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Colonial Cases

Ehlers v. Ferguson, 1890

[landlord and tenant]

Ehlers v. Ferguson

Supreme Court for China and Japan
Rennie CJ, 1-2 December 1890
Source: North China Herald, 5 December, 1890

Shanghai, 1st December.
Before Sir R. T. Rennie, Chief Justice.
  This was an action by Mr. August Ehlers, a merchant, carrying on business in Shanghai, against Messrs. A. Anderson, A. J. How and R. Ferguson, the trustees of Mrs. M. Gilmour, to recover Tls. 354.91, expenses incurred through leakage of the roof of a godown in Hankow Road, owned by defendants and occupied by plaintiff.
  Mr. R. E. Wainewright appeared for the plaintiff and Mr. C. Dowdall for the defendants.
  Mr. Wainewright having briefly opened the case.
  Plaintiff, examined by Mr. Wainewright, said - I am a merchant carrying on business in Shanghai. I first took the premises in the Hankow Road on lease on March 125th, 1887. In March, 1888, another lease, the present one, was drawn up. My attention was never called by the landlords to the construction of the godown roof. It began to leak in May, 1889. I drew the landlords' attention to this in the same month. I afterwards received a letter dated June 28th, from defendants, stating that the roof had been examined by Mr. S. J. Morris, who was of opinion that the damage was caused by my own neglect in not keeping the discharge pipes clear, the heavy rains which occurred in that month thus not being carried off.  I replied that I could not agree to this, and that I had already removed some of my goods from the  godown, for the expense of which I should hold defendants liable. (I produce a sketch of the roof, showing the leaks.)
  Mr. A. Anderson next wrote me on behalf of the defendants that they would not be responsible for damage caused by removing goods in order that the repairs to the roof might be carried out. In June and July I removed some goods to the Associated Wharves, as I had no other godown, and Mr. Anderson, to whom I applied, could not let me have the use of a godown. Assuming Mr. Morris is correct in stating that the repairs were begun on 15th August, it could have been done earlier. The repairs could have been begun at the end of June. They were partly carried out at the end of August, but at that time the roof still leaked. I considered them properly completed at the end of October, and at that time I brought back my goods.
  I sent in a claim for storage and coolie hire on Oct. 12, and asked Mr. Anderson to deduct it from the quarter's rent then due.  He asked me to pay the rent then, and said he would examine the claim afterwards. I gave him a letter to the wharf manager, in order that he might check the items of my charge, and I paid the rent. On Oct. 28th I received a letter from defendants stating they could not admit the claim, and that the repairs were begin on Aug.15th and completed on Aug. 28th. In further correspondence I pointed out that they were bound to keep the roof in repair in accordance with the terms of the lease, and I again asked them to pay me the claim, Tls. 394.10.
  They replied that they were willing to meet any fair and reasonable charge, but that according to the surveyor's report all that was due was one-fourth of a fortnight's rent of the godown. They were also willing to pay the costs of removing such bale goods as would have sustained damage by leakage. As a matter of fact goods have been damaged by leakage to the extent of Tls. 8 but I do not claim compensation for them. After defendants had referred me to their solicitors, I had again to write to them to report further leaks. I deny defendants' statement that the leakage was caused by my allowing men and animals to walk upon the roof, and by my neglect to keep the discharge pipes clear.
  Cross-examined by Mr. Dowdall -  I do not remember that the roof leaking during the first two years. The first leak that I noticed was in May, 1889.  I first began to remove goods, on account of leakage, at the end of June. Between May and the end of June I saw Mr. Morris, the landlords' surveyor, several times. He came to see me about the repairs, and I showed him where the leaks were. There were some leaks before the heavy rains in June, and when the heavy rains began the roof was leaking very badly. When I went on the roof there was no water standing on it. The gutters were quite full. I began removing goods on June 25th and went on doing so until September 127th. When the repairs were begun the godown was one quarter to one third empty.
