006-NLR-NLR-V-23-AMARASEKARA-v.-PERRERA-et-al.pdf
( IS )
1921.
Present: Ennis J.
AM^iRASKKERA t>. PERERA et of.
81—0. B. Cglambo, 74,891.
Agreement to survey landa ahotving encroachments, jungle, dec:-—Want of
bona fidos on the part of the surveyor—Action to recover fee.
Good faith by a contractor is essential to support a claim forpayment for the work actually done under a contract which hasnot been fully executed.
The plaintiff, a surveyor, undertook to make a survey of severallands showing encroachments, jungle, and lowland, and to parti-tion the same. The plaintiff took some perfunctory steps toascertain whether the title plan correctly represented the lands,-and did not perform his work in accordance with the agreement.
Held, that plaintiff's want of bona fides prevented him fromrecovering the amount agreed upon.
facts appear from the judgment.
"R. L. Pereirati for'appellants.
Hayley, for respondent.
September 8,1921. Ennis J.—
The plaintiff in this ease claimed Rs. 300 in the following circum-stances :—He entered into an agreement with the defendants tosurrey 19 lands, to prepare a plan of each, and to partition samefor a sum of Rs. 500. He .received an advance of Rs. 150, and saysthat the defendants prevented him from mating partition, which heestimated would cost about Rs. 50.- He accordingly deductedRs. 200, and claimed the balance. The learned Judge held that Jueplaintiff was entitled to recover the value of the work he had donein accordance with the agreement, and said: “ I consider that a fairestimate of the services would be Rs. 160,’*’ for which sum he entereda decree. The defendants appeal,not clear whether the
learned Judge meant this a valuation of all the work done by theplaintiff, because, if so, the decree should have been for Rs. 10 only.Blit tixe learned Judge had answered the fourth issue, viz.: “ Whatsurn, if any, is the plaintiff entitled to claim for work done ? ” byspying that he is entitled to Rs. 160. He has further answered thefifth issue “ Is the defendant entitled to.claim a refund of Rs. 150 ? ”in she negative.
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I do not consider iv necessary to send thi^ ease back for a clear 1921*adjudication, as I find that the plaintiff undertook to make & surveyj.
in each case showing encroachments, jungle, ana1 lowland . ■ . …
D 3 shows that this was the agreement, and the pla intiff says his workwas to enable a partition to be made among the Jefendants. Theplaintiff denied that he undertook to show what was in jungle; he is,however, contradicted by D 3. The defendants as-sorted that asregards three lands, the plaintiff merely made a copy of the Govern-ment survey plan, and made no independent survey, in consequenceof which the plans do not show the configuration as exi& ting to-day.
The Superintendent of Surveys was deputed to ascertain whether asurvey of one of the lands had in fact been made within the year, andas a result of his inspection he has testified that no survey w as madewhich could produce the plan 3) 6. On the evidence the learnedJudge has expressed a belief that the plaintiff visited the land andtook some perfunctory steps to ascertain whether the title jolancorrectly represented the land, and that he had. not performed hiswork in accordance with the agreement. This being so, it is cloarthat the plaintiff has not acted in good faith. The case of Haumanv. Norije1 indicates that good faith by a contractor is essential tosupport a claim for payment for the work actually done,under acontract which has not been fully executed. There is,. however,another principle of Roman-Dutch law, viz., that a person cannotbenefit at the expense of another, and as the defendants have notreturned the plans which they received, they have presumablymade use of them. I find that the plaintiff said that, “ excluding mywork on the three lands, the value of my work in respect of the otherlandB is Rs. 300/’
It is not clear to what he refers to as “the three lands,” butpresumably they- are the lands which the defendants say were notsurveyed at all, while the learned Judge has found that a fairestimate of the value of the services performed by the plaintiff isRs. 160. In my view the plaintiff’s want of bona fides prevents himfrom succeeding, and his claim should have been dismissed. Thedefendants, however, counter-claim for a return of Rs. 150, and inview of the Judge’s finding that they had some advantage out of theagreement, I would not interfere with his finding that the defendantscannot recover this amount. In the result I would set aside the'decree with costs, and dismiss the plaintiff’s action and the defend-ants’ claim in re-convention, each party to pay his ownyosts in theCourt below.
&e& aside.
x S. A* L. IL Ajpp, Dfa* $9$.