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OF THE

SUPREME COURT, VICE-ADMIRALTY COURT

AND

BANKRUPTCY COURT

OF

MAURITIUS.

ARRÊTS

DE

LA COUR SUPRÊME, DE LA COUR DE VICE-AMIRAUTÉ

ET DE LA

COUR DES FAILLITES

DE

L'IL E M A U RICE.

1871

i

VOLUME ELEVENTH.

EDITED BY A, PISTON

ATTORNEY AT LAW.

MAURITIUS:

PAINTED BY E. DUPUY AND P. DUBOIS,-), BOURBON STREET.

1872

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Circumstances under which the Court has

found that an Engineer who had agreed to place, on the Estate of a sugar Planter, machinery equal to that of leading firms in Europe, had not performed what they obliged themselves to do under the contract; and that the Sugar Planter had sustained thereby certain damages which the Engineer were bound to make good whilst taking away the machineries from the Estate.

Of Counsel for FonE. PELLEREAU,

taine & Smith & PaP. L. CHASTELLIER,

turau & Co. J. H. ACKROYD,–Attorney for same.

W. HEWETSON,—Of Counsel & Attorney for 20th January 1871.

himself.

" adapted to the existing installation, and “ the whole together shall work properly so “as to make a minimum of thirty thousand “pounds of sugar in fifteen working hours, “ withont addition to the boilers actually “ put up (montés). In case it should suit “ Mr. Hewetson to have a large boiler with

two tubes by Smith, put up, such boiler to “ be used only in case of accident, and the

mounting as well as the piping are comprised in the present bargain."

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In the two cases in which we have now to give Judgment, the questions have arisen between a Planter of the colony and the Engineers who, under a written contract, had agreed to supply him with certain sugar machinery. In the first Action the Plaintiffs are Messrs. Patureau & Co., engineers, Port Louis, and Fontaine & Smith, engineers, of the district of Flacy, and the Defendant is Mr. Wm. Hewetson, proprietor of various Sugar Estates in the colony,and among others of * lEtoile" or Hewrison situated at “ Trois Ilots”, in the said district of Flacq. The object of the demand is to have it declared by the Court, that the Plaintiffs have duly performed their part of the contract. In the second Action the position of the parties is reversed : Mr. Hewetson, as Plaintiff, seeks to recover from the said engineers, who stand as Defendants, damages to the extent of £ 12,000, by reason of the loss which he says he has sustained by and through the non-execution of the contract.

“ 2o. Messrs. Paturau & Co. and Fontaine & or. guarantee that the apparatus “à

triple effet to be supplied by them shall “ be equal in every respect, to the apparatus

(appareils) coming from the workshops • of Messrs. Cail & Co., and that the new “ mill for repassing the cane trash, shall, in “ no wise, decrease the effective working of “ the engine to which it is adapted, re

quired for moving the large cane mill. All " these works shall be made with the great“ est care and all the accessories shall be in

harmony with the importance of the sugar" house.

On the joint motion of parties, the case of damages was heard immediately after the Declaratur, and it was agreed and arranged that the whole evidence taken in both cases should be common to both suits, and that Judgment in both cases should be given at the same time.

The original agreement in connection with which those disputes have arisen is in French, in the form of a private deed (sous-seing privé), and, translated into English, runs as follows:

Agreement

30. " The whole installation shall be " completed (devra être complète) and in “ condition to work on the first of July next. “ 'This clause is stringent (stricte) between “ the parties and no pretext shall impair its - cffect."

“ Between Mr. Hewetson, on the one part,

And Messrs. Patureau & Co., and Fon“ taine and Smith, Mechanical Engineers, on " the other part.

“ 40. The price of all the above mention“ed works for the re-installation of the sugar" house is fixed at the price of twenty thou“ sand dollars, without any extras: this sum “ shall be payable, up to ten thousand dollars

yearly, to be settled after each crop, out of “the value of the ascertained surplus yield “ of sugar produced by the repassing of the

cane trash, and by the substitution of the

'triple effet,' and also out of the value of “ the economy obtained in the fuel. These “ three results being guaranted (assurés) by " the contractors."

lo. Messrs. Patureau & Co., and Fon“ taine & Smith bind themselves to put up

(établir) on the Estate Hewetson:

(1) “ An apparatus for evaporating the juice of sugar canes (vesou) commonly cal“ led an apparatus " à triple eftet”, and all “ the necessary accessories, such as the air

pump, defecators, decanters, stop cocks, pi

“ The notes and books necessary shall be “ regularly kept on the Estate: they shall be

open to the inspection of the Contractors “ (controlés) whenever they please, and shall “ be produced on their first requisition.”

pes, &c."

