March 4, 1907.]
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CHINA OVERLAND TRADE REPORT.
insured. A value policy could be avoided in 'toto by proof of frau 4, but short of tàis the value cannot be debated in Court. Mr. Siade then proceeded to quote authorities as to whet a valug policy was, ani what the effect of it was.
Die cise was ljourned.
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Thursday, February 28th
IN ORIGINAL JURISDICTION,
BEFORE SIR FRANCI Pro TT (CHEF JUSTICE).
AN INSURANCE CLAIM.
The action brought by () Yau-tasi against Fook Oa Assurance and Godown Co. to reourer & 000 said to be dɑe on a policy of insurance, was continued.
is Lordship, in delivering formal judgment,, said: The questions raised in this case are of such importance that I propose to take time to con- sider them; but 1 have arrived at the co clusion ou certain facts, on which I can give judgment for the plaintiff, and I think in the interests of both parties that I should give formal judgment at once. I find the following facts: -'I'bat there is proof of the death of Li Fuk at the date alleged by the plvintiff, if it is necessary to prove it. That the mortgage was fraudulent on the part of the pretended mortgagor, and was not made as alleged, by Li Fak, he being at the time dead. That although I do not think there is any evidence to connect Ma Fu-sam with the frand, yet
I do not the think he can be described as A bona fide, Ld. mortgagee. There is a wide gulf between mala fides and bona fides. In ordar to obtain the benefit which it is contended accrues to mortgagees with a Registration Order where s will of immovables has not been registered within (in this case) one year of the death of the testator, assuming the plaintiff's coa- tention t be sound on this point, the mortgagee must be bona fide; and a man who leads money on mortgage in unusual and reckless a fashio cannot be described as acting in good faith within the ordinary meaning of these words 1 n thes findings the plaintiff is entitled to judgment. I shall give a considered judgment on all the points of law raised when I bave leisure fully to go into them. 'n this case I do not think the plaintiff's delay in obtaining judgment should disentitle her to
oosts.
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IN INSURANCE CLIM.
O Yan-tsai brought an ac ion against the Fook On Assurance and Godown Co., Ld., to recover $41,001 said to be due on a policy of insurance.
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Mr. M. W. Slade, instructed by Mr. C. F. Dison (of Mr. John Hasting's office appeared for the plaintiff while Hon Mr. H. E Pollock, K... instructed by Mr. Jackson (of Mesars, Jolinson, Stokes and Master) represented the defendants.
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thing more hopelessly unprasticul than the of admission of evidence may be stated. Any. antiquated rule as to "patent ambiguities" !
can be admitted, but the Court mat decide cann-t well be imagined. No evidence
Lon manifestly insufficient data, whereupon the Losing side will promptly appeal, and
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His Lordship adjn ned previous day to
the case on the consider the point as to whether the policy laid before the Court was a ralue policy. His decision was as follows:
The question raised in this section is whether the policy sued on is a "valued policy." It is raised as a point of law at the trial and it is a convenient method of raising the question. I made no order on the summons asking that it should be so treated and this requires so explanation. It seemed to me possible that in riew of the ambiguity in the words used it I might be pee ssary to admit evidenc on the question which would be impossible if the course suggested had been adopted The view take on consideration is that my conjecture was tight and that evidence will have to be admitted. In the Chines · policy there is a reference to the conditions con'sined in the English form on the point as to valu, the form of words used in the English policy is a definite statement that the value of the s ip is agreed at so much -- bat the Chinese words, which contain the contract entered into between these pirties, must be alone referred to as expressing the inte fin of the partier The claus referring to the Engish form cannot be held to control the, Chinese words actually used. Die words used(the English gives a fairly FINCH rendering of the Chinese) are the estimated values of the ship is $95,000," and this is introduced into the ment. There is no reservation on the part of the insurance company, as is usually made in the case of "weight value and content," there- fore it cannot be taken as a mére xixloment made by the assurer. not assented to by the compaur. The agreement between the parties is therefore this :- was
We agree that the estimat-
Mr. M. W. Slade, instruct-d hy Mr. C. F. Dizon (of Mr. John Hasting's office) appeared for the plaintiff, while Hon Mr. H. E Pallook, K.C.. instructed by Mr. Jackson (of Messrs. Johnson, Stokes and Master) repris uted the defendants.
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In the statement of claim it was said that the plaintiff was a merchant carrying on business at Macao while the defendant company was established in Hongkong. On September 17th, 1906, the F.8 Macan was at anchor in Hongkong harbour. By a policy of insurance issued by the defendant company the day before the typhoon the plaintiff was insured against the total loss of the steamer hy perils at sea for $40,000. By the terms of the policy the steamer was valued at $95,000, and it was agreed that $55,00 of the said value should be insured by the owner himself, and at with any other person. The plaintiff paid a premium of 81.200 and stamp duty. "he steamer totally lost in Hongkong harbour, and the defendant company repudiate all liability under the policy. Tie plaintiff therefore claimed $40,000.
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agree.
