438
£629 38, 4d. The damages claimed represented the difference between these figures.
Mr. Thomas Morrill, representative of Charles Heureux in Hongkong, gave evidence of having received the order.
Mr. Brutton's defence was that there was no contract, as the telegram asking what the price of the plates was, was not an o der; also that the damages claimed were excessive.
His Lordship reserved judgment.
Friday, 10th June.
IN SUMMARY JURISDICTION.
THE HONGKONG* WEEKLY PRESS AND
BEFORE HIS HONOUR T. SERCOMBE SMITH early possession."
(PUISNE JUSTICE),
ALLEGED BREACH OF CONTRACT,
Joseph Heureux. London, sued Paul Lemaire & Co. Hongkong, for $333 damages sustained by the plaintiff by reason of a breach by the defendants of a contract made on 25th Septem- ber, 1903. for the purchase of 1.000 cases of tin plates. Mr. E. J. Grist, of Messrs. Wilkinson and Grist, solicitors, appeared for the plaintiff, and Mr. G. K. Hall Brutton, solicitor, for the defendants.
His Lordship in delivering judgment said :— This is an action brought by Joseph Heureux of 101. Leadenhall Street. London. F.C.. Eng. land. merchant, against P. Lemaire and Co. of 15, Queen's Road Central, in this Colony, claim. ing $333 as damages for breach of contract for the purchase of 1,000 cases of tin plates at 12/7 a case: At the trial the plaintiff failed to prove that he had sustained the damages claim. ed or any portion thereof, and asked that the further hearing should be postponed to allow of the issue of a commission to take evidence in England on the point of damages. But at the sug- gestion of the Court, the case was proceeded with because the defendant might have defences which would absolve him from liability and render the taking of evidence on commission unnecessary. No question is raised by the status of the plaintiff as a foreign prineipal. because the parties were in direct communication with one another throughout. The alleged contract of which a breach is now sued upon is said to have arisen upon the following correspondence. —(A) Telegram, 22 September, 1903, Lemaire Please quote lowest to Heureux, London. quotations 1000 c/- Tin Plates 14 by 20-100 lbs, 112 sheets." (B) Telegram, 22 September, 1903, Heureux, London, to Lemaire. "12/7d. per case tin plates 100lbs. c. i. f. Hongkong." (C) Telegram, 25 September 1903, Lemaire to Hen- reux, London. "Accepted (1000 c/ tin plates, 100 lbs at 12/7d. c.i.f. Hongkong). December January shipments. It is expected that some reduction will be done. If necessary, I will deal with other correspondence lower down, but I stop here to consider the arguments addressed to the Court as to the effect of the correspondence set out above.
"
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""
of Tise
For the plaintiff it was contended that Telegram “A” means "atwhat price are you willing to sell 1,000 cases tin plates ?" that telegram "B meant "we are willing to sell at 12/7d. a case,
and constituted an offer to sell 1,000 cases at 12/7.," and that telegram C," by the
the word "accepted," constituted an acceptance of the offer in "B" and concluded a contract between the parties: further that the addi- tions in "C" of the expressions "December to January shipments" and " It is expected that some reduction will be done were merely directory expressions and not variations of the terms of the offer said to be made in telegram "B." For the defendant it was con- tended that A" was merely an enquiry for terms and not an offer to buy; that "B WBS merely & reply to the enquiry and not an offer to sell; and that "C" was an offer to buy one ortain terms.
"
It is not disputed that no reply relating directly to "C" so as to constitute an accept ance if "C
was an offer was received by the defendant Lemaire before he cancelled the offer in C." Assuming in favour of the plaintiff | that "B" constituted offer to sell
an 1,000 cases at 12s. 7. c.i.f., Hongkong, it is plain that the acceptance alleged to exist in
K
was not an absolute and unqualified accep- tance, but was an acceptance with additional
4
++
(June 13, 1904.
ALICE MEMORIAL MATERNITY HOSPITAL.
OPENING CEREMONY.
terms and conditional upon there being Decem- ber to January shipments. At the most C" amounts to saying."I accept your offer subject to your shipping in December to January." Now, it is well known law that an acceptance
On the 8th instant the Alice Memorial must be of the very offer made and that a con.
make Maternity Hospital in Bonham Road was for. ditional acceptance operates, not to a contract, but as a fresh offer to contract. mally declared open by Mrs. F. H. May, the In this connection the case of Harvey v. Facey
wife of H.E. F. H. May, Officer Administering (1893) A.D. 552 is an pposite illustration. the Government of Hongkong. The foundation In that case, Harvey wired to Facey "Will you stone of the new building was laid by Lady Blake on the 25th of July last, and it was ex- sell us B. H. P. Telegraph lowest cash price." Facey wired back, Lowest Price for B. H. P. pected then that the opening would take place £900," Harvey again wired We agree to about the end of the year; but various causes buy B.H.P. for £900 asked by you. Please send have contributed to delay the completion of the us your title-deed in order that we may get work. The hospital is connected with the
London To this Facey made no
Mission and is affiliated to the reply. It was held by the Privy Council that Alice Memorial and Nethersole Hospitals, to there was no concluded contract between Harvey the latter of which it stands adjacent. and Facey to be collected from the aforesaid Its estimated cost was $13,000. Mr. John telegrams. Lord Morris in delivering the judg. Lemm. F.I.A.. N.S.W., 64. Queen's Road.
