February 20, 1905:]
Mr. Pollock-If they had been able to purchase in the market and had actually pur- chased, then the defendants would have suffered damages. They cannot ask Your Lordship to give them a sort of present as damages. We have to pay the loss actually sustained and a e not obliged to give a present in addition. That they are entitled to an indemnity we cannot dispute.
His Lordship-You say it is not a question of what they might have done, but the loss they actually sustained in having to buy goods. They are claiming a loss for profit they could have made had they got the goods you sold them, a loss of profit.
Hon. Mr. Sharp-I put it, the question of -damages in this case is this: -(1) the measure of damages on account of the non-delivery of goods is calculated by the ordinary market price at the time when the goods should have been delivered; (2) where the buyer at the seller's request has temporarily forborne to insist on his rights as to the delivery, then the measure of damages for ultimate non- delivery is the ordinary market price at the time when the buyer withdraws his forbearance. I think these two rules govern the ose and on these two rules one claim is based. The plaintiff might have brought his action earlier, but he forbore at the request of the defendant till the final letter of the 11th April, and at that time a reasonable time was given for the defendant to deliver the yarn. The market price was then $:20 per bale. The market price as a measure of damages may be proved by purchase of goods or in any other way satisfactory to the parties, but going out to buy goods is merely one way. In some cases where there is a regular published price list this can be placed before the Court. It is hardly material that the plaintiffs should go out and bay gods in this case. I think we have clearly established $121 per bale was the price, but we put our claim at one lower than that, taking $12 per bale as the price. I would refer Your Lordship to one or two authorities out of Mayne. The only point my friend has is that we can only claim the market price and not any special price. Let me refer Your Lordship to the case of Ogle and Vane in the Law Reports, and Hickman and Haynes.
Mr. Pollock-I would refer Your Lordship in the first instance to the statutory provisions, sub-section 25 of Ordinance 4 of 1896, the Sale of Goods Ordinance, corresponding to the previous Home act of 1893. As regards the question of dates, it was some day between the 16th and 26th April. The market price seems to have been fairly constant at tha' time, but we lay stress on these words the measure of damages his prima facie to be, obtained." They did not say as they would have said if my learned friend were correct, that the measure has to be ascertained and reckon d as
CHINA OVERLAND TRADE REPORT.
contract was made for the delivery of yarn at a certain price. The yarn was not delivered when it should have been. The plaintiffs forbore their insistence of delivery at the request of the defendants, end still it was not delivered. They had, in effec', postponed the date of the breach of the contract fill the date when the plaintiff withdrew forbearance and insisted on delivery. The plaintiffs claim at the rate of $120, and I think they are to be given that sum as the measure of calculating the damages. I do not think there is any necessity for reference as the evidence here is all that could have been given on reference. Therefore judgment must be given for the plaintiffs for the amount claimed.
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four-in that house, but six more were lost in house in Square Street which caught fire also, The reason for the crime, was the usual reason of defrauding insurance companies. The ground floor of the house in question was kept as a Chinese herb shop, recently insured for $1,500. I s'all prove that an attempt was made get it insured for a larger amount, and the evidence will go to show that there was nothing in the shop. The prisoners' statementi subsequently made at the Police Station did not contain very much, but were totally inconsistent with the statement made at the time One prisoner said he blew out the lamp at ten o'clock, and the other said the fire was caused by a lamp falling. One of the prisɔners s‹id an old kerosene tin upset. Several kerosene tins were afterwards found. The statements were totally inconsis Mr. Pollook-I should like a little time to tent with the facts. consider the position.
Hon. Mr. Sharp-I am prepared to call on the other case.
+
His Lordship-The case can be called at the conclusion of the Criminal Sessions.
Saturday, 18th February.
IN CRIMINAL JURISDICTION..
BEFORE SIR H. S. BERKELEY (CHIEF JUSTICE).
ARSON-THE HOLLYWOOD ROAD HOLOCAUST.
Chang Chung and Tang Hop were charged: Setting fire to a dwelling house (No. 168, Hollywood Road) persons being therein; (2) setting fire to a dwelling house.
Hon. Mr. E. H. Sharp, K.C., Attorney General, instructed by Mr. F. B. L. Bowley, Crown Solicitor prosecuted; the prisoners, who pleaded not guilty, were not legally represented.
The following jury was empanelled :-Messrs. W. S. Brown (foreman), É. C. Wilks, E. Thomas. E. Smith, P. Plage, J. McCorquodale
and F. Kiene.
Hon. Mr. Sharp said:-Gentlemen of the jury, these two persons are charged with setting fire to a dwelling house in Hollywood Road on the 12th January, there being at the time several pople sleeping in the house, some of whom were unfortunately burnt. These two the shop on the ground floor of the dwelling men were the cook and the coolie employed in house where the fire broke out. The facts are that at two o'clock in the morning a Chinese police sergeant off duty was passing along Hollywood Road near the shop, and heard a shout of "fire." He then saw the first prisoner standing, fully dressed, at the door of this shop looking into the shop. the door being open. The sergeant got out of the chair in which he was and went to the open door and looked into the shop himself, but could see no fire. The sergeant was naturally suspicious and got hold of the man, and immediately after that the other man rn out of the door and the sergeant took hold of him.
