THE HONGKONG WEEKLY PRESS AND
3rd July.
SIEMSSEN AND CO. V HIM KEE.
shall only observe that it is not inconsistent with the letter of hypothacation, that the reference in the schedule to property in
An action was brought by Messrs. Siemssen Hongkong and China must be construed to embrace the leaseholds in Hongkong as well as
and Co. against the Him Kee shop. The claim the share securities, and that this document was for the difference in value between the sale furnishes no evidence to show that the instra-price and the market price of the day on 41 ment of the 31st March, 1984, was not executed picnls of camphor, and for other expenses arising The plain bona fide. In the result, this appeal stands out of an alleged breach of contract
tiffs gave defendants credit for $696.17 which dismissed with costs.
plaintiffs had in their hands, and claimed a balance of $9.83.
3rd July.
IN ORIGINAL JURISDICTION.
BEFORE THE HON. W. M. GOODMAN (ACTING CHIEF JUSTICE).
HONG YING CHOI AND OTHERS v. LEONG CHOW SHI AND OTHERS.
This was a claim for three years' rent in respect of premises at No. 138, Praya West, and Sai Woo Lane. Mr. Pollock appeared for plaintiffs. The lease in respect of No. 138, Praya West was put in and by this plaintiffs were entitled to $75 per month as rent for the premises. The lease respecting the shop at Sai Woo Lane could not be produced by the defend- ant, although noting to produce had been served. The rent for the premises in Sai Woo Lane was $25 per month.
His Lordship gave judgment for plaintiffs for the rent up to the day of judgment and allowed costa.
CHAN WAN CHI AND OTHERS v. PAM CHEUK TING.
Mr. Robinson appeared for the plaintiffs. This was an action in which six out of seven Chinese (one having since died) sought to dis solve partnership with the defendant as from the issue of the writ, also that a receiver be appointed and that judgment be given for the amount, if any, which may be found owing by
the defendant.
In opening the case Mr. Robinson said that in 1884 the pisintiffs formed a partnership with the defendant for the purpose of carrying on a bakery business at No. 12, Peel Street The cipital was placed at $1,000, divided into $100 shares, which capital was afterwards increased to $1,700.
The defendant pleaded that he commenced the bakery business in 1884 and carried it on alone, the plaintiffs lending him money to start with. In answer to his Lordship, however, be said that the plaintiffs received a share of the profits of the business annually.
The accountant was called and stated that the business was divided among the plaintiff, in addition to which they received interest for their capital in the concern.
Defendant went into the box and stated that he received a salary of $40 a month for manag. ing the business. He contradicted the state. ment made by the witnesses for the plaintiffs that the profits were distributed among the plaintiffs, but said they received interest on the money which they had in the business.
No witnesses were called for the defence. His Lordship said he was of opinion that a partnership did exist, and that as far as he could see defendant had been “dodging " and cheating bis co-partners. He should order a dissolution of the partnership and have a receiver appointed and the accounts would be examined by the Registrar and a report made to him (his Lordship).
5th July.
IN SUMMARY JURISDICTION.
BEFORE MR. T. SERCOMBE SMITH (ACTING PUISNE JUDGE).
TOONG LUNG V. BLUTER, BROCKELMANN & CO
The bearing of this action was resumed: The plaintiff sued the defendants for $560.41, money paid by plaintiff to defendants in respect of 100 cases of matches; in the alternative plaintiff claimed delivery of the cases.
Mr. Dennys appeared for the plaintiff and | Mr. Hastings for the defendants.
The whole point in the case was whether plaintiff entered into two contracts with the defendants--one in bis own name, and the other in the name of Woh Kee. Another witness was called for the defence, and counsel on both sides addressed the Court.
>
His Lordship gave judgment for defendants, with costs.
Mr. Ellis of Mr. V. H. Deacon's office) ap- peared for the plaintiffs, and Mr. Dennys for the defendants.
The case for the plaintiffs was opened last week, when it was stated that the real point at issue was whether it was the custom to sell camphor at to many lbs. to the case. Witnesses for the plaintiffs said that the custom was that a box of camphor was to weigh about a picul, whereas the camphor supplied to the plaintiffs was considerably under the recognised weight For the defendants witness were called yesterday.
Kaw Hong Take, manager of the Him Kee shop, said he entered into the contract for the supply of the camphor in accordance with the regulations of the Nam Pak Hong, which con- risted of Chinese firms trading between Hong- kong and other ports, and its regulations, which were printed, were similar to vei y old established Chinese customs. Until the first day of the trial
he had not seen them.
Mr. Ellis-And yet you say that the regula tions you had not seen govern the contracts you entered into ?-Witness-Well, those are the
rules.
..
Witness, continuing, said he could not read Chinese. The words European custom were, he believed. always put on cam hor contracts.
Mr. Ellis read one of the regulations" When goods are being weighed in the scale sellers should personally witness what the weights are, and both sides must mark them dowu in order to prevent any mistake. When finished weighing, and when the marks have already been examined. the goods are at the risk and at the charge of the purchaser," and asked whether anyone at- tended the weighing of the cases. Witness said no, and Mr. Ellis replied, Then you yourself have broken the regulations which you say should have governed this contract."
