March 25, 1905.]
the breach of any condition to be fulfilled by the seller can only be treated as a breach of warranty, and not as a ground for rejecting the goods. So that if there had been any breach of a condition, such breach would not entitle the defendants to reject the goods. But it was argued that though the buyer may not reject the goods, yet he may set up against the seller, in an action for the price of the goods. a breach of warranty in diminution or extinction of the price. I must therefore inquire whether this remedy for breach of warranty is made good by the defendants.
By the term "breach of warranty" is meant (I) a breach by the seller of a warranty which is a warranty by the terms of the contract (2) a breach of a condition, express or implied, which the buyer has elected, or has been com- pelled, to tre it as a breach of warranty.
Here there has been no breach of a warranty appearing on the face of the contract. Has then the buyer elected or been compelled to treat the breach of condition as a breach of warranty? Assuming, contrary to my opinion, that there has been a breach of condition, which would have entitled the vendee to re- padiate the contract at once, I think that, when the vendee in this case accepted the goods, he elected to treat the breach of condition as a breach of warranty and to go on with the con- tract. think, too, that his right to set up against the seller the breach of warranty in diminutio: or extinction of the price continued in force until the seller brought an notion for the price. The onus is on the vendee to prove the amount by which he seeks to diminish the price and to prove that the goods are worth nil by way of extinc. tion of the price sued for. If he sets up either a reduction or an extinction he must prove the difference between the price contracted for and the real value. He has not made ny attempt to prove this. It is not sufficient, in extinction of the price, for the rendee to state that the goods are worth nil to him for the purpose for which he bought them. He might have sold the goods by auction. If the goods had fetched say only 25 per cent of the contract price or there had been no bid for the goods, then there might have been some evidence to go to a jury in diminution or extinc tion of the price for which action was brought. How far lapse of time between the delivery and the return of the goods would have discounted the value of that evidence, I cannot say. There will be judgment for plaintiffs with costs.
Wednesday, 22nd March.
IN ORIGINAL JURISDICTION.
BEFORE SIE H. S. BERKELEY (CHIEF JUSTICE).
This
MUI BUK U. Y. WO CHUK 82.
was
a claim for over $5,000.
The
plaintiff did not appear and was unrepresented. Mr. H. G. Calthrop,'instructed by Mr. Steaven son (of Messrs. Deacon, Looker and Deacon) appeared for the defendant.
Judgment was given for the defendant with
costs.
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On the application of Mr. Calthrop an attach. ment on the defendant's property was removed, and the defendant was awarded damages against the plaintiff in respect of same.
IN SUMMARY JURISDICTION,
BEFORE HIS HONOUR Mɛ. T. SERCOMBE SMITH (PUISNE JUDGE.)
YEE WOO CHEONG FIRM ». EASTERN AND
AUSTRALIAN STEAMSHIP CO., LD. This action, commenced on the 21st March was continued. The plaintiffs claim $1,110.60 reduced to $1,000 so as to come within summary jurisdiction. Mr. Norman Ferrers, instructed by Mr. R. A. Harding, appeared for the plaintiffs, and Mr. H.E. Pollock, K.C., instructed by Mr. J. Hays (of Messrs. Johnson Stokes and Master) for the defence.
遙
The plaintiffs, merchants carrying on business at No. 101, Bonham Strand East, allege that they have suffered damage by the defendants' failure to carry and deliver to them certain goods (54.96 picals of sandalwood at $20 per
CHINA OVERLAND TRADE REPORT.
picul). The goods, it is stated, formed part of a consignment shipped at Timor about the 11th October 1904 on board the defendants' a.e. Empire, for the purpose of being carried by the defendants to Hongkong, and there delivered to the plaintiffs for reward. The Empire duly arrived at Hongkong on the 20th October 1904, but the defendants did not deliver the said goods to the plaintiffs.
The defendants deny that any goods were shipped at Timor about the 11th October 1904 on the Empire for carriage to Hongkong and delivery to the plaintiffs, other than the goods which were duly delivered by the defendants to the plaintiffs after the arrival of the Empire here viz., 3,074 pieces, 27 baskets, 76 bundles and 32 bags of sandalwood or rootwood.
The case was further adjourned.
Thursday, 23rd Maroh.
IN BANKRUPTCY.
BEFORE SIR H. 8. BERKELEY (Chief JUSTICE).
The Kam Tak Tai firm was called, but no one responded. Mr. G. K. Hall Bratton appeared for Chan Chun Man, who denied partnership. Mr. F.B.L Bowley asked leave to withdraw from the file a declaration stating that certain persons were partners in the Kam Tak Tai firm. Mr. Brut- ton withdrew his summons as to the issue being
tried with relation to the partners in the firm.
An order was made for the declaration to be withdrawn from the file, and also the summons as desired.
Hoji Yacobji, a clerk in the employ of Messrs. Wilkinson and Grist, was examined He stated that he owed Messrs. Wilkinson and Grist $2,100, which money he had borrowed to pay off loans contracted. Between 1901 and 1904 he bor- rowed $1,200, in ord r to carry out some private business; and also borrowed several hundred from Indians. Bankrupt was unmarried and lived in Lascar Road. The fire which occurred there about two years ago destroyed his furniture, which was uninsured. He paid interest on the borrowed money at rates from six to ten per cent. per month-72 to 120 per cent. per annum. Hismonthly wage was $80 and his expenses, including interest, were $200 per month. He supported his aunt, nieces and nephew, ten people altogether. He submitted a composition to pay his creditors 50 per cent. at the rate of $40 per month out of his salary.
