would not be noticed.  I said nothing of the sort.  I expected good wood of its kind.  On the 21st. plaintiff came to my house, and his Chinese friend from Messrs. Morrison and Gratton's Office read over and explained the contract to him.  I also explained it to him and he appeared to understand.  I gave plaintiff some plans which I noticed yesterday in Court.  I find that they have been tampered with since I gave them to him; some of the windows have been rubbed out.  He bought me some plans of his own, which I did not like, but I afterwards accepted tm as far as outline is concerned.  The contract contemplated the filling in of the ditch.  I admit the two extra windows in the roof, which I am willing to pay for.  I pointed out to him that the joists were defective, I said they were smaller than they ought to be.  Shortly afterwards they gave way to a certain extent and he had to put in fresh joists and that is what he wants me to pay for now.  When I pointed this out to him he said, "maskee, that belong my pidgin, I have secure the house one year." I understood that the drains were to be included in the contract.  Plaintiff commenced putting them down of his own accord without consulting me about them.  I found the drain pipes myself.  I told plaintiff I thought it would be best to have a foreign architect to look at the work, but he said he did not think it necessary and that it would add to the expense.  I noticed him putting in some very bad wood under the tiles of the roof and made him change it.  My counter-claim against plaintiff I based upon the sinking of the flor, the cracking and bulging of one of the walls and on the doors and windows not shutting.  When I offered the cheque for Tls. 110.10 on the 11th April I was not aware of the joists having given way.  I only became aware of this in midst of May.  A Chinese contractor agreed to put the doors and windows in order for Tls. 75, but that had nothing to do with the defective joists.  I have spent some Tls. 400 on the house outside the contract altogether, which very nearly brings up the money expended on the house to the amount plaintiff mentioned as sufficient for a first-class house. I have made several endeavours to have the case settled by arbitration, but without success.

   Cross-examined by Mr. Drummond - I have had considerable experience in building, but I am not a builder by profession.  I know what work ought to be included in such a contract as this.  Things that are usual, although not mentioned in the contract, should be included.  The house was completed in August last year.  I did not observe any defect in the flooring till 4th April this year, but I had noticed the defects in doors and windows.  I was willing to do all repairs myself at that time and pay plaintiff Tls. 110.10.  I have to visit pretty well every new house that is built here, but I never knew of a new house sinking as this has done.

   By the Court - I went over the house in company with Mr. Morris and a Chinese contractor, but we did not on that occasion notice the sinking of the flooring.

   His Lordship in giving judgment said that it was evident that the contract was made at a very low rate, and consequently defendant had no right to expect anything like first-class work.  At the same time he had a right to expect decent work and the evidence went to show that the work was in some particulars well below what might reasonably be expected at that price.  He thought defendant's counter-claim was much exaggerated.  The defendant had been in occupation of the house for some considerable time before anything was said as to the sinking of the flooring; he thought defendant was not entitled to succeed on the counter-claim.

   He would allow plaintiff the Tls. 408.10 he claimed, less Tls, 189 mentioned in Schedule B.  There would consequently be judgment for plaintiff for Tls. 219.10 and costs, which he would fix at $25.

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