The agreement states that the contractor shall carry on the work "under the direction and to the satisfaction of Messrs Cumine Milne, and that he shall construct according to drawings and plans prepared by the architects.' The Specifications provide that "all bricks used shall be of Sing Fong Kiln of standard size, i.e., 5in. by 10in. by 2 and of even colour, sound and well burnt. The mortar is to be composed of one part lime to three parts river sand "free from mud, ete." By the plans of tha architects the northeast bedroom is to be 16 ft. in length. The dining room, kitchen and pantry are also shown of a certain length in the original plan. The northwest bedroom according to the plan is 17 ft. 7in. in_length on the east side and 14 fi. 8 on the west side. The north verandah according to the plan is 4 ft, in depth. But the plaintiff states that an agreement was come to with the architects to make it 6 ft., although the plan was not altered. The verandah on the south side is set out in plan as 6 ft. 5 in.
There was some discussion as to the situation of the land that the building was to occupy, and it was finally decided that it should front to the public road, more or less flush with road line. The plaintiff] states that she and her husband know nothing about building, and trusted entirely to their architects.
The architects went and saw the land and stepped it out in May, 1921. The specifications were signed on July 18, 1921, and the agreement with the contractor on September 14, 1921. The plaintiff says the building was begun on September 21, 1921, and Cumine says it was begun about September and Milne says September 91.
Freeman, husband of plaintiff, States there were four boundary stones at that date in position. Two were the plaintiff's boundary stones and two were French Municipal Road boundary stones, which is corroborated by his wife the plaintiff.
The official of the French Municipal Council who viewed the building and site states that he saw two Municipal stones but did not notice any owners' stones and stated further "I did not look to see if there were any Lot numbered stones," and states "the road stones give the exact angle of the land" and says that the architects have only to make a request to the French Municipal Council and they will get a plan showing line of roadway. Mr. Moorhead, an architect who visited the site recently, states that he saw two Municipal roadway stones on the site and one comparatively far away. The contractor says he saw a Municipal stone and one of Freeman's stones. Milne says he saw one Municipal stone but no owner's stones.
The building is begun and when it had reached about 2 ft., a French official came to the contractor and pointed out he was encroaching on to the road, but he said he had no official notice so merely reported the matter to Cumine, but the building was not stopped. Later, an official notice came from the Municipal Council, but the contractor said nothing was done at the time. That Cumine told him "wait before changing the wall, because I have got a licence from French Municipal Council and as there are no regulations in the French Settlement I can go on." That this was said is denied by the defendants. But Mr. Milne does say that although he knew the French Regulations only allowed a verandah to overhang the road 3 ft., he made it 4 ft. and risked it. Mr. Milne says it was on October 20 when he heard of the encroachment and the' building was up to first floor. The building is continued but ultimately after it had reached some height the French Municipal Council, as they had a right to do, made them pull down that part of the building which encroached on to the road.
The result of this encroachment was that the building was delayed, and some of the rooms became shortened, and some altered in shape; and it is now impossible to build the rooms in question according to the dimensions on the plans.
We now come to the question of how far the architects were responsible for the encroachment. Mr. Spence, an architect, was called and he states what is the custom as regards architects commencing to build on land in Shanghai. He says. "Sometimes we are given title deeds and an official plan. If we do not get them we should make a survey of site. It is a normal practice to make sure of the frontage. I should inquire at the French Council if widening schemes had lately taken or were likely to take place and generally as to the frontage Cie should survey the land. The French Council will furnish one with plans of new sites showing individual boundary stones. I should insist on French Council delineating the road before starting foundations.""
Mr. Moorhead, another architect called by the defendant, stated "T should not necessarily insist en title deeds and official plans. I should go to the site and should require some competent person to point out the boundaries. If I was satisfied that be knew what he was talking about when he pointed
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