Skip to Content

Colonial Cases

Chang Yung-Kee v. Atkinson and Dallas, 1899

[breach of contract, building work]


 

Chang Yung-Kee v. Atkinson and Dallas

 

Supreme Court for China and Japan
Hannen CJ, 10 May 1899
Source: North China Herald, 15 May 1899


 

LAW REPORTS.

H.B.M.'S SUPREME COURT.

Shanghai, 10th May

Before Sir Nicholas Hannen, Chief Justice.


 

CHANG YUNG-KEE v. ATKINSON AND DALLAS.

   This was an action brought by plaintiff, a building contractor of Shanghai, against Messrs. Atkinson and Dallas, civil engineers and architects of Shanghai, for breach of contract in respect of building work ordered.

   Mr. T. Morgan Phillips (Messrs. Drummond and Phillips) appeared for the plaintiff, and Mr. H. P. Wilkinson (Messrs. Wilkinson and Parkes) for the defendants. 

   Mr. Phillips at once opened the proceedings by reading the Petition and Answer, which were as under:

   [1.] - The plaintiff is a Chinese subject and is a building contractor residing at Shanghai.

   [2.] - The defendants are British subjects and are architects practicing at Shanghai.

   [3.] In or about the month of October 1897 the defendants ordered certain drainage, cementing, plastering and other work to be done by the plaintiff in or about a house then being built near the Sinza Road.

   [4.] - The plaintiff proceeded with the said work and completed the same in a workmanlike and satisfactory manner.

   [5.] - In or about the month of February, 1898, the defendants paid to the plaintiff the sum of Tls. 450 on account of the said work.

   [6.] - On the 13th July 1898 the plaintiff furnished to the defendants his account of charges for the said work done by him showing a sum of Tls. 1,161.26 to be due to him after giving credit for the sum of Tls. 450 aforesaid the charges made for the said work being fair and reasonable and in accordance with the rates then current in Shanghai.

   [7.] - The plaintiff has demanded payment of the said amount of Tls. 1, 161.26 from the defendants, but they have refused and still refuse to pay the same.

   The Plaintiff therefore prays:

   [1.] - That the defendants may be ordered to pay to him the said sum of Tls. 1,161.26 together with interest on the said sum at the rate of 8 Tls. per cent per annum from the 15th day of July until judgment.

   [2.] - That the defendants may be decreed to pay to the plaintiff his costs of suit.

   [3.] - For such further or other relief as the nature of the case may require.

ANSWER.

   [1.] - The Defendants admit paragraphs 1 and 2 of the said Petition.

   [2.] The Defendants deny paragraphs 3,4, 5, 6 and 7 of the said Petition and in further answer thereto say as follows:

   [3.] - The Defendants were not at the time set out in paragraphs 3, 4 and 5 of the said Petition practising together as architects at Shanghai.

   [4.] - On or about the date alleged in paragraph 3 of the said petition Brenan Atkinson, one of the above named Defendants, architect to and Agent thereto duly appointed and empowered of Rhoderick McNeill Angus Campbell of Shanghai aforesaid hired engaged and employed the plaintiff to do and perform certain work as a contractor in and upon a  house then in course of construction at Shanghai aforesaid the property of the said Rhoderick McNeill Angus Campbell at and for such price and remuneration to be paid by the said Rhoderick McNeill Angus Campbell to the plaintiff and in such sums and at such times as the said Brenan Atkinson should by his certificate in writing direct.

   [5.] - The plaintiff thereupon agreed with the said Brenan Atkinson Agent for the said Rhoderick McNeill Angus Campbell as aforesaid to do and perform the said work in consideration of the said payment and remuneration to be paid as aforesaid.

   [6.] - The plaintiff thereafter did execute and perform the said work to the satisfaction of the said Brenan Atkinson.

   [7.] On or about the date alleged in paragraph 5 of the aid Petition the said Brenan Atkinson as Agent as aforesaid of the said Rhoderick McNeill Angus Campbell paid to the plaintiff the sun of Tls. 450.

