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Colonial Cases

Ho Jui Ting v. Lagerholm, 1911

[construction contract]

Ho Jui Ting v. Lagerholm

Swedish Consular Court, Shanghai
Uden, 11 April 1911
Source: The North China Herald, 15 April 1911

 

SWEDISH CONSULAR COURT.

Shanghai, April 11.

Before T. UDEN, Esq., Acting Consular Judge.  Mr. W. VAN NORMANN, Assessor, and Mr. HUGO VAN HEIDENSTAM, Deputy Assessor.

HO JUI-TING v. C. Y. R. LAGERHOLM.

   In this case, in which Mr. S. E. Strumansky represented the plaintiff and the defendant had conducted his case in person, the following judgment was delivered:-

JUDGEMENT.

    This is a claim to recover a balance of money Mex. Dollars 4,590 alleged to be due to the plaintiff for earth work done in 1906 at Tientsin together with interest at 7 per cent per annum and costs of this suit under certain conditions. The agreed facts of the case are the following:-

   On February 27, 1906 the parties to this suit made an agreement, whereby the plaintiff contracted to bring about 15,000 Chinese fang of earth filling from outside the Russian Concession at Tientsin and to put this filling on the ground between the Russo-Chinese Bank's godown and the Chinese Engineering and Mining Co.'s yard as indicated by the defendant.  The plaintiff bound himself to fill not less than 800 fang per week, the work to commence as soon as possible and to be in full swing not later than March 9, 1906.  Payment was to be made once a week, after measurement, at a total price including cost of earth digging and transport at Mex. 0.90 per fang.  At the weekly payments only 75 per cent of work done would be paid for; when the whole contract had been carried out the balance would be paid.

   In October 1905 the site above referred to was surveyed by Messrs. Ford and Shaw, Architects and Surveyors at Tientsin, and a plan of the site (annexed to the records) was made by them.  It was agreed upon that the plaintiff should fill an areas marked by the defendant on the plan by a boundary line in blue pencil.

   As preparation to the filling work to be done the plaintiff connected a plot of ground owned by him in the Chinese district with the filling site in the Russian Concession by a decauville railway.  This work was commenced on March 9, 1906. When the railway track had been constructed the filling commenced.  The plaintiff used as only filling material earth excavated from his plot of ground and as only means of transport the railway track referred to. 

   The defendant paid the plaintiff from March 26, to June 23, 1906 in weekly instalments in all 10,530 Mex. Dollars.  No discussions took place between the plaintiff and the defendant at the weekly payments as to the number of fang filled in. The plaintiff simply accepted, at times after some bargaining, what the defendant would pay him. The [defendant] gave receipts for the sums thus received worded as follows: received from Mr. Lagerholm so and so many dollars, date and signature.

   About the end of June the plaintiff contended that he had completed the contracted work and claimed the balance, but the defendant objected to pay, telling him that he had not carried out the contract.  The plaintiff's plea is that on June 23 he had filled in altogether 15,600 fang and subsequently until July 11 after which date he did not being any earth, 1,200 fang in all 16,800 fang and consequently claimed the balance of $Mex. 4,590 and interest.  As explanation how he calculated that he had filled in 16,800 fang the plaintiff stated that he used to take daily measurements of the filling done with a Chinese measure, a kind of tape.  His measurement used to tally with the payments received from the defendant. The 1,200 fang alleged to have been filled in after June 23 he had measured in the same way.

   On the site he had been filling in area by area corresponded to squares of 100 feet on Ford & Shaw's plan and marked on the suite with wooden pegs in the corners.  He filled one square until he understood that he had filled in the number of fang indicated by figures in green ink on the plan by the defendant.  His idea was that those figures represented the numbers of fang required to raise the surface of each area to a level agreed upon with the defendant. By adding the figures on the plan of the area filled ion he got the sum of 16,800 fang.

   Before the filling began he was told by the defendant that he should not fill all the ground to a certain benchmark on the boundary wall to the site, but part of the ground should slope.  The plaintiff contends that the slope had been taken into consideration and allowed for by the defendant in calculating the green figures, otherwise more filling had been required. - The plaintiff pleaded that he had attached the utmost importance to this clause in the contract; "payments to be made once a week after measurement -at the weekly payments only 75 per cent of work done will be paid for." - The weekly payments must thus be considered as final settlements representing 75 per cent of the money due to him for work done, nothing more or less.  In support of his case plaintiff produced:

1.- copy of the contract dated February 27, 1906;

2. - a statement in Chinese of the weekly payments made by the defendant, in all Mex. $10,530, with corresponding numbers of fang 15,600 and 1,200 fang not paid for.

   The defendant's plea is that he himself had drafted the contract of which a copy was produced by the plaintiff.  He had not taken any measurements during the progress of the work, he only made tough estimates for the  weekly payments principally based on his own ocular surveys of the filling done.  His estimates would approximate the exact quantities filled in as near as 20 per cent more or less. When in the end of June 1906 he noticed that the plaintiff commenced planning the surface of the earth filled as to finish the work, he got suspicious and told him that he had not carried out the contract.  The plaintiff contended that he had. After the last payment on June 23 the plaintiff only filled in a few fang and then discontinued the work.

   When the plaintiff ceased work the defendant measured the filling work done at the site.  Those measurements he compared with the measures he subsequently took of the burrow pit, where the plaintiff, as admitted by him, had taken all the earth used for the work under dispute.  The measures did practically tally, when some allowance for setting of the earth had been made.  In order to safeguard himself in a dispute he engaged an independent expert surveyor, a Danish engineer, Mr. J. Holmberg, cand. Ploy., who surveyed the burrow pit and found that 13,147 fang of earth had been excavated. On the basis of his own calculations the defendant admitted that 13,210 of earth had been filled in.

  The defendant contended that his payments aggregating 10,530 dollars were "bona fide," payments; the clause in the contract: "at the weekly payments only 75 per cent of work done will be paid for - - when the whole contract is finished the balance will be paid off," he had inserted for his own protection, in case the plaintiff should not fulfil the obligations.  At his discretion he could pay more, if he choose so, and would take the risk.  He had paid between 88 and 89 per cent of the work actually done.  The receipts  given him by the plaintiff were for money paid only and had no reference to fang of earth filled in.  The weekly instalments could consequently not be considered as settlements.

   The green figures within the blue boundary line on the plan would, if added together, as done by the plaintiff, represent the filling of the area in question up to a horizontal level to the bench mark on the boundary wall.  A slope, as was the actual result of the filling, was not considered in the calculation, which the green figures represented.

   The statement of payment handed by the plaintiff the defendant accepted as correct, so far as the amounts paid and dates of payment were concerned, but, contended that in other respects it was not based on facts.  In support of his defence the defendant referred to as letter addressed to him by the above mentioned Mr. Holmberg on September 19, 1906, giving as a result of his measurements of the burrow pit in question 13,147 fang of earth excavated.

   Having reviewed the evidence adduced the Court is of opinion that the plaintiff has failed to prove that he has filled in 16,800 fang of earth as claimed by him.  There is nothing to show that the plaintiff has wilfully broken the contract, which was nearly carried out, the defendant admitting that 13,210 fang had been filled.  But as the plaintiff has omitted to prove by an impartial survey or other evidence the extent of his work, the plaintiff is considered not to have carried out the contract under dispute.

   As the plaintiff has thus failed to establish his claim by evidence, the Court dismissed the case, under the circumstances, each party to pay his own costs of this action.

   Notice of appeals against this judgement must be given to the Consular Judge within ten days from this date.

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