Hong Kong Weekly Press
PUBLISHED. TO-DAY
CHINESE
TO-DAY'S ISSUE OF THE HONG KONG WEEKLY PRESS GIVES THE INTER- CHANGE OF TELEGRAMS, MESSAGES, ETC. BETWEEN THE LEADERS ENGAGED ON CONSTRUCTION OF THE COUNTRY DURING THE LAST SEVEN DAYS.
THE RE-
The Manchurian problem remains unsettled and the week has been barren of anything beyond the expression of irreproachable sentiments, The immense problems "confronting the country look after themselves while the so called leaders discuss questions of treaty revision and express pious hopes for unity and reconstruction.
Canton is mainly exercised by the dispute between the Merchants and the "CommitteeTM for the severance of Economic Relations with Japan." The former maintain
a blank refusal to the proposal for a 30 per cent. levy on the value of Japanese goods.
•
The question of the water shortage in Hong Kong is discussed in a leading article and a lengthy letter on this matter of vital import- ance to the Colony. The problem has also been raised at the Sanitary Board Meeting and at the Chinese Chamber of Commerce.
A munificent gift of 860,000 to Hong Kong University by Mr.. Tang Chi Ngoog is announced. The money is to endow D. School of Chinese Studies.
A Record is also given in the HONG KONG
WEEKLY PRESS of the sporting legal and social news of the Colony which will be specially appreciated by those at Home who wish to keep in touch with Hong Kong.
40
Pages-Price
30 Cents.
The Paper with the Familiar Yellow Cover,
[On Bale by all Begular New Boys.]
Annual Subscription: Hong Kong, $13; Post Free to any address, $15; Quarterly Subscription, $3.75.
Orders should be sent to the
HONG KONG DAILY PRESS, LTD.,
TELEPHONE: C. 12.
11, IOE HOUSE" STEKEL.
"Ewith Cocal ontby
AN ALUMINIUM SHAKER
GIVEN FREE
WITH EVERY TIN,
DELICIOUS
HOT of COLD DRIN
Get one ting for trial Obtainable at all stores
and Cafeshops,
Sole Agents- HUI and
* HUI CO.
(Alaxandra Building) Hoegkong.
THE HONG KONG DAILY PRESS, FRIDAY,
ANTIMONY ORE APPEAL DISMISSED.
FULL TEXT OF JUDGMENTS,
HONG KONG FIRM NOT LIABLE.
The Appeal made by a London firm in the casa arising out of the deterioration of a cargo of antimony ore while in transit- against the judgment of Mr. Justice P. Jacks, in favour of the defendants, Messrs. Silva Netto, of Hong Kong, has aroused a great deal of interest among local inerchants and exporters.
In two lengthy judgments, of which the full text appeara below their Lordships, Sir Heary Gallan, Chief Justice, and the Puisne Judge, Mr. Justice P. Jacks, dismissed the appeal and found for Messrs. Silva Netto.
U
It will be remembered that Messrs. John Batt & Co. (Londou) Ltd, sued Messrs. Silva Netto's in the Summary Court last year for $895.25 alleged to be balance of damages ascertained on the 19th May 1923, to have been suffered by Batts. Mr. Justice Jacks on that occasion found for the defendants with costs. The plain- tiffs appealed and the case came before the Chief Justice and the Paiane Judge or the 3rd July, 1929.
DIFFERENT CONTRACTS.
Their Lordship statements found in brief that while Silva Netto's had sold antimony to Batt's under an ** understood " contract. Batt's had resold under a "special" contract. It followed that damages awarded (in London) against Batt's could not be debited against Sitra Netto's since they were not parties to this "special" contract. Further, Silva Netto's had not assumed liability nor admitted that the contract. between them and Batt's was identical with that between Batts and Batt's buyer.
Mr. F. C. Jenkin (instructed by. Mr. L. B. Andrewes) "was for the plaintiffs-appellants: Mr. C. G. Alabaster, K:C. (instructed by Mr. Leo d'Almada e Castro) for the defendaats-respondents. CHIEF JUSTICE'S JUDG-
MENT.