   [8.] - On or about the 15th day of December 1898 the said Brenan Atkinson fixed the remuneration then due and owing to the plaintiff by the said Rhoderick McNeill Angus Campbell at the respective sums of Tls. 400 and Tls. 160 and gave to the plaintiff signed certificate in writing to that effect.

   [9.] - The said Brenan Atkinson on the 22nd day of March certified that the sum of Tls. 297.12 the balance payable to the Plaintiff by the said Rhoderick McNeill Angus Campbell for work done and performed as aforesaid was due and payable. The signed certificate to that effect of the said Brenan Atkinson is hereto annexed.

   [10.] The plaintiff has never save through his legal adviser demanded from the defendants or either of them payment of the sum of Tls. 1,161 or any sum.

   [11.] - The defendants therefore pray:

   (1) - That this suit may be dismissed.

   (2) - That they do recover their costs of suit.

   Counsel continuing said that it was disclosed from the answer that at the time the contract was entered into Mr. Dallas was not a partner of Mr. Atkinson and consequently the name of Mr. Dallas was excluded from the case.

   The facts seemed to be extremely simple as also the issue involved. His client who had been carrying on his business in Shanghai for a considerable time as a most respectable man and had been several times employed by the Municipal Council. It was in that way he believed that he first of all became acquainted with Mr. Atkinson, for at that time Mr. Dallas was in the employment of the Municipal Council and he asked him to communicate with Mr. Atkinson who said he might be able to put some work in his way. Accordingly some time about the end of 1897 Mr. Atkinson ordered the plaintiff to do certain work in connection with a house then being built for Mr. R. M. Campbell in Sinza Road, and the work he was correct in saying was drainage - subterranean drainage that was as distinguishable from surface drainage. This work was ordered about the end of 1897 and was completed before the end of February, 1898, and at this time the defendant, Mr. Atkinson, made a payment in respect of this work of Tls. 450 leaving a sum then due to the plaintiff for the work executed of somewhere about Tls. 160 or Tls. 170.

   At that time the plaintiff was told by Mr. Arkinson that he has other work for him to do and this balance was left as a sort of guarantee that the plaintiff should carry out well, this additional work for the defendant. About that time additional work was ordered by the defendant, chiefly paving, and he thought cementing and surface drainage also in connection with this house being built for Mr. Campbell in the Sinza Road. The work was proceeded with and, as was admitted by the defendant, was done satisfactorily, being completed about July 1898.

   It was about this time that the plaintiff submitted his account to the defendant, Mr. Atkinson. Mr. Atkinson said he was busy at the time and could not then attend to it. He, however, did not pay the amount due to the plaintiff. Subsequently the plaintiff saw Mr. Atkinson many times and constantly asked for payment of the amount due to him. He was put off from time to time by Mr. Atkinson, and subsequently in December, some four or five months after the work had been completed and after the account of the plaintiff had been submitted to Mr. Atkinson.  Mr. Atkinson, as disclosed by his pleadings, gave certificates for the work to the plaintiff for Tls. 400 and Tls. 160 and then told him to apply to Mr. R. M. Campbell for payment. This, as the plaintiff would tell them, was the first he ever knew of Mr. Campbell in connection with the business or the contract whatever. However, he took the certificates to Mr. Campbell personally. Mr. Campbell received them and placed them with a letter in an envelope which he entrusted the plaintiff to deliver to the defendant.  This was done but he disclaimed any connection with the matter.

   Subsequently Mr. Atkinson refused to pay or to admit that the plaintiff had any claim against him; if he had he must bring the matter into Court. Accordingly after consulting his legal advisers the plaintiff had brought the matter into Court. 