50. “ The Contractors may utilize all the machinery or pieces of machinery which are on the Estate.”

“ Executed in Duplicate (fait double) 13th “ April 1899. Approved :

(2) “A cane mill with all the accessories “ for the re-crushing (repassage) of the cane “ trash (bagasse)."

(3) “ An apparatus for the preparation and employment of the mono-sulfite according to Dr. Icery’s process. “ The above inentioned machinery shall be

“ (Signed) W. Hewetson.”

(Signed) B. Fontaine." (Signed) A. Patureau & Co."

(Signed) J. Smith.”

The Engineers, Messrs. Paturau & Co, and Fontaine & Smith, the plaintiffs in the first suit, proceeded to construct the machinery bargained for, but it was not completed and set up by the stipulated day, the 1st July. We shall by and by see what the contentions of the parties are regarding this delas, and what the evidence is on this as well as on the other parts of the case ; but in the meantime, it will be convenient to trace, in the order of time, what took place between the parties, as shewn by the writings under their hand or which passed between them in the shape of formal legal notices, served by ushers of this Court, and which embody, very clearly, many of the views and pretentions with they have maintained, respectively, before the Court.

I have seen Smith this morning. He tells me that the lower ends of the tubes leak like the upper ends. I beg you will inform Fontaine of this, and tell him, at the same time, to place rings above as well as below; only they must be put in place without hammering by pushing a bolt through the tubes ; placing the two rings and tightening them in this way, you are sure to succeed.”

“I am having the rings made to put in everywhere, I will send you some to morrow, and I myself will arrive by the train which leaves at haii past twelve." But in case I should miss it, I will come by the 4.30 train, tomorrow Friday, without fail Tell Philippe to place the rings as we did in the tubular battery, which we made at the workshop with Barrière: he will recollect it. I saw Mr. Hewetson to-day. He is very impatient to see every thing finished and I can understand this, for the time is come when the machinery ought to be at work (où il faut marcher.)

On the 16th August (served 17th) Mr. Hewetson sent the following formal Notice to Paturau & Co., and others :

On the 1st August 1869, Mr. Hewetson wrote to the Engineers, stating that having been informed by Mr. Perron, on behalf of Mr Fontaine, that all the machinery tas working properly dat l'Etoile," he had been much disappointed, on arriving there the same morning, to find exactly the contrary. He pointed out that a month had been lost, producing a serious damage to him, and he alluded to the uncertainty of knowing when this state of matters, which prevented all regular work, would come to a close. He added " I have caused to be placed to your debit the value of the damage caused up to this day, but I must call

your attention to the fact that from day to day i he state of matters becomes more critical, both for yourselves as well as for me. I have entered into an engagement with Mr. Mercer of The Ceylon Company to deliver over to him two millions pounds of sugar before the end of August.

The Estate of “ Trois Ilots " has as yet but about 100,000 lbs. of sugar; " Richebois," thanks to you, cannot yct work. It is not with “ St. Julien and

" Bonne Source” that I can fulfil my engagement.

as

“ Take notice that, whereas, by an Act under private signatures, dlated the 13th April last past (the deed is then recited) and inasmuch you have not executed the agreement aforesaid and have caused immense prejudice to William Hewetson, of Port Louis, the proprietor of the said sugar estate Hewetson,' now you are hereby called upon to complete and deliver, within twenty-four hours after the service of the present notice, all the works, machinery and apparatus, in the manner and condition stipulated between parties mentioned in the said agreement.

“ No one has shewn you more good will than myself, but business is business, and if I become embarrassed by your act, I must be in a position to prove that I have done every thing to enforce the execution of your engagement. Therefore I hereby declare that I hold you responsible for all the consequences of these delays which are indefinitely prolonged, and I beg you to be good enough as to acknowledge receipt of my present letter.”

Under all legal reservations, and especially under the express reservations of claiming damages for the non-execution of the aforesaid agreement, since the first day of July last, and of enforcing the execution of the said agreement by all legal ways and means, the present Notice being made only to shew that, even on the present day, the contract aforesaid is still unexecuted, and being not intended as a waiver of any of the rights or Actions of the said William Hewetson.”

This Notice was met by a counter Notice dated and served on the 23rd August by the Engineers on Mr. Hewetson, in the following: terms:

We do not find that any direct answer was sent to this communication; things went on as before, the Plaintiffs continued to work at the machinery on the Estate with the view of having it completed and made efficient. Four days after the date of this letter, viz: on the 5th August 1869, Paturau wrote to Albert Michel the manager of the estate l'Etoile," in the following terms:

“ Take notice that, whereas, pursuant to a certain Act under private signatures, bearing date the thirteenth of April in the present year, made in duplicate, and between yourself on the one part, and the said A. Patu

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