August 16, 1609,]
-word "quality" is a latent ambiguity. Then Mr. Rennie's knowledge comes into other parts of the case. It may relate to the quality in question or it may not.
Mr. MacNeil-I propose to leave what I have said to your Lordships for further consideration. The Puisne Judge-Do you say the word quality" is an ambiguity?
Es
may
Mr. MacNeil-The word " quality mean anything in our warranty besides clearness. Mr. Slade-I gather the latent ambiguity is alleged in the word clearness.
The Chief Justice-On that.we have had definite evidence. We discussed the question of clearness and transparency yesterday.
Mr. Slade The only way to interpret the words of the contract are, if it is proved that by reason of the customs of a particular trade the words which have a plain English meaning bear some other meaning, then there is a latent ambiguity. Plain English words are given a plain English meaning. ·
The Chief Justice-The custom of a trade is one thing, but there are others. I think it is an accurate statement of law that the fact whether a term in a contract is latently ambiguous is a question of fact for the Court.
Mr. Slade-It is a question of fact, to be both pleaded and proved."
The Chief Justice - If the Court comes upon a word it does not understand, the question of latent ambiguity arises.
Mr. Slade-If it has been pleaded and proved ambiguous.
The Chief Justice intimated that the Court would consider the point.
|
|
|
CHINA OVERLAND TRADE REPORT.
culars. That was only a detail showing how the estimated loss of profit was arrived at. If his friend turned to the previous page he would find that the estimated loss of profit was 835.000, not $52,000 as he had put it.
Mr. MacNeil said there was a further point to which he wished to direct special attention. There was a clause in the agreement between Mr. Rennie and Messrs. Jardine, Matheson and Co. to the effect that if the price of ice fell below what it then was, namely, 1 cent per pound, the Coupany was to allow the Milling Company a proportionate reduction in their five- eighths, but not below four-tenths. It had been distinctly proved by Mr. Haxton that the consequence of the Oriental Brewery competi- tion was to put ice down to half a cent a pound.
Mr. E. Arndt deposed to being lately in the employ of Messrs. Arnhold, Karberg and Company, which firm he first joined in 1898. He
first made the acquaintance of the late Mr. Reunie in 1905, when he sold him some Deisel engines. Witness was then managing the machinery department of Messrs. Arnhold. Karberg and Company. In the same year Mr. Rennie spoke to witness about machinery for the manufacture of ice, and he gave Mr. Rennie some memoranda referring to a plate ice plant which it was proposed to erect at Shanghai, as well as Borsig's and de la Vergue's catalogues. Mr. Reunie then asked for an estimate, and the firm got one from Borsig. In October, 1907, Mr. Rennie told him that he had an idea of installing an ice plant at Juuk Bay, and witness told him he would give him an estimate based on Borsig's. Mr. Ronnie consented, and later witness supplied him with an estimate. At that time Mr. Rennie said nothing about the kind of ice he wanted. He said he wanted 24 tous a day of clear ice. Nothing was said about the Hongkong Ice Company or Messrs. Jardine, Matheson and Co., and nothing was said about the disposal of the ice. Witness told Mr. Rennie that the estimate he was going to offer was for a can ice plant, and Mr. Rennie made no objec. tion. Subsequently, however, he made a coun- heter offer, and after a number of wires between Hongkong and Berlin his offer was accepted. What Mr. Rennie chiefly insisted on was time of delivery. After the acceptance of the order Mr. Renuie told witness that he had sold the ice he was going to make to Messrs. Jardiue, Matheson and Co. for a number of years.
Mr. MacNeil, continuing his address, reiterat ed his previous statement that he thought Messrs Jardine, Matheson and Co. wanted the ice if it was merchantable, and he thought they must have been influenced to reject it by the peculiar circumstances of the Milling Co. So far as he knew, up to the time of the actual rejection by Jardines, they were prepared to take ice on the cau system.
Mr. MacNeil was about to read some corres- pondence when
or
Mr. Slade raised the objection had taken on the previous day, that letters between Jardines the Ice and Milling Companies were not receivable in evidence.
The Court decided to hear the correspondence. but decided to leave Mr. Slade's objection as a proposition of law to be raised later.
|
|
The examination of Mr. Arndt was continued He told the after the tiffiu adjournment. Court he was present at the inspection of the ice plant on une 23rd. Those who accom- panied him on the launch were Sir Paul Chater, Mr. Ross, of Jardine. Matheson and Co., Mr. Gibson, Mr. Chard and Mr. Wilks. At the inspection Mr. Haxton, of the Ice Co., was also present.
Mr. MacNeil, continuing, said the claim for loss of profit extended to five years instead of ten years, the length of the centract with Messrs. Jardine, Matheson and Co. That at once gave rise to inquiry in the minds of the persons claimed against as to the reasons of this limitation. He sup- posed that any principle of law which justified a claim for five years would justify a claim for ten years. Another point was that the claim for damages was for five years, and the warranty was that the plant would do its work for one year. That also necessarily gave matter for thought and consideration, because a particular plant was sold to do a particular kind of thing, and the seller said if taken over in proper order it would do its work for a year, but beyond that time he would notice clear.
There was guarantee it.
