September 18, 1905.]
Was
CHINA OVERLAND TRADE REPORT.
a
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We have no evidence that the law of China would prevent recovery after such an examina- tion if the goods proved worthle s. And Imiy say, in passing, that even if the obligations under this on ract were to be judged by English law, the case falls well within the cases laid down in the Ordinance on sales in which the doctrine of caveat emptor is excluded. This statement of what I believe to be the liw applicable to this case may be tested in the concrete by reverting to the simple example already given; supposing the contract had been for the supply of several hundred tins of beef. Now, though when the plaintiff made his examina ion and took delivery, all the tins he opened contained beef, yet if it afterwards transpired that the large majority of the tins contained mutton, it seems self-evident that the defendant could not say: 3 ou examined them, found beef, said that the tins contained beef, therefore they do contain beef," and this on the evidence before me is perfectly analgous to the present case. The defendant seemed at one time to suggest that the orackers were in fact good. But this was not insisted upon; nor could it be, for the evidence is against him. He did suggest, however, that the crackers were in fact low grade crackers which he ordered and which could not be expected to make much noise and often none at all. But part of other party can only decline to take part in the his case is that the orackers which were proceedings at his peril. It may be costly; but tried were good, gave the proper noisy that is inevitable to the graut of a Commission, explosion and I suppose the proper percentage which is part of the regular procedure of the of explosions, so that his own case is against courts. From this evidence then it appears him as well as the evidence on this point. that the orackers were bad in every respect: Deterioration during a long sea voyage is what that innumerable complaints were received I should have thought might have been set up from the ultimate purchasers that they with some prospect of success. But when I put not the question to one of the witnesses, the answer, did not explode and that, they were
was that there would be no deterioration and in any respect so good as those of the same grade which had been supplied by the defendant that answer was not challenged; there had never firm on previous occasions. One other point is been deterioration before. There remain mere clear from this evidence that the detailed accident or fraud. Either are possible though 'not necessarily on the part of the defendant examination of the crackers was made in con-
firm, who did not make the crackers themselves. sequence of these complaints: that this was independent of the examination made on the But this would be no defence to this action. arrival of the goods and that it bore out the Whatever may have been the cause of the complaints which had been made by the crackers being defective, as Carlowitz and ultimate purchasers. So far the case seems Company have suffered by it, so also must the to me to be free from doubt. But the stress of defendants suffer, though perhaps they may be the defendant's argument was on the fact that able to recover from the makers who supplied not only Carlowitz and Company in Canton but them with these inferior goods, Judgment also Champion and Company in the United must, therefore, be for the plaintiffs with costa States had examined the crackers and accepted in accordance with the particulars of February them as good and merchantab'e. Further that 23, 1904. when the complaints came from America the plaintiffs strenuously supported their original opinion that they were good. And lastly, that though the examination might have been, as was suggested, superficial, the examination in the United States need not have been so.. Under the circumstances can the plaintiffs now be heard to say that the orackers were not good? On one other point I have no doubt: that al that could have been done in the way of giving notice of the complaints and in verifying them as far as possible, was done both by Champion and Company to Carlowitz and Company and by them to the defendants. The que ton is not an easy one, and so far as I know, is not covered by authority; at least, none was cited. But after giving the question the fullest consideration i have come to the conclusion that it is impossible to say that if the goods are not in fact what a purchaser contracts for he is estopped from recovering because he examined them in the customary way and did not The discover that they were were diff rent. law of ex oppel applies to words or conduct which induce other people to act to their prejudice on the faith of them; not to words or conduct which, as in this case, have
оп influence other people's actions no Again it was not a term of contract that this examination should be conclusive and bar subsequent recovery: nor in the absence of any proof as to the law of China can this be said to be an inherent condition of the contract. Nor again was it a term of the contract that there should be any examinati n at all as a condition of acceptance. The examination was raid to be
is an important one, as it is not improbablement must prove that the Chinese law warrants that many contracts are made in the East the justification he puts forward. The solution under circumstances si ilar to the present. of the question whether the defendants suppliel The leading case on the subject is still orackers in the ordinary sense of the word is Jacobs v Credit Lyonnais (12 Q B.C., 53 ) simplified by the fact that there were undoub- and it has been worked out at som 1-ngth in tedly previous dealings between the same parties Dicey's "Conflict of Laws." The question of the in respect to the same quality of crackers, and intention of the parties may be at once disposed that there had been no complaints such as those of. It is not exer ssed; and it cannot be which form the subject of this action. The implied either in the cas of the Chinam u who plaintiff knew what he wanted: low contracted, or the banch house of the German grade cracker, but still a cracker; and the firm, which negotiated the purchase in Canton. defendant knew what he was expected to supply. With regard to the pace of performance tie The facts as to the quality of the crackers question is more difficult. The first presumption supplied rests entirely