The Public examination was closed.
Mr. O. D. Thomson appeared on behalf of two managing partners in the Wing On bank and applied for a receiving order against them. A petition was signed by them. Sir William Goodman ruled that the English Bankruptcy law which provided that a number of partners in a firm could not apply for a receiving order with- out the consent of all the partners was binding. The rule was not included in the Hong
kong Ordinances, though the Chief Justice declined to grant an order as asked, remarking that if any creditor cared to bring an action he
could do so. The liabilities of the debtors was $90,000 odd and their assets $16,000 odd.
IN ORIGINAL JURISDICTION.
SCHWER AND OTHERS ▼, UFFEL.
This was an application made by the def- fendant in this action-which was brought by the plaintiffs, who sought an order for the dissolution of the partnership existing between them and the defendant under the name of Schwer Uffel and Company, of which firm the defendant was the managing partner in Hongkong, the plaintiffs being all resident in Europe-for the discharge of an order made by the Court on the 3rd March instant appointing & Receiver of the said business. The plaintiffs previously offered to allow the defendant to continue in his management of the business of the partnership under the super- vision of a chartered accountant in the place of the Receiver originally appointed.
The defendant asked for the complete dis- charge of the Receiver and objected to a Receiver of the business being appointed.
The Court refused his application and direct- ed that Mr. Lowe, Chartered accountant, be ap- pointed Receiver with power to employ the de-
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203*
fendant to assist him in the management if - desired. The plaintiffs to give an undertaking as to damages. The Hon Mr. E. H. Sharp K.C.,_instructed by Messrs. Deacon Looker and Deacon appeared for the plaintiffs and Mr. H. E. Pollock K.C., instructed by Mesars. Dennys and Bowley appeared for the defendant.
5
IN SUMMARY JURISDICTION,
BEFORE HIS HONOUR Mɛ. T. SɛɛCOMBE
SMITH (PUISNa Judge).
сод-
The action Yes Woo Cheong firm v. Eastern and Australian Steamship Company, Limited, was adjourned sine die. Evidence was oluded, but counsel ́ have yet to address His Honour. Mr. H.E. Pollock, K.C., for the defence, is employed in original jurisdiction for the rest of the week.
COMPANIES.
THE CHINA SUGAR REFINING CO. LTD.
ANNUAL GENERAL MHETING,
The twenty-seventh annual general meeting of the China Sugar Refining Co., Ltd, was held at noon on 23rd March, at the offices of the general agents, Messrs, Jardine, Matheson and Company,
Hon. Mr. W. J. Gresson was in the shair and
there were also present Sir Paul Chater, Mesara, A. G. Wood, E. Shellim, and A. J. Raymond (Consulting Committee), Mr. J. Barton (88- oretary). Moses. A. Rodger, M. S. Northcote, E. S. Joseph, S. J. Michael, J. R. Michael, E. J. Moses, W. H. Gaskell, H. N. Mody, F. Smyth, W. A. Cruickshank, E. E. Hinds, A G. Stok-a, G. T. Vaith, T. 8. Forrest, P. C. Potts, A. Turner, Ho Fook and others.
The CHAIRMAN said-Gentlemen,—In ac-
cordance with local custom I propose to take the report and accounts as read. In the year 1904 there was a remarkable advance in the price of sugar all over the world. This rise may be attributed principally to these causes :-(1) the gradual working down of the enormous stocks which have accumulated in Consequence of the overproduction in the years im- mediately preceding the date of the Brussels Convention; (2) the discovery that in consequence of the unfavourable weather in Europe it was necessary to materially reduce the estimate of the growing Beet crop; and (3) the knowledge that the world's consumption of sugar was fast overtaking supplies in hand and visible in the near future. Under these circumstances prices in our censuming markets continued to advance, and we were able to obtain a very satisfactory margin of profit on the refining of our stock of raw sugar, which had for the most part been acquired while prices were comparatively low. Another noteworthy feature of our business during the period under review was the demand for refined sugar in China, our natural and best outlet, and I am pleased to say that consumption there showed a considerable in- crease over that of any previous year. Turning to the accounts, and the appropriation of profit recommended, you will notice that we propose writing $50,000 off the Swatow property, which I regret to say seems likely to remain un- remunerative for an indefinite period, and to put aside $450,000 to form an equalization of dividend fund. Bearing in mind the reverses suffered only two years ago, when nearly a third of our capital was for the time being lost, this will, I am sure, meet with your hearty approval, (applause). The experience of recent years also points to the expediency of forming a Repairs and Renewals account. It is obvious that machinery and plant depreciates with use, and that renewals are constantly being required, to meet which in bad times, there is often no money available, and it is therefore highly desirable that a fund should be created to provide for the outlay on plant, which must from time to time be necessary, and to enable us to acquire any of the new improvements in machinery which are frequently being brought under our notice. For this purpose we propose to appropriate $150,000. I have pleasure in testifying to the seal and diligence of the Com- pany's staff, and as a mark of appreciation you