A
142
SUPREME COURT.
Friday, 6th August,
IN SUMMARY JURISDICTION.
BEFORE HIS HONOUR MR. H. H. J. GOMPERTZ (PUISNE JUDGE).
NOT LEGAL TENDER.
In an action at the instance of Fung Chun Yuen against Tsang Lai for $166.72, Mr. Atkinson, of Messrs. Deacon, Looker and Deacon, who appeared for the plaintiff, stated that ten 10-dollar Chinese notes had been paid into Court as part payment. That was not legal tender. It only amounted to $92, which his client could not accept as the equivalent of $100. His Lordship-I suppose they are at a dis- count? Are they Kwantung notes ?
Mr. Atkinson-Yes. If your Lordship will make an order we will accept them for what they are worth, less discount, and ask for judgment with costs.
His Lordship-The claim does not appear to be admitted.
Mr. Atkinson-I think she admits the claim. She paid the rent previously in subsidiary coin.
His Lordship-It may be that the contract was for payment in subsidiary coin.
Mr. Atkinson-The witness will show it was not.
His Lordship-Better prove your case. The case having been proved, his Lordship gare judgment for the amount claimed, less the value of the $100 Chinese money paid in, with oosts.
Defendant-I am not willing to pay costs.
DROPPED OR NOT?
An interesting situation developed in the case set down for hearing in which O. E. Owen sued C. E. Shields for $60 for board and residence due on a contract. Mr. Hett, of Messrs. Brutton and Hett, appeared for Mr. Owen, and Mr. J. H. Gardiner appeared for the defendant.
I
His Lordship-Isn't the case settled? Mr. Hett-We are rather at a deadlock. sent this morning for my client, who had previously written me a letter, but I have not heard from him. The letter says: "Kindly drop the case between me and Shields until I see you later and explain. All the telegraph office boys (that does not mean office boys, but the Eastern Telegraph Extension men) who are staying at the Carlton Hotel have given me notice that unless I drop the case against Shields they will leave the hotel and stay somewhere else. On receiving that I concluded that the case was settled, but this morning when I heard that my friend insisted on coming into Court I sent for Mr. Owen, who was not in. His bookkeeper, however, said that he had settled the matter with Mr. Gardiner. Mr. Gardiner said there had been some conversation, but he did not understand it as a settlement. I am not in a position to go on and I shall ask for an adjournment.
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1
Mr. Gardiner said Mr. Owen came to him a few days ago and said he thought it was ad- visable owing to certain facts to withdraw the case. I said-Very well. Perhaps it would be wise. I told him he had better see his solicitors and if he wished the case withdrawn they could do it. I understood until this morning that the case was settled, but Mr. Hind (from the office of Messrs. Brutton and Hett) said he was going on. There was no mention then of withdrawal.
Mr. Hett-I understand that Mr. Gardiner proposes to go on this afternoon.
His Lordship-Mr. Gardiner said he would be here as the case was fixed for this afternoon, Mr. Hett-It was my intention to take the case myself, but it was not until Mr. Hind re- turned from Court this morning that I knew it
was fixed for this afternoon.
His Lordship-I did not know it was fixed for this afternoon.
Mr. Gardiner-I have a note to that effect. My friend has endorsed it as well.
Mr. Hett said that was so.
THE HONGKONG WEEKLY PRESS AND
His Lordship-I think I had better put it in next Friday's list. I think Mr. Gardiner should have his costs.
Mr. Hett asked that the question of costs be reserved.
His Lordship-I can settle that afterwards, There seems to be a general misunderstanding,
Mr. Gardiner-The plaintiff appears to have made up his mind to withdraw from the case from what he said to me and from the letter which he has written.
Mr. Hett-It may be he means it to be dropped. Then the mistake is mine and I must bear the expense.
His Lordship Yes.
The case was adjourned as stated.
Monday, 9th August
-
IN ORIGINAL JURISDICTION,
BEFORE THE Full CouRT.
HONGKONG MILLING COMPANY V. ARNHOLD, KARBERG Á co.
[August 16, 1909.
ยง that
ica was important. Witness had been engaged at the Ice Company's works about two years, and carried on the system of making ice he found in Vogue when he started. Since he had been manager the same clear- noss had been maintained. Witness knew the terms of the contract between the Hongkong Milling Co. and Messrs. Jardine, Matheson & Co. with regard to the latter purchasing the surplus ice of the former company. On June 23rd witness took a block of the Hongkong Ice Company's ice to the Milling Co. for comparison with the latter company's ice. The ice which the Milling Company showed him did not come up to the warranty, as it was not so hard as the Ice Company's commodity and there were many air holes in blocks. A core was composed mostly of unexpelled air, and was It was not porons; it was also quite opaque possible to look through the Milling Company's ice in the same way as could be done with the ice of the Hongkong Company. Another defect in the Milling Company's ice was that it melted quicker, and this he attributed to the core and the airholes. After exposure to the The action was resumed in which the Hong-air for a time the core melted and left a hole kong Milling Company, of which Mr. H. right through the ice. In witness's opinion Percy Smith is liquidator, claimed $100,000 the ice of the Milling Co. was not saleable at from Arnhold, Karberg and Co. for damages, the same price as that of the Hongkong Ice for alleged failure to supply an ice-making Co., as it was of an inferior quality. plant according to stated requirements. Sir In cross-examination witness said that if ice was put on Henry Berkeley, K.C., and Mr. M. W. Slade, the Milling Company's
at the same time instructed by Mr. John Hastings, appeared for the market plaintiffs, defendants being represented by Mr. of the Ice Co., sales might succeed. Previous MacNeil, from Shanghai, and Mr. G. to joining the Ice Co., in February, 1907, Alabaster, instructed by Mr. H. W. Looker, of witness had not been engaged in the manufac- Messrs. Deacon, Looker and Deacon.