  Theodor Meyer, examined by Mr. Wainewright - I have been in the employ of the plaintiff for five years. I remember the circumstances connected with the leakage of the godown roof. The compradore reported that certain goods would have to be removed, on account of the leakage. This began in May, 1889, before the heavy rains of June. I made out the particulars of the claim. It contains charges in respect of goods which had to be removed from the godown, and of others which had to be kept at the wharf because they could not be brought back to the godown, on account of the leakage. We did not remove more goods in June because we did not take away any more than was necessary.  On 22nd August we had to take away 330 cases in order to allow the workmen to go on with the repairs. In making out the account I did not charge the actual time at which the first goods were taken to the wharf. The charge began six weeks later, that time being allowed for the landlords to carry out the repairs.
  (Mr. Wainewright here explained that he had directed witness as to the principle on which the account was to be made out. The charge was at first larger, but the six weeks had not then been allowed to the landlords.)
  I live in the plaintiff's premises. The godown roof was never used for any business purposes. I do not think the leaks were caused by stoppage of the discharge pipes, because some of the leaks were at higher points on the roof than the pipes. I have occasionally seen some of Mr. Anderson's cats on the roof, and also a small dog.
  Frederick Montagu Gratton, examined by Mr. Wainewright - I am an architect and an A.R.I.B.A. In December of last year I inspected the plaintiff's premises and made a report thereon which I produce.
(The report was read by counsel, and showed that the roof was of unusually low pitch and constructed of unusually small timbers. The edges of the corrugated iron were inefficiently fixed and water would be admitted in consequence. Nothing to the detriment of the roof appeared to have been done by the tenant. The godown was not in a proper condition for the storage of goods which might be damaged by water. Painting or repairing the places where the leaks were would not be permanently satisfactory. The proper course would be to remove the present roof and replace it by one with larger timbers and increased slope.)
  By constant attention the roof might have been kept watertight. I do not know the age of the building in question. A corrugated iron roof would last 20 or 25 years, but I do not think such a roof as this one could be kept in repair so long without very expensive repairs. It would take about two months to efficiently repair the roof. Such repairs as I saw could have been easily done in a month. I do not think an ordinary tenant on coming into the premises in 1887 would have seen that there was anything radically wrong about the roof. The material was not in bad condition.  Leaks as marked on the plan could not be caused by a stoppage pf the discharge pipes, assuming that there was no parapet wall. There was no parapet wall when I saw the roof.
  Cross-examined - The special precautions necessary with a roof of such low pitch had not been taken. The screws were loose and the joints improperly fixed. The roof is one which is more than ordinarily susceptible to traffic if there were any on it. Four men beating a carpet upon it would not be good for a roof of this description.
  Kiu Pay-san, compradore to the plaintiff, said that as far as he knew, no use had been made of the godown roof at any time. Witness then gave dates at which cases of colours had been sent away from the godown in consequence of their becoming spoiled by rain coming through the roof.
  Tao Kwei-lin, house-boy in the employ of plaintiff, said he had sometimes been on the godown roof to fetch articles of clothing which had been blown off the verandah, and he had once gone on the roof to shake a small piece of carpet. He had never seen anyone else on the roof. There were dogs in the house, but none of them had been on the roof.
  Mr. Wainewright here put in further correspondence, in which was a letter on behalf of the defendants offering Tls. 50.
  At the close of the case for the plaintiff, the hearing was adjourned till next morning.
2nd December.
  The hearing of this case was resumed, Mr. R. E. Wainewright again appearing for the plaintiff and Mr. C. Dowdall for the defendants.
