Piste sua Bie SIN Jones Yor dee Before Sir Allen Mossop, Judge.
Shanghai, Nov. 3.
The hearing in the breach of contact action in which Mr. Loh Nan '00, contractor, represented by Mr. IM. Reader Harris is claiming a total of $118,044.55 from Mr. R. M. Joseph, represented by Mr. J. Re Jones, wor resumed "before Judge' Sir Allan Aossop in H, M. Supreme Court yes terday and lasted the whole day, 'The case was adjourned "until. 2 pan. today, 'The action results from a cor tract signed on June 12, 1997, for the erection of an apartment house on JAvenue Joffre, at a price of $203,000 and the' building was to have Leen completed before June 10, 1938. Pay: ments were to have been received by the contractor upon presentation of certificates issued by the architects, [Messrs, Davies, Brooke & Gran, but Ino payment was to be for less than '$10,000 any one time. Work was Stopped when hostilities broke out in August 1937. The contractor's work-to the plaintiff, were the premises on June ye owner. The amount claimed, includes materials and la-hour used, materials and machinery Teft_on the premises and a deposit which the contractor made at' the time.
Tu addressing the court, Mr. Jones id "that following the evidence given by Mr. Loh and Mr. J.T.
Brooke at the previous hearing, he had no ease to answer.
Referring to the claim that a breach of contract had occurred the part of the defendant because of non-payment of an instalment, Mr. Jones said that his reply thereto was thatthe architect had given no certificate for the payment to be made and that according to the contract. this would have had to be done. before defendant would have had to make a payment. On the other "hand, Mr. "Jones "continued, plain had stated that the necessity a certificate was dispensed with on the grounds that the architect failed act as an impartial arbitrator and that he was acting under the influence of the defendant.
Next, the plaintiff himself pleaded a repudiation of the contract on his art, stating that the defendant in the company of Mr. Victor Priest wood and several other persons and the French police, wrongfully ejected plaintiffs employees from the premises, Mr. Jones added, and {his respect he contended that the defendant had the liberty and_ the power to take the contract away from {his contractor and to give It to another contractor provided that the architect concurred in that he (de~ fendant) had the right to do so, Tu referring to the appointment as agents for the defendant of Messrs 'Aikinson & Dallas Lid, Mr. Jones emphatically denied that this' frm had acted as architects as claimed by the plaintiff. He maintained that they merely performed the duties of agents, With regard to plaintiffs claim for the return of the securities deposited with defendant, Mr, Jones said that his client had refused to do so. because the defence was that these Securities were-to be kept until the completion of the contract "My point is that the plaintitt is not entitled to treat the contract as tan end," Mr, Jones continued, "and T plead that the defendant has not Fepuidiated i unless the breaches complained of, go to the root of the contract beeauise not every breach of contract amounts to repudiation, My main contention is that plaintiff has hot discharged the burden of proof that defendant has broken the con= tract and, particularly, that the defendant has repudiated the contract s0 ay to treat It-as completely at an 'With regard to the fact that instalment was paid in May 1938, 1 must point out that no certificate Issued by the architect," Mr, Jones added, He then referred to the contract which stipulates that it is for a Tump sum' irrespective of the possible muctution In the prices of materials, Tu once again referring to the var~ fous Tega! cases quoted by counsel for the plaintiff, Mr. Jones said that there was a very material point in which the present case distinguished self' from" the others in that it was fully agreed in the contract that the certifeates should be issued at the absolute discretion of the architects, fand that it was expressly agreed that the atehitect had full power 10 certify for work done.
"This," Mr, Jones added. "raises the question of absolute discretion fon the part of the architect and the difference which exists between a progress and a final certificate."
He went extensively into the legal aspects of the ease particularly in Fespeet to progress certificates and to the question of absolute discretion of the-architect in all matters. He also referred to the lengthy correspond: ence exchanged between the two parties in particular to a letter which the contractor had written the architect wherein the latter was ins formed that the contractor was unable to resume work unless certain money was paid and increases over and above the pre-arranged price of the building were agreed to, Mr. Sones, in citing from Mr. Brooke's Matement in, the witness box, contended that Mr, Brooke, at the time of the receipt of the letter, had not made up his mind about issuing Other certileate and that the cent of the. contractor's letter actually his mind as to what to do contended by the plaintiff, the defendant's interference with the architect's decisions, My, Jones said that there was no evidence in that Mr. Joseph would hot have paid if certificates had been issued by the architect and continued to quote from Hickman & Ca, versus Roberts to show that there was no connection between the two cases.
"Throwghout the afternoon sess Mr. Jones continued to quote lay defence of his case and. maintained that the present ease could not be compared with those quoted by coun Sel for the plaintiff. In_ particular, hho contended again that the case of Hickman versus Roberts was ino way identical with the present case ud, therefore, could not be taken as a basis for In referring to the eviction of the contractor's workers from the premises on June 25, 1938, Mr. Jones pointed out that according to. the contract, permission 10 be obtained. from
Text read from the printed page and cleaned; old type leaves the occasional error.