September 14, 1908.]
the ospital employed in the carrying on of this firm, but the whole of this property was left in the hands of his agents for the purpose of carrying on the second term which he hoped to obtain.
The hearing was adjourned.
Thursday, September 10th.
IN SUMMABy JurisdictION,
BEFORE MR. H. H. J. GOMPERTZ (ACTING PUIBNE JUDGE)
AN INTRICATE QUESTION, William Barker and Co. sued the China Express Co., the claim being for the delivery of 10 bags of fire bricks ex the steamer "Indiana," the property of the plaintiffs, which was wrong- fully detained by the defendante, or, in the alternative, the value of such bricks, $120. The plaintiffs also claimed the expenses of trans- ferring the bricks to their destination, incurred through defendants wrongfully landing the
same.
Mr. G. E. Morrell (of Mesara, Goldring, Barlow and Morrell (appeared for the plaintiffs; and Mr. P. Sydenham Dizon (of Mr. R. A. Harding's office) for the defendants.
|
|
$
CHINA OVERLAND TRADE REPORT. Mr. Dixon said he intended to raise the point { that the freight should have been paid into Court. It was a condition precedent of the whole thing that freight should not only be tendered, but paid into Court and pleaded. Supposing his Lordship gave judgment for defenant, the plaintiff might be bankrupt,
His Lordship-I could easily make a condi- tional order,
Mr. Dixon-We have got the bill of lading and the goods, and if we refuse to give them up we can only be sued by the New York firm.
His Lordship-Whose property are they? Mr. Dizon-The people in New York. His Lordship-They have been paid for. Mr. Dixon-We have had no notice of that. I still take the point that they cannot succeed unless they pay the money into Court.
Mr. Morrell-We can pay it on delivery of the goods.
E. F. Ancott, shipping clerk in the office of Mesara Jardine, Matheson and Co., said when freight was prepaid they delivered the goods to the consignee whose name was on the bill of lading. If not prepaid, they were instructed to collect before giving delivery.
not.
8. D. Hiokie, manager of the China Express Co., stated that be received plaintiffs' through bill of lading, together with instructions to collect. Other people applied for their goods with payment of charges, but Mr. Barker did Knowing that he always made trouble about landing charges, witness sent notice to take delivery from the Kowloon bim
godowns the day after the ship arrived. Had he taken delivery then there would have been only a commission charge of $5. If the goods were damaged, witness was the only person who could claim against the ship. After receiving notice plaintiff refused to take the goods. Witness now claimed commission and expenses of removing the goods to the Com. pany's godown, altogether $12,50.
Cross-examined-When the goods were in Kowloon witness forwarded plaintiff an estimale of the amonat it would cost to land them in Hongkong ?
Mr. Morrell-How could you send estimate !
Mr. Morrell said that in April last his client ordered two sets of fire bricks from a New York firm, which were to be shipped to him here. The Company in New York apparently employed a firm of freight contractors to ship these goods, and the next thing his client know was that he had received bill of lading from New York, together with a draft for $50. The bill of lading stated that application for delivery was to be made to the China Express Co. That was the first plaintiffs had heard of them, as they had never dealt with them before. When plaintiffs applied for delivery they received an invoice charging $98 freight and $17.50, defendants' charges: that was, $10 for landing expenses and $7.50 for their commission. People nöt connected with the contract at all were endeavouring to make plaintiffs pay commission. | Plaintiffs sent round objecting to pay, and defendants withdrew the first bill and sent in a reduced bill for $12.50, which plaintiffs Witness-It's the custom. still refused to pay. The defendants then
Mr. Morrell -A very
im proper refused to deliver the goods, thereby You're consignee, are you not ?—Yes. compelling plaintiffs to bring this action. They And your instructions are to pay all charges were fighting on principle, because they would-To collect them. not be " squeezed." They had tendered a freight of $98.65 on the goods, which were valued to $120, which defendants refused to accept. He did not know how this freight was arrived at. In the ordinary way the goods should have been landed in the Kowloon Wharf and Godown Co's, godown and plaintiffs whould have taken delivery of them. This had happened several times before, and defendants had always made a charge which they paid under protest, Plaintiffs gave them notice at the same time that they would not have the defendants bandl- ing their goods. When defendants gave them notice they were prepared to take delivery.
Mr. Dizon wished to take a preliminary objection. This was an action for a specific delivery of chattels.
His Lordship-The property or its value! Mr. Dixon-It is the same objection as was taken here the other day.
His Lordship-That is an extraordinary proposition. It is not an equitable claim at all; is a legal claim.
William Barker said he traded as William Barker and Co., electrical and mechanical engineers and contractors. In April be ordered fifty sets of fire bricks from a New York firm, for which he paid $50 gold. He ordered them to be shipped to him. In due course he received a bill of lading and-a draft for them. Then he received a bill from the China Express Co. claiming $17:50. He returned it informing them that they had special instructions never handle his goods, Witness received a second invoice, with a chit attached. Defendants always penalised him, asking how they were to run their office if they did not make any charges, He had tendered the freight charges but defendants refused to socept it.
to
|
Cross-examined-The China Express Co. were not entitled to get anything from him. Witness only held the through bill of lading; he supposed the China Express Co, held the other.