  Mr. Dowdall, in addressing the Court on behalf of the defendants, said the roof was of distinctly defective construction, and certainly the defendants did not say anything about this to the tenant when the lease was renewed in 1889, but there was no breach of faith in this, as, the tenant having been in occupation for some years probably knew as much about the roof as the landlords. It was settled in law that a landlord in merely letting premises to a tenant did not warrant them as fit for the use the tenant was expected to make of them. In this case the plaintiff had been in occupation some years before, and it was impossible to think that the plaintiff did not know the nature of the roof when he took the renewed lease in 1889. The theory of the defence was that after the exceptionally heavy rain in June, 1889, two of the discharge pipes connected with the gutter having become blocked, the water flowed over the inner flange of the gutter into the godown. The plaster ceiling then existing would prevent anyone from seeing where the water had actually come in, and probably the plaintiff was mistaken in saying the leaks were at the spots he had marked on the sketch plan.
  Arthur Anderson, one of the defendants, examined by Mr. Dowdall, said - The godown is about ten years old. There have been continued application for repairs since plaintiff's occupation of it. The godown roof was planned in accordance with Mr. Gilmour's instructions that there should be no obstruction of the drawing-room windows. In June, 1888, Mr. Gilmour drew my attention to a man beating a carpet on the roof, and said the roof could not be expected to keep in order if it were used for such purposes. I once saw a dog on the roof. When I was applied to for compensation, I said that anything that was right should be paid; but I never committed myself to promising a definite sum. The rental value of the godown is about Tls. 25 or Tls. 30 a month. The cost of repairs after the heavy rains of June was Tls. 354.
  Samuel John Morris, civil engineer - I have designed and erected works in different parts of the world for thirty years. I have built six large godowns in Shanghai with galvanised iron roofs. I have charge, as regards repairs, of over forty godowns. I have had charge for about four years of the godown occupied by plaintiff. The roof is nothing more than a shed roof. There is a heavy skylight, evidently put in as an afterthought; and the great weight of this on the weak roof causes settling from time to time. The pitch is too little, being only 1 in 12 1/2; I usually build godown roofs with a pitch of 1 in 4 or 5.
  Mr. Wainewright interposed, and said it would save time if these details were omitted. He took it that the landlords admitted their liability, and all the plaintiff contended for was that the landlords did not execute the repairs promptly enough and did not do them efficiently.
  His Lordship thought they could take the evidence on this point more generally.
  Examination continued - There is a verandah pressing on the roof, which would account for some leaks. The roof was in the usual state of repair before the heavy rains in June. Afterwards I found two discharge pipes choked, and marks on the parapet wall and roof, to which the water had risen, so as to flow over the lead gutter. There must have been an immense weight of water on the roof. The exact position of the leaks could not have been determined from inside, as there was a ceiling. There were marks on the roof as if men and dogs had been walking on it.
  After my examination I advised the removal of the parapet wall and gutter, so that water could not accumulate as it had done. I commenced altering the roof on August 15th and finished ion the 28th. I had made the usual repairs immediately after the rain, and then suggested the alterations, which would have begun sooner had it not been for bad weather. The godown was half, and sometimes more than half , full while the alterations were going on. Towards the end all the goods were taken out, for which I did not see any necessity. After the alterations were finished there were some slight leaks; but it is impossible to exactly fit new corrugated iron to old. I should say the repairs deprived the tenant of the use of half the godown for less than a month.
  Cross-examined - The matter in the pipes had been washed into them by the rain. The water had risen an inch and a half above the top of the gutter. I told plaintiff that if he liked I could do the alterations bit by bit, so that he could still have the use of the godown; and he consented.  I did not tell him that I could do the work much more quickly if I had the entire use of the godown.
  James Ambrose, architect and builder - I have practised in Shanghai nearly thirteen years. I examined the roof in question on the 29th ult. It is faulty in construction and would not carry off water well, on account of its flatness. It appears to be in fairly good condition.
  Plaintiff, recalled, started in answer to his Lordship that he was not told, before the alterations were begun, that the parapet wall was to be removed. He did not think the pipes were absolutely choked up; the water did not run off because there was so much of it.
  By Mr. Wainewright - Between the end of August and the middle of November the roof was still leaking at the skylight and two other places - so much, in fact, that I could not bring back goods to these parts of the godown.