   As His Lordship would see by the answer it was admitted that the work had been done to the satisfaction of the said Brenan Atkinson but it was averred that the defendant was acting as the agent of Mr. Campbell and as such was not the principal in the matter. Thus the onus was of course upon the defendant to show that he was acting as gent for Mr. Campbell. Primarily he was liable.  He gave the order for the work to be done and it was for him to show that he was acting as agent for Mr. Campbell and so gave the order; and, moreover, not only acting as agent but that he actually gave the order as agent for Mr. Campbell.  It was evident that there was some dispute between Mr. Campbell and Mr. Atkinson and he thought it would have been better to have introduced Mr. Campbell as a third party, so that the whole matter could be finally determined.

   Mr. Wilkinson said he thought it was only right to say that her was instructed to state that Mr. Campbell had as a matter of fact made arrangements in regard to the two certificates which had been mentioned.

   Mr. Phillips said that this was the first intimation of the kind that he had received.

   His Lordship asked if it was necessary to go into a question which was practically settled, and suggested an adjournment. He remarked that as Mr. Campbell had agreed to pay the greater part of the claim it would be wiser to adjourn the case for a week with a view to a settlement.

   After a little discussion Counsel on either side accepted the suggestion and the further hearing was adjourned until the 18th inst.

 

Source: North China Herald, 22 May 1899

LAW REPORTS.

H.B.M.'S SUPREME COURT.

Shanghai, 18th May

Before Sir Nicholas J. Hannen, Chief Justice.

CHANG YUNG-KEEE v. ATKINSON AND DALLAS.

   This was a case adjourned from the previous week with the object of a settlement being effected.

 [Not transcribed.]

  Counsel proceeded to read the printed portion and also a press copy of the matter written in, with the object of showing that Mr. Atkinson was the accredited agent of Mr. Campbell. Mr. Campbell had written several letters to his client complaining about the time occupied in the construction of the house and asking him to use every effort as architect to advance completion.

  His Lordship commented upon the absence of Mr. Campbell, who could testify to the relative positions of the parties.

  In accordance with this opinion the further hearing was adjourned till Saturday morning.

 

Source: North China Herald, 22 May 1899


LAW REPORTS.

H.B.M.'S SUPREME COURT.

Shanghai, 20th May.

Before Sir Nicholas J. Hannen, Chief Justice.

CHANG YUNG-KEE v. ATKINSON.

  The hearing of this adjourned suit was resumed, Mr. Morgan Phillips appearing for the plaintiff and Mr. H. P. Wilkinson for the defendant.

  Mr. R. M. Campbell was called and in reply to Mr. Wilkinson said he was the owner of the house which formed the subject of the action, Mr. Atkinson being employed by him as the architect and who also prepared the plans and estimates. He entered into a contract with Loong Fee, a Chinse contractor. There had been differences between him and Mr. Atkinson, Certificates by Mr. Atkinson had been presented to him and had been paid. The house had not been completed by Loong Fee, and he had made complaints about it. Loong Fee was not still going in with the building.  Witness had seen him, but it was a long time ago. There was work in connection with underground draining which involved the making of roads, but that work was outside Loong Fee's contract. He took no steps in connection with this drainage, for Mr. Atkinson made him a tender for the construction of it, at an estimated cost of Tls. 1,000, that was Tls. 300 for the roads and Tls. 700 for the drainage. It was perfectly understood that the work should be done at that price. There was a specific contract drawn up by Mr. Atkinson and witness entered into it with the plaintiff. 

 Witness considered himself bound to pay Tls. 1,300 in all for the work, because he had agreed to pay Tls. 300 more. He first paid Mr. Atkinson Tls. 450, and then Tls. 717.75, together with Tls. 33.72 a payment to the Council. It was not the fact that he wanted more roads done than could possibly be done for Tls.  1,300. 

 Witness could not remember whether his first idea was that he should have the drains done by the Municipal Council. As to the cheque of Tls. 450, which he gave to Mr. Atkinson, he considered that it would be paid to the man who actually did the work. 