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try and get the decision of older Court: which I may say frankly would
probably be tha reverse of mine whicherer way mine was giren : for this is juxt one of thes oises where, as I think, six men would hold ons way, and half a doan men the other. It is obviously better for both sides that
I should hear evidence in order to try and ascertain what the parties really meant whɑɑ they agreed to use this form of words. So the point which I thought on the summons might ambiguity? In Simpson v. Margitzòn (11 Q.B. Bris · hasarisen : is this a "Tatent" or a "patent" at p. 26) the use of the word said to involve a patent ambiguity.
month Was
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In Burgis v. Wickham (3 B. 8 8, 669) a worthy " was aid to have been used in a policy, not simpliciter, but secundum quid, sud evil-ne› was admitted to show how it was used in the instance,
mere
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These fucts here are not on all fours with that oven hat this is int a case of a uninte ¦ „ble contract, but one where by the use of a word capable of being u-ed in two I am of opinion that there is a latent an ways, an ambiguity has arisen, and on the whole ruity in the use of this term “estimate, certainly is not patent as in the g f the word "month" for there everybody ku ft is used amennt of care in the statement of what the in two senses; but here it reguíres a certain
ambiguity really is. I am not sure whether the parties intended t· agree that 895,000 was to be the estimated value of the vessel for all purposes of the policy or whether this was adopted as я conradient figure for what
I my call the *tarting point of determined what the actual value was. There- the negotiations, leaving it to be sub-equently
fore evid‐nes must be admitted to enable me to arrive at the real intention of the partiesl This will enabl⋅ me first to decide whether this is a valued policy or not: if I come to the couension that it is, then another point will arise as to proportioning the risk between the Insuranc› Company and the assured. In the erent of my deciding that it is not a valued policy, then evidence of ac'ual value must be given,
ed value of the ship is $95, 00)," and I am asked to hold that that amounts to an agreement as to value making it a valued policy. But the word estimate may be used in one of two ways, In the statement of defence the defendants either as a definite expression of opinion as to get out that the steamer was not valued at value, or as a doubtful expression of probable $95,000 or any other sum by the said policy.
or possible value. This is an ambiguity which It was merely stated therein to be estimated in I can b st explain in the following way. be of the value of $95,000 and such estimated incline ไก the
that op'nion value
ward was placed upon the steamer by the estimated is used very much in the same plaintiff bimself, who falsely represented her to way 88 Sir Montague Smith use<! it in be of that value: such extimate of value was not his judgment in Barker v. Jansen: that assented to or agreed to by the defendants is, that it was the value actully greed upon. The defendants admitted that the plau- But the circumstines of the two cases tiff "greed by the said peley that he
are nut at all parallel and 1 CAN would as
owner insure the steamer to the say that as soon 24 1 inclius to hold this value of $55,000, and would not reinsure to be an agreement as to value, so BOOD her with
any other p-800 The defend. I does the ambiguity arise, making ants denied that the plaintiff performed the feel that I should not be expressing a sound said agreement, but said on the contrary that judgment which I myself could believe in. the value of the steamer at the time of the have therefore to decide whether pridence may taking out of the policy was only $25,000 or ! be admitted to show what the parties really $35,00). The defendants further denied that meant when they were using this word they were liable to the plaintiff in the full sno
There are half-a-dozen statements in the case of $4,000. They were only liable under the and the books which Day
referred; terms of the policy and under the circum. to in favour of admitting evidence to explain stances aforesaid to pay the plaintiff 40/951bs | the meaning of the agreement; for example, of the actual real value of the steamer, and the Bramwell B. in Wood v. Pritchard : (L. R. defendants were ready and willing to pay the Ex. at p. 70) said We not only may, but plaintiff such amonat,
must, in the case of every contract, havə evidence what are the circumstines to which it relates"; and Addison expinds this in a loug paragraph which states the law much more loosely than any other writer; which is useful in this way; it shows how broadly, and perhaps inaccurately the law on this question'
Mr. Slade stated that on the pleading the only inne was whether or not the policy was a value one.
The effect in law of putting the value of a thing in a policy was to take out of the question which had to be decided by the Court the question of the value of the thing
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(FROM OUR
MACAO.
CORRESPONDENT).
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February 27th.
THE POST OFFICH AGAIN,
We are still without the proper stamps for our letters to Hongkong and Canton, and are practically compelled to use six cents stamps which means paying double for all your letters. Can nothing be done to remedy this state of affairs?
NEW CONSUL.
In the Jorual dos Colonias there his appeared correspon lanc from Yokohama urging the appointment of a certain local Portuguese resident as Consul in that port, but I understand that the Government have already appointed Count Lagusca for the post. This is wiser, for in a place like Japan an independent and popular man must hold the post of Consul in preference to a local resident in the employ of a foreign firm.
DEATH OF MR. F. D. DA C STJ.
Macao branch of the Ranoo Nacional Ultra- Mr. F. Duarto da Costa, the manager of the mariso, died on Friday, 22nd inst., of congestion for a few years, and was on the eve of his de- of the langs. Mr. da Costa had been in Maoso
parture for a well-earned holiday at home, his successor having already arrived at Maono to raliere him. He left a widow and two obildreo. LAPPA CUSTOMS,
The commissioner of the Imperial Maritime Customs at Lappa, Mr. E. V. Brenan, and family are going home for a holiday by the Prinzess Alice on the 13th proximo.
CHINESE SUBSIDIARY COINS.
Notwithstanding the fact that we have bank here, we still have any amount of these debased notes of not less than five banks circulating coins in circulation. The premium is ROW $7.20 per $100,
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