C
Further cross-examined, witness said the order was for 200 boxes of Formosa camphor at $55 per 100 catties. The weight of the cases was never mentioned in the coutracis; some times there was more weight in some cases than in others. There was no fixed rate; one hundred cases weighed about 23 pienls, and witness had not known of those cases being declined because they did not weigh 93 piculs. Witness had a dispute with Messrs. Sander aud Co., who would not accept 81 or 82 catties because they said it was not the weight they contracted to buy. The big dealers in camphor in this port were seven or eight German firms and one i nglish firm.
Mr. Ellis-When you say there is only one English firm you forget Messrs. Shewan and Co.
Witness Mr.Shewan is an American. Mr. Ellis Mr. Shewan is an Englishman. Witness I thought he was an American. am sorry if I have made a mistake.
[July 10, 1895,
| exception of one, and while they were in the godown they were uot tampered with in any way. They were delivered on 27th May in a sound condition.
I
Other witnesses were called who said that
the regulations of the Nam Pak Hong wore always accepted in camphor contracts, and it was never the custom to have a certain weight of camphor in each case.
Mr. Dennys addressed his Lordship, and com- mented upon the fact that none of the plaintiff's witnesses had agreed about what the custom in Hongkong was. But, apart from that, the plain- tiffe, in taking delivery of the goods after carefully weighing them, had lost all claim in respect of any custom. The plaintiffs, he con tended. had not clearly,cogently, and irresistibly proved that the custom of having so much weight of camphor in a case existed in the colony.
Mr. Ellis commented upon the fact that only one portion of the Nam Pak regulations had been translated, and said there was absolutely no- thing in the clause which he had read that showed the plaintiffs had waived all rights to an action. But he submitted that the Nam Pak regulations had nothing whatever to do with the case, as the words "European custom had been written on the contract, and his witnesses had sufficiently proved that the recognised weight of camphor was about a pical to a case. He asked his Lordship to give judgment for the plaintiffs, whose witnesses were to be relied upon absolutely.
Judgment reserved.
8th July.
53
His Lordship delivered judgment as follows--- This is an action for $609.83 by Messrs. Siemssen & Co. against the Him Kee firm for damages for breach of contract in connection with an alleged short delivery of 41 piculs of camphor. A cross action was brought by the Him Kee firm, claiming $696.17 balance of the price of goods sold and delivered. The contract dated 2nd May, 1895, was in Chinese, of which the translation runs thus:-
Siemssen, respectable firm, bas bought, broker, 200 boxes Formosa Camphor at $55 per 100 catties. European Custom. It is expressly agreed that complete delivery is to be taken in 5 weeks, the time allowed according to the Nam Pak Hong regulations.
8th day, 4th moon, Ut Mi year Kwong Suj (2nd May. 1895). Note issued by Him Kee (chop) for sale of goods.
•
Under this contract the time for delivery would have matured on 6th June, but an arrange- ment was made by which delivery was to be taken on 27th May. The 200 cases delivered contained 149 piculs of camphor. The plaintiffs allege that, according to the usage of the trade in Hongkong, the cases should have contained 190 piculs. The question for the Court to decide is what is the meaning of a case of cam phor? Many witnesses were brought by plain. tiffs to give evidence as to the average weight of a case of camphor. Mr. Brodersen said: "Con- tracts for camphor are by case and not by weight. Lightest weights I've purchased are 98 piculs per 100 cases. Can't say if I've bought at 89 piculs... I consider I am contract. ing at 90 to 100 piculs per 100 cases. If I had Witness further stated that he entered into accepted 89 picals, I might have recovered the the contract as an agent for a Chinese firm in difference: the whole contract may have averaged A moy. He did not tell the plaintiffs what the proper weight." Mr. Michelau said: “ Always terms of contract were. The camphor arrived | sign contracts for cases, not pioals. I expect 95 here on 24th May. lt came direct from For- to 100 picals per 100 cases: that is the custom. moss, and had never been to Java.
Quite unprecedented weights would be 75, 80, 90 pionls per 100 cases. Two days ago I had 100 cases weighing 108 piculs. I should refuse to accept anything under 85 or 90 piouls. I should refuse 65 catty cases, however old camphor was. The custom of jort is that a case muất contain about a picul net. Under' ordinary dir- cumstances I should expect about a pioul a oase, between 90 and 100 catties. Always is between 95 and 100 catties.” Mr. Goetz said :
"Take con- tracts for so many boxes, not piculs. For 100 cases I should expect to get about 95 pic∙ls, ac- cording to custom of port. Had transactions with Him Kee: contracts with them have been for cases: have delivered up to about 95 cattios a case: never delivered or offered to deliver any
Mr. Ellis-Let me ask you more questions about the Nam Pak Hong. Does it consist of all the merchants in Hongkong?
Witness-All the merchants who gure to be- long to it.
Does very merchant belong to it ? Leannot tell.
What is the object of the Hong ?
uir dealings.
Do the members act as a sort of Arbitration Court.
well, there is no Arbitration Court at all. They settle disputes amongst themselves.
Are you a member?
I am not.
And yet you introduce their regulations into blow 90 catties. Never bonght at 85 catties a your contract ?
case from Him Kee on 6th October, 1893. I don't That is the rule in selling and buying.
remember if I did or not. Must refer to booka. Wong Ning. godown keeper, said that when On 27th March, 1895, might have bought 50 cande the cases arrived they were all sound with the] from Kwong Wy-shing at 70 entities. Lighton
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