  Mr. Dowdall, in summing up the case for the defendants, asked the Court to take into consideration the manner in which the pleadings had been drawn up. It was alleged in them that the landlords had neglected to keep the roof in repair, whereas after the case had come into court the landlords discovered that they were charged with carrying out the repairs slowly. It was evident that the marks on a plaster ceiling would not show where the water had come in through the roof above, and therefore the supposition was in favour of Mr. Morris' theory that the water came in close to the walls by the overflow from the gutters. This had nothing to do with the state of repair of the roof but with its bad construction; and thus the landlords could not be said to be responsible for the damage through failing to keep the roof in repair.
  Mr. Wainewright, for the plaintiff, admitted that it had been shown that the landlords had failed to put the roof in repair for two months, September and October. The policy of the landlords had been not to institute thorough repairs but to keep up a continual tinkering.
   His Lordship said he was quite convinced that the roof was a shockingly bad one which could not be kept in repair without constant attention, in the words of Mr. Gratton, the plaintiff's own witness. The case was really a ridiculous one to bring into court, and had it not been that the parties on one side were trustees, who naturally did not like to make compromises, I should have been inclined to deal very summarily with it. Neither side, however, was altogether in the right. As to the alleged delay of the landlords in doing what they had done, it seemed to him that they had first executed small repairs, as they had always done, and then carried out certain alterations, which they were not bound to carry out at any special time.
  At the conclusion of Mr. Wainewright's address,
  His Lordship gave judgment as follows:
  As I observed before, this was really a ridiculous case to being into court. It could have been settled in half an hour by any fit person acting as arbitrator, and now it has taken up a great deal of time and involved a considerable amount of costs. I can understand there might have been a difficulty in referring it to arbitration, as the defendants were trustees; but it is a case in which both asides have not done all that they might have done.
 The plaintiff enters into possession of a godown with a very bad roof, remains in it for two years, and is so well satisfied with it that he takes a further lease of it. He takes it at a very moderate rent, and goes on uncomplainingly until the flood occurs on 19th June. I confess I am satisfied that the water did collect round the roof - the parapet wall keeping it in - and got into the godown. I have no doubt the greater part of the leakage occurred over the gutter and down the walls, as Mr. Morris has explained, and was more or less accidental.
  A certain amount of refuse had collected, for which the tenant may or may not be responsible. Probably in this matter the tenant was as much to blame as the landlords. The pipes having been cleared out and the water having run off the roof, Mr. Morris, the architect, "tinkers" it as he has been in the habit of doing before. He advises his principals, the defendants, that they had better take away the wall, which was a source of danger, and alter the eaves or gutters in some way. Then comes the arrangement about this being done, and it seems to rest upon the correspondence before me. No time was fixed for them to begin and there seems to be no obligation on the part of the landlords to begin at any definite date; but at the same time, with a letter before them making them aware that their tenant had already begun to remove goods with a view to the roof being taken off, they should have expedited matters as far as possible.  They may have thought that, in consequence of the repairs taking so long, the tenant was entitled to some compensation; and they offered Tls. 50. Thus the tenant appears to have thought wholly insufficient, and he makes out a bill for storage at the wharf, and porterage; but with all the explanations I have had I do not understand the principle on which it is based. It seems to have been founded upon a very arbitrary idea of the plaintiff and his counsel as to when the charges should begin and when they should terminate. At any rate, there is a claim, first for Tls. 390, and now for Tls. 350, and I have to fix the difference between Tls. 350 and the amount offered by the defendants, Tls. 50.  I consider that the defendants should have gone on with the work more rapidly than they did. I think also that if they wished to take their stand on the Tls. 50 base, they would have been well advised to pay it into court. As they did not do so, I shall give the plaintiff Tls. 100, but no costs, the claim having been made on such an arbitrary principle and the amount of it having been so much reduced.
  Judgment for the plaintiff for Tls. 100, without costs.

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