AD
custom.
You are consignee when it suits you, and when you are not it does not ?-That's the way you put it.
Did you tell Mr. Barker's shroff that you were not paid by him and would take no orders from him F-I told him I was not employed by him and did not wish to land his goods.
|
His Lordship said he would take time to consider the question of custom, which was & rather intricate one, and adjourned the case sine die,
IN ORIGINAL JURISDICTION,
BEFORE SIE FRANCIS PIGGOTT (CHIEF JUSTICE).
A M
THE HONGKONG AND SHANGHAI BANK SUBD, The action was continued in which Lau Man Cho, otherwise Lan Hok Shun took proceedings to recover from the Hongkong and Shanghai Banking Corporation 34 title deeds which, plaintiff alleged, were his property, and were wrongfully detained by the defendants.
Mr. M. W. Slade, instructed by Mr. J. Scott Harston (of Messrs. Ewens and Harston) appeared for the plaintiff, while the Hon. Mr. H. E. Pollock, K.C., instructed by Mr. H. J. Gedge (of Messrs. Johnson, Stock and Master) represented the defendants.
|
|
against, say, the Wing Shing Loong the Lot Hing firms, were entirely separ distinct from the grounds of their claim the plaintiff as a partner in the Wang It was not sought to make the plaistin in this ose on the ground that "ourtain sig tures which appeared as drawers on bills of exchange must be taken as being equivalent fo bis signatures. It was a question of their being separate and distinot ground of liability altogether. For instance, there was absolutely no connection at all of any description between the ground of liability as between the defendantis and the drawers of the bills and the ground of lia- bility with which the defendants sought to charge the plaintiff as a partner in the Wang Fang on the ground that the proceeds of the billa runched the coffers of the Wing Fang. The defendants had obvious grounds of action against - bolh parties, such grounds being entirely independent of one another. The ground of making the plaintiff liable was that the Wang Fang firm, of these monies. The remedies could be par- in which he was a partner, had had the benefit sued absolutely concurrently against the drawOZE of the bills and against the plaintiff as a partner in the Wang Fang. There would not be any- thing impossible in one action being brought against them both.
point of ageney is absolutely abandoned. The Mr. Slade-1 quite admit that, after the defendants could agree possibly to bring an action, but it is equally certain they would not succeed.
Mr. Pollook said that, although a partner of his co-pactners in borrowing money and ased the name of a firm without the authority applying such money in paying off the debts of the arm, an sotion would lie. In this case there was authority to draw bills, and that authority was given to the plaintiff
The hearing was again adjourned.
Friday September 11th.
IN ADMIRALty JurisdicTION,
BEFORE BIB FRANCIS PIGGOTT (CHIEF JUSTICE).
INTERESTING SALVAGE ULAIM. His Lordship gave his award in the case in which Chan Tak Leong and Co. sund Mosers. Batterfield and Swire and the China Navigation Co. Ld., their oldim being for $10,833 held by defendante as payment for services rendered in connection with the stranding of the ma "Akashi Marn."
Mr. M. W. Slede, instructed by Mr. J. Scott Harston (of Messrs. Ewers and Harston) appe red for the plaintiffs, the defendants being represented by Sir Henry Berkeley K.C., instructed by Mr. H. J. Gedge (of Messrs. Johnson. Stokes and Master).
His Lordship first read the questions he placed before the Assessors, and then their answers. The questions, which are each followed by an answer, vere :-
1. Was the "Akashi Maru” in a position of extreme peril both with regard to the vessel, the cargo and the persons on board when she was on the North Merope Shoal, and when the salving operations, the subject matter of this action, were undertaken by the "Yoohow” and those on board her F
cargo; but with regard to the passengers they Answer:-Yes, with regard to ship and
were in peril, but not extreme peril.
His Lordship-It is suggested by both Amas- sors that the boats could have got with moderate ease to the shore four miles off, to leeward, with wind and tide, and could have made a second journey coasting up and them dropping down to the wreck, the weather improving. The people would have landed shore about fifteen miles as the crow fles Amoy, or, with improving weather, ons could have been sent round for assistance. signal “we are sinking". was hoisted" there does not seem to have been any immedia peril of her breaking up.
Mr. Pollock, in orening the defence, said they did not seek to hold the plaintiff as a partner in the Wang Fung firm liable on the ground that he must be liable if be signed the bills of exchange, but on separate and independent grounds altogether. The grounds on which they songht to hold the plaintiff liable were that 2. In her manoeuvres to take up the he was an undisclosed principal, and that the she did to the leeward of the shoal, proceeds of these bills, which were sold by the “Yoshow " run any risk which would drawers of the different bills to the defendants been incidental to the continuanoë had in fact reached the coffers of the Wang voyage to Hongkong, having specially Fang firm, in which firm the plaintif | that she had two lighters in tow. was a partner, His Lordship would see answer is in the afirmativa, that the grounds of the Bank's claim `extra risk did shò inour ?