•
Cross-examined by Mr. Slade, witness said he had not had experience of ice manufacturing machinery before he made enquiries on behalf of Mr. Rennie. He was not an engineer, and his information regarding such machinery was acquired from catalogues and from his experi- ence in Hongkong. The transparent ice apparatus was an apparatus for making can
no reason whatever I don't want to have any confusion. We to suppose that Borsig's machine, if taken understand each other that clear ice means over, would not have done its work satisfactorily transparent ice?-I don't know about that. for five, ten or twenty years, but, on the other Clear and transparent are interchangeable hand, there was no reason to suppose that it words-I don't know. would. However, if the machine worked for g year, that was all the guarantee the manu- facturer had given.
The Puisne Judge- Supposing the machine did its work for thirteen months, you say there could have been no claim ?
Mr. MacNeil did not think there could be. There must be a limit placed on the time for which a thing was warranted. He was at a loss to see how any claim could be raised in this action on the warranty for more than one year. for which time the plant was guaranted. Under the contract between the Milling Company aud Messrs. Jardine, Matheson and Co. the limit of supply was 6,500 tons of ice in the year. On coming to look at the claim it was found that the lowest profits were calculated upon a sup- ply of 7,200 tons, 1,000 tons in addition.
Mr. Slade-If that is so the figures can be corrected. Proceeding, Mr. Slade said the! comment was perfectly unjustified on the parti.
say
You said that yourself just now?—I it means clear as far as it can be made in a can ice plant.
It means transparent? Yes.
Those two words mean the same?-The word transparent in this case, in my opinion, means not opaque.
From the catalogue and Mr. Borsig's letters did you understand that he claimed with his apparatus to manufacture transparent ice- Yes, with the exception of a core.
If the machine turns out ice which, besides the core. has a great number of air needles which render it not transparent, do you think Borsig has carried out his contract?—— I don't know whether it was not transparent. You think it is perfectly legitimate for Borsig to supply ice with a large number of air needles in it-Yes.
Air needles don't make any difference to clearness? - No.
|
145
You've got no complaint against Borsig, and wo have none against you on the subject of air needles -No.
Was it in consequence of the advice of Mr. Ormiston that you asserted that your ico is BS clear BS the Hong- kong Company's ice?—I am not guided by Mr. Ormiston's advice.
Do you assert, apart from the core, that your ice is as clear as that of the Hongkong Company --Yes.
And that is just what Mr. Ormiston advised you to do, eh ?—Mr. Ormiston has nothing to do with my opinion.
The cross-examination of Mr. Arndt had not concluded when the Court adjourned.
Friday, August 13th.
IN SUMMARY JURISDICTION.
BEFORE HIS Hosour Mr. H. H. J. COMPERTZ (PUISNE JUDGE).
SETTLED.
The case was mentioned in which O. E. Owen, proprietor of the Grand Carlton Hotel, sued C. E. Shields to recover $60 said to be due for board and residence.
Mr. Hinds, from the office of Messrs. Brutton and Hett, who appeared for the plaintiff, said the case had been settled subject to the payment of an agreed amount of costs by the plaintiff to the defendant.
MISTRESS AND AMAH.
Action was brought by Lee Lim, maidservant, against Miss Nana Grey, of 33, Wyndham Street, claiming $13.80 for wages due.
Defendant, when asked by His Lordship if. she admitted the claim, said she did, but the plaintiff had left before her month was up with- out giving notice. She was willing to pay the amount claimed when the amah had finished her month.
Plaintiff said she entered defendant's employ on June 25th, and on July 17th defendant went to Manila, promising to pay her on the first of the following month. She returned to the Colony after an absence of ten days, and plaintiff applied on the first, second and third of August for payment, which was refused.
His Lordship-When the defendant went to Manila did you remain at the house? No, I went home. Defendant told me she would pay me on her return.
Defendant said she asked you to finish your month -I did not go elsewhero. I waited until she returned.
Are you willing to go back into her service? -No, she told me when she was leaving that she did not require me any longer.
Defendant stated that when she went to Manila on July 17th plaintiff asked for her wages. Witness declined to pay until the plaintiff had completed her month. The latter was told to remain on the premises and take care of defendant's clothes, but she did not do so. On the first of August plaintiff presented a bill for $13.80 for wages due. Defendant paid her amah a monthly wage of $18, and plaintiff's month ended on July 25th.
Plaintiff, recalled, said that after she had been in the employ of the defendant for a week she gave notice When defendant left for Manila, all her clothes were locked up, and she left the house coolie in charge.
His Lordship (to defendant)—I think there's a misundertanding. I should pay her her wages. Defendant-She has got to finish her month. I am not paying her by the day. When I left there were clothes which she should have washed and ironed, but she did not touch then. Plaintiff I did everything that I had to do. His Lordship (to defendant)-Are you willing to make her any payment at all?
Defendant - I always pay anybody working for me, but in this case I object on principle.
His Lordship told the plaintiff that she was in the wrong in leaving before her month had expired. She had no legal claim for anything. but her mistress, seeing that she had done a certain amount of work was willing out of kindness to pay her $10.
The money was paid over in Court.
It is stated that the International Banking Corporation will shortly open a branch at Hankow.
K