 Cross-examined - He did not know how the money was to be disbursed, or whether Mr. Atkinson would retain a part of it. He never entered into a contract with any one in respect of electric bells, gas fittings and other appointments in the house, but he had paid Mt. Atkinson money in respect of them. He sent a cheque for Tls. 45 for a chicken house to Mr. Atkinson, with instructions that it should be paid to the parties who built it and asking for a receipt from the recipient.  Mr. Atkinson refused the cheque stating he was not a compradore.

 The amount of Tls. 2.700 was put down as the cost of electric bells, fixing water supply, gas connections, and witness paid that amount by two cheques. Witness did not know the plaintiff in any transaction; he dealt with Mr. Atkinson only. He did not think that he had made any payment on certificates in respect of the drainage works. All the details upon the tender were done by Mr. Atkinson or through him. Something had been said about Mr. Atkinson not having made a profit in consequence of the fall in exchange.

 The defendant, cross examined by Mr. Phillips, said there was a contract entered into between Mr. Campbell and Loong Fee for the actual construction of the house for Tls. 19,250, from time to time witness gave certificates which Mr. Campbell met. Mr. Campbell did not enter into any other contract except one for making roads. The plaintiff asked witness if he would see Mr. Campbell so as to get some money on account and he subsequently saw Mr. Campbell on the subject and obtained a cheque for Tls. 450. Towards the end of July he commenced to have difficulties with Mr. Campbell. In further cross examination the defendant said that the reason he delayed giving the plaintiff a certificate was because the work had not been performed to his satisfaction, and in Mr. Campbell's interest for which he was agent, he required some reduction in the bill.

 Mr. Wilkinson said he would call Mr. Algar who would show the local custom between architects and contractors.

 Mr. A. Algar was sworn and gave in detail what was the usual method locally in the construction of houses, drawing up of contracts, etc. He stated that the Municipal Council usually undertook the construction of drains. It was within his (witness') knowledge that the plaintiff had made drains for the Municipal Council. He had frequently known money to be advanced to contractors for work that was not finished by the owners, notably in the case of work proceeding during the Chinese New Year.

 Mr. Gilbert Davies, Architect, of Shanghai entirely concurred with the testimony given by the previous witness.

 Mr. Arthur Dallas said that the plaintiff was a drainage specialist, and on his (witness') recommendation Mr. Campbell employed him. He told the plaintiff that Mr. Campbell was a very particular man and that the drainage works  would have to be done very carefully. The plaintiff had been engaged by witness on other works since that of the drainage in question.

 Cross-examined - The plaintiff had been paid for the other works he had done. Witness had no pecuniary interest in the matters in dispute.

  At this stage the case was adjourned until Thursday.

 

Source: North China Herald, 29 May 1899

 

LAW REPORTS.

H.B.M.'S SUPREME COURT.

Shanghai, 25rd May

Before Sir Nicholas J. Hannen, Chief Justice.

CHANG YUNG-KEE v. ATKINSON AND DALLAS.

   The hearing of this case was concluded.

   Mr. T. Morgan Phillips (Messrs Drummond and Phillips) appeared for the plaintiff, and Mr. H. P. Wilkinson defended.

   Mr. James Ambrose, architect, gave evidence as to the usual procedure followed in the case of a person instructing an architect to build a house as well as the practice between principal, architect, and contractors. It was generally impossible to give an exact estimate to the employer for such things as drains, bells, and grates. An approximate estimate was usual and without any contract being entered into between the employer and the architect

   Cross-examined by Mr. Philllips - For such things the architect usually selected a contractor, and the bills would be paid direct by the employer.

   Mr. Wilkinson summed up the case for the defendants, contending that there was nothing in the case to take it out of the ordinary custom here, or to show that the defendants were acting in any way other than as agents of Mr. Campbell in employing the plaintiff to do the work. The plaintiff knew all along the work was being done for Mr. Campbell, and he must have known that according to the custom here, the defendants were simply architects, acting as the agents of Mr. Campbell, and who would be remunerated at the usual rate of 7 per cent upon the cost of the house.