The first Central, was the architect, and the building was mentof their Lordshipssaid at p.555: — telegram asks two questions. The first question erected under his supervision. It occupies a is as to the willingness of Facey to sell to the ground area of 58 sq. feet by 32 sq. feet, and is a two-storied edifice in the same style of appellants; the second question asks the lowest price, and the word Telegraph is, in its collo- architecture as the adjoinin premises. On the cation, addressed to that second question only. ground floor there are two private wards, 12 by Facey replied to the second question only, and 20 feet, each capable of providing ample accom- gives his lowest price. The third telegram modation for two patients, but according to from the appellants treats the answer of Facey present arrangements the management intend stating his lowest price as an unconditional offer placing only one bed in each. These two warda are divided by a corridor, leading to the two to sell to them at the price named. Their Lord-
nurses' rooms, matron's room, and lin n stores. ships cannot treat the telegram from Facey as
On the same floor are situated the kitchen, an binding him in any respect, except to the extent it does by its terms, viz., the lowest price. smahs room, drying and bath-rooms, etc. The is left open. and the main ward on the first floor is an airy Everything else reply telegram from the appellants cannot be compartment some 30 feet square. Although treated as an acceptance of an offer to sell to capable of holding eight beds, it is intended to an offer that required to place in it only four at present. thus giving them; it is
some 220 square feet of floor space to each. On be accepted by Facey. The contract could only be completed if Facey had accepted the this floor also are a marble-tiled operating room It has been conten- and lecture room each 10 ft. 6 in. by 13 ft., and appellants last telegram. ded for the appellants that Facey's telegram night nurse's room. stores, bath-room, etc. yes" to the first This floor has a pleasant outlook across the should be read as saying question put in the appellants' telegram, but harbour. The ward windows are provided with there is nothing to support that contention. glass sashes, mosquito-net sashes, and jalousies, 80 hung that one-third, two-thirds, or the whole Facey's telegram gives a precise answer to a precise question, viz, the price. The contract window may be opened. The space under the must appear by the telegrams, whereas the ground floor is well ventilated, and wherever appellants are obliged to contend that an possible all timber-work is left exposed to the acceptance of the first question is to be implied. air. Their Lordships are of opinion that the mere statement of the lowest price at which the vendor would sell implied contract to sell at that price to the persons making the inquiry."
to
contains до
In the Case now before the Court, an enquiry I regard the telegram (A) as
and 8.8 containing about lowest prices
Heureux would no tacit enquiry whether sell Lemaire. I regard the telegram (B) as a reply giving the lowest price and not as I regard the constituting an offer to sell. telegram (C) as an offer consisting, of Heureux's terms and of other terms. That offer, having been sent by cable, required an acceptance by cable. No such acceptance was forth- coming. Then on the 9th November, 1903, more than six weeks after the offer of 25th September was made, Lemaire wired cancelling all orders. This he was entitled to do in the absence of an acceptance by Heureux: for an offer may always be withdrawn before accept- ance. I have said that the offer, having been made by cable, required an acceptance by cable. The distance apart of the parties, the previous telegrams and the presumption arising upon an offer by telegram that a prompt reply is expect. ed (see Quenerdaine v. Cole 32 W. R. 185), all point to an acceptance by telegram as the pro- per and expected mode of acceptance. It may be said that Heureux's conduct in placing an order for the goods with manufacturers amoun- ted to an acceptance. Apart from there being no evidence of this conduct as against the defendant, there could be no communication of such acceptance by conduct between parties separated by thousands of miles and it is essential to the formatrin of a contract that must be communicated, and acceptance communicated within a reasonable time.
There will be judgment for defendant with
costa
Eight young Chinamen, having learnt the German language, have been admitted into the German Army. They wear a special uniform designed at headquarters in Berlin.
|
The main floors are of bees'-waxed hard- wood, and in the private wards the heating is done by means of separate fire-places wherever prac- ticable; the general ward is to be kept comfort- able in winter time by central fireplaces. Bells are provided throughout. Asaprotection from the afternoon sun a balcony has been erected on the west side of the building which is approached by a flight of stone steps immediately behind the Nethersole Hospital. Now that it is com- pleted the new building presents a very hand- some appearance, doing credit both to the architect and the builders.
Mrs. May was accompanied by His Excellency F. H. May, C.M.G., the Officer Administering the Government and Captain M. K. Hodgson, S.F., A.D.C. Among others present were Dr. R. Maclean Gibson, superintendent; Dr. Sibree, lady doctor in charge of the Maternity Hospital; Hon. Dr. Ho Kai, C.M.G.; the Rt. Rev. Bishop J. C. Hoare and Mrs. Hoare; Lady Goodman; Hon. A. W. Brewin, Registrar- General, and Mrs. Brewin; Hon. Dr. J. M. Atkinson, Principal Civil Medical Officer, and Mrs. Atkinson; Rev. T. W. Pearce, London Mis- sionary Society; Mr. J. Dyer Ball, Mr. A. Rumjahn, Rev. J.H. France, Seamen's Mission; Rev. H. R. Wells, London Missionary Society; Rev. E. J. Barnett, Church Missionary Society; Mr. Geo. Pieroy, jun., Diocesan School; Messrs. Fung Wa Chun, Chau Siu Ki, Chiu Yn Tin. Ma Fat Ting, Wei On, Un Lai Chun, Chau Chenk Fan, Li Pak, Wai Tsin Kai, Messrs. Kwon Kai, Dr. Wan Man Fong Kuk, Au Fung Chi, Wong Chin Lau, Chin Chow San, Chau Pin Kai, Lo Chenk Wan, A Hoi Chon, and Pun Man Hing.
The first part of the proceedings was the presentation to Mrs. May by Dr. Ho Kai of a beautiful bouquet of flowers in a silver holder.
Rev. T. W. PEARCE said :—Mrs. May, your We are Excellency, ladies and gentlemen, met to open the Alice Memorial Maternity Hospital, a benevolent institution affiliated to the Alice Memorial Hospital in the Hollyrood Road and to the Nethersole Hospital, where we are assembled. Before addressing you on the subject of the new building, its history, purpose