Chang Min Tat FJ:

The appellant was the subcontractor of the respondents and built for the respondents two steel frames in fulfilment of the latter's much larger contract with FAMA. The dispute between the parties was the amount due on the subcontract. The payment on the sub-contract was on the weight of steel supplied and used in the construction at a specified $820 per ton. The price included the cost of construction.

It claimed for $118,683.68 said to be the balance due. The defence admitted to owing $64,586.08. The balance was trimmed down to $31,160 after some adjustments had been made in respect of several items which the appellant admitted as not properly within its claim or having been paid. On the issue whether the appellant was entitled to the $31,160, the claim went to trial. At the conclusion of the trial which spread over two days, the claim, as seen from the order drawn up but not shown in the record of proceedings, was dismissed with costs under the higher scale.

The difference of $31,160 arose from the dispute whether payment for the construction was to be by gross or by nett weight of the steel used. In the construction of a steel framework, it is clearly necessary that apart from the girders supplied and used, ancillary steel equipment such as bolts, washers, connecting plates would have to be supplied and welding done. The gross weight of the construction would include this supplementary weight of steel. The nett weight of steel used would be strictly limited to the supply of the structural frames. The dispute must be resolved by determining what exactly was agreed between the parties. The plaintiff contended that it was entitled to claim for the gross weight while the defendants countered by saying that the plaintiff was only entitled to the nett weight.

The defendants' contention was obviously grounded upon their own entitlement in their contract with FAMA, by cl. 2-60 thereof, to payment for nett quantities only. This clause reads: "2-60. Payment for steelwork shall be on nett quantities only, and on completion, the work shall be measured accordingly. The contractor must make his own allowance for waste, bolts, washers, holding down bolts, necessary welding, connecting plates etc. and the contract rates shall be inclusive of painting as specified."

The defendants therefore claimed that the sub-contractor was only entitled to charge what they themselves were entitled to charge. That was, in itself, not an unreasonable suggestion. But it would be so if, and only if, the same condition was included in the sub-contract between the contractors and the sub-contractor.

On this contention, Counsel at the hearing framed the following issues for the decision of the trial Court:- "Issues involved:-

"1 Whether the term in the principal contract between FAMA and the defendant, i.e. cl. 2-60 (p. 5 of Agreed Bundle Exh. 'B') should be read and construed together with the terms in the sub-contract (on pp. 1 and 2 of Exh. 'A') between the plaintiffs and the defendants.

2 If the Court holds that the specifications of the principal contract are to be read with and form part of the sub-contract, then the plaintiffs' claim ought to be dismissed.

3 If the Court holds that the specifications of the principal contract do not form part of the sub-contract, then the plaintiffs are entitled to judgment for the sum of $31,160."

The learned trial Judge treated this question very much as a matter of fact. It might be that he was led into doing so by the wording of the issues but it ought to be appreciated that the dispute between the contractors and the subcontractor is properly to be resolved by the proper and reasonable construction of the written sub-contract between them, and that the contention of the contractors is nothing more or less than the existence of a separate agreement, which their Counsel said was part of the actual contract, or as Counsel put it, that cl. 2-60 should be read and construed together