ture of ice. He had not been engaged in any Mr. MacNeil said he was prepared to put in firm which made machinery for the manufac certain letters which their Lordships said should ture of ice, but he had been engaged in trial This was when he be produced, excepting one writteu after the runnings of ice machinery. date of the writ They had since then received was an apprentice in Edinburgh. When witness somo of which related to attended test runs he had seen ice made. Witness other letters, correspondence with Borsig. These letters knew of the fact of a contract being contemplat- and Jardine. he was prepared to produce at ouer, hated between the Milling Co. as translations had only just been re-Matheson and Co. before that contract was ceived he asked to be allowed time to read them. sigued. He knew this because Mr. Rennie There was another matter he wished to mention, had approached the Ice Company's engineer, in which both sides felt there ought to be a and subsequently Messrs. Jardine, Matheson certain and Co. consulted him and asked him whe- decision. That was in relation to correspondence held by the plaintiffs which ther the quantity of ice from the Milling passed with Mr. Rennie with regard to the ice Company would be sufficient. No mention was plant. That correspondence plaintiffs were made to him of the particular way in which the unwilling to produce on the ground that it ice to be supplied was going to be made. Then ho heard of the contract having been made Within the last few weeks the Ice Company had been putting a good deal more ice out, and Mr. MacNeil said it must be material to Mr.now they were using the old as well as the Rennie's knowledge as to the different ice new plant. The actual speed at which the opera- plants which could be obtained. On those tion of freezing was carried through was the same grounds they wished the decision of their as before. A small proportion of the ice now. Lordships on the point.
being sold showed air bubbles, but a greater Mr. Slade said they were perfectly willing proportion than before the old plant was work- to produce the letter if it was considered ma-ing. Just now the ice manufactured by the old terial, but it seemed to him to be absolutely plant in a good many cases had a white trian- immaterial, because Mr. Rennie, long before gular band on the top about three inches was this contract
That band was entered into, was ask-long and one inch deep. tenders from
the ing for
as same various ice manu. practically the
core the facturers other than the defendants. The ice of the Milling Co, but was quite avoid-
Was caused question at issue, it seemed to him, was whether able, and
by putting or not the defendants had fulfilled their contract. water in the ice boxes in order to get more ice. If they had, they were entitled to a verdict. If There were different ways of freezing plate ice they had not, the plaintiffs were entitled to a than that adopted by the Hongkong Ice Co., verdict, and whatever the claims and pretensions but witness had not seen any of those systems of other manufacturers with regard to their ice in operation. Before the contract was made plants might be, it seemed to him entirely witness several times saw Mr. Rennie with regard to it. He then knew of can ice, but regarded plate ice as better, and if Mr. Rennie was can had told him the Milling Co. ice
the matter The Puisne Judge said he did not at present ice he would have mentioned
Messrs. Jardine, see how the letters would be material, although to
Matheson and Cu. he was not prepared to differ.
Witness did not know that some people pre. Mr. Slade agreed to produce the correspon-ferred can ice to plate ice, although he knew dence.
was not material.
Mr. Slade said he had not said it was not material, but said it was inconvenient.
immaterial.
The Chief Justice thought that the letters should be put in.
Evidence was then called.
more
that the former was mostly used in America; that was because it was cheaper. He remem- bered Mr. Rennie asking permission to inspect the ice works. Witness referred him to the General Managers, who refused permission. In the month of May, 1908, witness inspected the ice works of the Milling Co., and reported the result of his visit to Mr. Ross. He visited the works on the day of a test run; he did not think that was unfair.
Mr. G. K. Harton said he was an engineer and manager of the Hongkong Ice Co., which manufactured ice entirely on the plate system, In ice so made there was no core, and the sizes of the pieces as they came from the machine were six feet long, six feet deep and nine inches wide. Each piece weighed 1,600 lb. The pieces of ice were clear throughout, and if a plate was
After the tiffin adjournment the cross- Mr. Hett-It was not necessary for my friend put up on edge with an object on the other side, to appear in the circumstances. I cannot
that object could be seen through it. There were examination of Mr. Haxton was proceeded with. consent to a withdrawal until I receive instruc-occasionally air holes found in one corner of the Witness was taken back to his conversation with tions. I do not object to paying my friend's Company's blocks of ice, but about fifty per Mr. Ross, and stated that at that time he had
From a
seen can ice on steamers which had been bought costs for to-day if your Lordship finds I am at cent. of the blocks were nearly free. fault.
commercial point of view the transparency of at coast ports. Witness had not seen can ico