on the evidence taken is that the law applicable to a contract is tus on commission in the United States of the per- law of the place where it was made. The sous to whom they were subsequently sold by second presumption is that wh n the contract Carlowitz and Company. These witnesses were is made in one country to be performed wholly not cross-examined. Their stit ments are not, or in part in another, then the law is that therefore, unchallenged and must be taken as of the place where the performance is to true. Evidence taken on commission must be také pace. To this second presumption treated pr cisely in similar way as evidence Mr. Dicey adds "especially as to the mode of given at the trial. If it is intended to question performance." The two proposit ons are not its veracity or to draw other inferences from too el arly defind: for the learned author says it than those which appear on the face of the that the lex loci contractué “my apply to a language used by the witnesses: this must be contract partly or even wholly to be performed prepared by cross-examination. Nothing can be in another country"; which practic lly destroys more dangerous for the other side to allow the the value as a legal proposition of the second evidence to be taken without being represented presumption. I think the only way of ascer. When once the order for the Commission has taining what law is applicable to any yeu stb en mad on the application of one party the of circumstances is to determine clearly what the obligation is which is alleged to have been broken. If it is connected with the mode of performance, as Mr. Dicey suggests, then clearly the law of the place of perfo mance must apply, as in the Credit Lyonna's cas, where the question was wh-ther the French Law of force majeure was a suffic.ent excuse for failure to perform a contract in which Eng. land was the place of performance. If the breach in this case had arisen in connec- tion with delivery in Hougkong. th n the law of Hongkong would apply. But in this case the breach in connection with the quali y of the goods d-livered: the question being wh ther the crackers were what they professed to be, or whether, to adopt English law terms, the rule as to implied conditions applied or th doctrine of caveat emptor The law applicable to this obligation must be the law of the place of delivery and this was, in my opinion, Canton. It was there the goods were examined and accepted by the person who bad charge of the negotiatious for the plaintiffs, in the presence of the defendant; it was there that the plaintiff decided whether or no he would accept the crackers. The transport to Hongkong was, it is true, part of the original contract, but that occurred after the question whether the goods were in accordinos with the contract had been decided. In the particular of this preliminary examination the ficts some. what resemble those in the Credit Iyonnais case; for there, as here, there was to be a preliminary examination and approval before actual delivery. his was held not to te sufficient to disturb the presumption that the law of Eagland where the contract had been ma e applied to the contract. In this case by parity of reasoning the fact that the examination was to be made and approval given in Canion seems to me to enforce the presump- tion in favour of the lex loci contructus. I think, therefore, that this is a Chinese contract. I indicated at the trial that this might be the view I should take; the defendant answered that the plaintiff had filed to show what the law of China is. But it is the defendant who has in reality appealed to the Sale of Goods Ordinance and to the ru'e caveat emptor: he has failed to show that similar principles are in force în Chin. I cannot assume that they are. There are, however, some things that a Court may presume; in such a case as the present that it is part of the law of China as of every other country, that you are entitled to get what you pay for; that if you buy beef an action will lie against the vendor if he supplies yon mutton. So if you buy a cracker you are entitled to get something which does orackers are supposed to do: explode with
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Mr. H. E. Pollock (instructed by Mr. H Hursthouse, of Messrs. Dennys and Bowley), who appeared for plaintiffs, asked if that would be judgment in accordance with their last particulars, with costs.
His Lordship-Yes..
Mr. Pollock then asked for the judgment to be immediately executed on the grounds that defendants were not resident in the colony. In the circumstances it was desirable that the judgment should be executed as early as possible. His Lordship did not consider there was any probability of defendants absconding, and declined the application.
Mr. Calthrop (instructed by Mr. H. W., Looker), who acted for defendants, asked for a stay of execution on the ground that there was another action pending.
His Lordship said he could not take notice of another action which was going on.
Mr. Pollock said the circumstances were not the same in that action as in the other where his clients were defendants, because they were resident in the colony,
Mr. Calthrop explained that his clients were bringing a third action against the Carlowitz Company.
;
Discussion followed on the question of security.
His Lordship decided to sty execution and leave over the question of costs pending the settlement of the third action. YU KU UN v. WONG KI HANG AND ANOTHER, In this action plaintiffs claimed that defendants be ordered within ten days from the
legal mortgage in favour of the International Banking Corporation and that in default of the defend nts' execution, the Registrar be ordered to execute such mortgage.
a certain satisfactory noise, which is in fact a customary, though not an ess⚫utial custom of making of an order to execute an indentura of tracker. The whole question in this case is whether the crackers supplied did fulfil this essential condition. I hold, therefore, that fur- ther proof from the plaintiff as to the law of China on the subject is unnecessary and that the defendant, who desires to justify non-fulfil
the trade, which puts it no higher than the examination which every purchaser makes of goods bef re he accepts d-livery. It cannot be treated as a purchase after insp e ion, because obviously the whole of the goods cannot be inspected, but only a very small proportion.
Mr. H. E. Pollock, K.C. appeared for plain. tiff. Defendants entered no appearance,