Immediately after that fire suddenly broke out in the shop, and was accompanied by A strong smell of kerosene and dense volumes of smoke which could only have been made by kerosene : and immediately after that the whole place was in flames. The sergeant said to the prisoners His Lordship-Apparently you dispute thatThat is your doing!" and the first prisoner one wishing to speculate on secret information answered "My master ordered me to do it." he obtained would be entitled to sp culate on
The sergeant said "where is your master." and the price he was buying at Say that informa- tion had been rec-ived a week previously of
the prisoner said "He has gone to Canton."
such reliable and confidential character that
iquidated damages. What they say is that "the measure of damages has prima facie to be ob ained." It is only prima facie damages which of course, in perhaps ninety-nine cases out of a hundred would in England be a real measure of damares; the plaintiff would, in fact, have gone into the market and bought the goods and would claim the real loss he sustained.
speculating was an absolute certainty. That, in fact, the market die rise, but that the goods are not delivered. Is the buyer not right to recover what he would have made if the contract had been fulfilled? I think the measure of damages
is what could have been made if the contract had been carried out. ·
Mr. Pollock-The loss must be an actual loss His Lordship-If I enter into a contract in December for goods to be de'ivere 1 in January at $100 per bale and in January the goods onst $131 per bale it is my right to claim damages at $30 per bale, the difference between the contract price and the market price when the
contract hould bare been fulfilled.
JUDGMENT.
In giving Judgment His Lordship said:-I do not think I can do anything else than give judgment for the plaintiffs for the amount claimed, for the reasons are so obviou. This
A
tradesman had just passed the shop and hearing
a noise went back, and arrived on the scene
Evidence, a repetition of that given at the Police Court and reported in the Daily Press, was then led.
The first prisoner said that a kerosene sın produced was used for cooling tea.
Inspector D. Gourlay_said :-Three bodies were found in No. 168, Hollywood Road. One, that of a woman, was found" on a beam în the back part of the second floor where the fre did not reach. The bodies of two children had fallen with the debris on to the ground floor. One man was burat and escaped, and died on the following day. In 39, Square Street. on the first floor six bodies were afterwards found on a part of the floor not burnt away.
The prisoners again declared that they were not guilty.
In summing up His Lordship said:-The prisoners are charged with perhaps the most heinous crime which could be committed. That is, setting fire to a dwelling house in which people are sleeping. In this ca*0, whatever was the cause of the fire the results
have been terrible in the extreme. No less than ten persous have been burnt to death. One witness called said how he was awakened by hearing a disturbance in the street, and going
to see what it was discovered that there was a fire in the room below. He just had time to pick up one of his children, a boy, and escape to the upper floor, and with the assistance, of
he was unable to save his wife and two other one or two friends, escape to the adjoining house by breaking a partition. Unfortunately
children, the children found in the debris. below and wife on the floor of the second story. This is all very terrible, but what you
are concerned with here is the occurrence and not the effect-whether the prisoners are or are not responsible for the fire. The charge is that they deliberately, acting on behalf of the man who had insured the ground floor where he kept a drug shop, set fire to the shop.
After some further remarks by the Chief
Justice, the jury retired to consider their verdict. A verdict of guilty on the first charge was returned.
His Lordship, addressing the prisoners, said that if h sentenced them to death, the sentence would not be too severe, but he had not the power to do that. The law, however, gave
him
power
to
on inflict
them a terrible
penalty, and he intended to inflict it-imprison- ment for life.
The N. C. Daily News saya:-Qar streets
have been full of Russian non-combatants from Port Arthur during the holidays, and as these
visitors are likely to be with us for another ten just as the prisoner was saying "My master days at least, we are glad to be able to bear order d me to do it," and he said "You will be testimony to their generally excellent deniean- punished for this! and the prisoner made no
our, notwithstanding the difficulty they have in reply. Others will sperk for the strong smell making their jinricshamen understand where of kerosene and of the extraordinary rapidity they want to go. Their pockets, almost with- with which the fire spread, which could only
out exception, are full of money, for up to the have been caused by kerosene. The police surrender they were earning from eight to then came up and too the prisoners under twelve roubles a day in Port Arthur. This arrest.. The house was a veritable death universal wealth is proving rather embarrassing trap. The houss in Hollywood Road and to the captain and agents of the Princess Marie, Square Street stand back to back, but the which is to take away a large contingent of level of Square Street is very considerably them. Hitherto in a steamer crowded withi above the level of Hollywood Road, about three emigrants it has always been possible to find storys higher. There are three storys in Holly-many who woul! gladly assist in the stewards'
and cooks' departm uts for a bonus of fifty or wood Road which may all be described as basement houses, none opening into Square hundred dollars, and the assistance is urgently Street, the exit being into Hollywood Road. required, but these men are so well off that they The only exit from the upper floors of th's have been approached in vain, “We'ye got Hollywood Road house was cut off with the plenty of moner, why should we work reset that not only were several lives lost reply to the offers made them.
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