   Mr. Phillips, on behalf of the plaintiff, contended that the defendants had no authority from Mr. Campbell to enter into a contract with the plaintiff for this extra work, and in no sense were they the agents of Mr. Campbell.

   His Lordship in giving his decision said:

   I think I must give judgment to the plaintiff. We need not talk about a lurid light being thrown upon anything, or any disgraceful transactions - all the transactions appear to me to have been very natural. It is not in the least unnatural that disputes should arise between an owner and architect; that occurs often enough, - the wonder is when it does not. But we have here to consider simply the position of the plaintiff and the defendant.

   Now, in a society at home, where the contractor is the successor in a business of a long line of persons who have always had knowledge of how business is being carried on, where the architect confines himself strictly to his own particular, and more exclusive business of drawing up plans and  suggesting the manner of building, there is no doubt we must take it the architect and the owner all know exactly their position. But that is not the case here. I do not suppose that any contractor here ever for one moment thinks where the money is to come from; as long as he is paid he goes and does certain work and as long as the work is paid for it never enters his head to think who is actually liable. He simply does the work that he is told to do.

   Very well, that is the position in which the plaintiff is. He is told by Mr. Atkinson to do certain work that was to a certain extent indicated by Mr. Dallas, whose evidence was quite consistent with his having told the man that the work was to be done for Mr. Campbell and the man having undertaken that he was told this simply as an indication of the place where it was to be done. He did not in so many words express, nor did it probably at the moment mean - for Mr. Atkinson was not at the moment thinking how the money was to be paid - "This work has to be done for Mr. Campbell, and Mr. Campbell will pay you, and nobody else." That is not what he said, nor is it likely what the plaintiff understood; he simply knew he was going to do work for Mr. Campbell, he did not, I suppose, think he was exactly going to pay him.

   What happened after? After he has done the work a certain portion is paid for by Mr. Atkinson, so that the plaintiff if he considered it - but I do not suppose he did - would think that he was really being paid by Mr. Atkinson. But then accounts are got out, and I do not agree with Mr. Phillips in saying that it was rather a discreditable thing to issue the certificates; one sees exactly the explanation. Mr. Atkinson was beginning to have disputes with Mr. Campbell, and he saw there were difficulties arising, and so, although it had been the habit of these contractors to send in their accounts headed to the architect, he directed him for the future to send them in to Mr. Campbell, because he was not going to take any more bills addressed to him because he foresaw there were going to be complications. That seems to me to show that the plaintiff had before sent in his bills directly up to that time to Mr. Atkinson.

   Then we have Mr. Campbell's own evidence, which is the contention of Mr. Phillips, that Mr. Atkinson was not his agent but was practically the contractor himself. It seems to me that it would be a most unfortunate thing - certainly an unfortunate thing for the plaintiff - if I were to hold that Mr. Atkinson was not liable. Whether Mr. Atkinson can show that he was entitled to make this contract and bound to pay the money on it and recover it from Mr. Campbell, that is a thing I suppose I shall have to enquire into at further length here, but at any rate for the present I think the plaintiff is entitled to recover from Mr. Atkinson, who ordered the work, and from whom the man had a right to expect payment and actually did receive part. Under the circumstances I think Mr. Atkinson is o]

liable to the plaintiff.

   I do not think it need in any way be a precedent as between contractors and architects, because it is very simple for the architect to say "Send in your bills addressed to the owner," just in the way Mr. Atkinson did eventually. 

   Now we come to the amount, and I think Mr. Phillips and Mr. Wilkinson might agree to that. At the time that Mr. Atkinson signed the certificate he believed Mr. Campbell was going to pay. He had therefore no bias, and therefore I think that the amount stated in the certificate can be taken to be the amount due to the plaintiff.

   Mr. Wilkinson said the amount was Tls. 160.

   His Lordship said there would be judgment for the plaintiff for that amount, and he would assess the costs at $250, including everything.

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