In this case the plaintiffs in the action in the Court below, John Batt & Co. (London), Limited, are appealing against the judgment of Mr. Justice Jacks in favour of the defendants, lessrs. Silva Netto & Ca of Hong Kong
The parties had had transactions dealing with the purchase and sale of antimony ore prior to the date of the contract in question in these proceedings; and what had been called a pro forma order had been sent by plaintiffs to the defendants.
The contracts themselves were made by cable but the parties were able. by reference to this pro forma order, to ascertain the full and exact terms of any arrangement proposed by any cables which pass- ed between them.
The plaintiffs called no evidence at the hearing in the Court below. Their witnesses were all in London and with the, object of saving the expense of a commission it was agreed between their respective solicitors that the correspondence which had passed between the parties should be admitted by, and be available for, both sides; and It was on this admitted correspond- ence that the plaintiffs based their
case,
The particular contract which we have to deal with is contained in two cables, both dated 30th Decem ber, 1924, and is for the sale by defendants to the plaintiffs of 15 tons of good merchantable sulphide ore containing 55 per cent. of untimony but allowing a latitude, as regards the antimony, down to 50 per cent., at 214-3-0 per ton of
ore..
and to indemnify the plaintiffs against the consequences of any
such award.
JULY
27th, 1928.
On the whole I have come to the conclusion that the evidence avail- able points to a material difference in the contract between plaintiffs and defendants, and that on which the arbitrator made his award; and in any case I am of opinion that plaintiffs have not discharged the onus of proving to our satisfaction that there is evidence from which we can infer that the two contracts were in identical "terms.
At an earlier stage of this appeal. the counsel for the plaintifs applied for leave to adduce fresh evidence and for leave to issue a. eommission to Londoa to take evidence on be- half of the plaintiffs. This was refused as we thought that plain. tiffs had deliberately decided to go to trial upon the admitted corres pondence; and that in these circum- stances leave to amend their case by obtaining and calling other evi-) dence should not be granted at this late stage of the proceedings.
In my opinion the judgment of Mr. Justice Jacks in the Court be low was right, and this appeal should be dismissed.
THE PUISNE JUDGE.
I do not propose to state all the facts in this case, it will be sufficient if I refer only to the fact that the trial judge in the Court below was not satisfied that the contract arbitrated on, and the con- tract sued on, were similar.
Counsel for the appellants in this Court sought permission to adduce further evidence on this point, but without success, he then proceeded to make the very best of the mate- rial he had, and argued that the pondents" that the contracts were appellants having informed the res
ing admitted the fact by letter, the the same and the respondents hav onus of proof had been shifted to the respondents.
the point we have to consider is
I am inclined to agree to this contention raised on behalf of the plaintiffs subject to one condition- that the contract made between plaintifs and Hallett's, and sub-whether the respondents letter of mitted for the consideration of the arbitrator, was in indentically the same terms as that between plain tiffs and defendants, and that no new terms appeared in the former
contract.
The onus of proving this identity in terms is on the plaintiffs and could easily have been discharged by producing and proving the con- tract between themselves and Hallett's; but this has not been
done.
The plaintiffs, however, say that the admitted correspondence con- tains an admission by the defend- ants that the two contracta were in identical terms; and the admitted correspondence must be carefully looked at for this purpose.
Subsequently to the dispatch of the cable of 26th April from de- fendants set out above, the letter of 2nd April from plaintiffs to de- fendants reached Hong Kong, from defendants, that plaintiffa re-sold which, it is argued on behalf of
the latter required sulphide ore for to Hallett's with the knowledge that
with farge quantities of oxide ore in the special purpose of mixing it their possession; and that in con- sequence Hallett's had paid a re- latively high price to plaintiffs, viz, s. 44d. per unit of antimony which works out to a profit of 87/- per ton of ora made by plaintiffs on re-sale to Hallett's.
5th January, 1940, is an admis- sion. I paid little attention to this letter in the Court below as I did nut consider the statement in ques tion had an important bearing on the case. 1 have, however, devoted a considerable amount of thought and attention to it on this Appeal, but my opinion remains unchanged,
Was it really ar admission? I have been unable to find anything directly to the point in the author ities, but Halsbury says "The value of an admisssion depends on the circumstances in which it was made, these are always receivable to affect its weight. Thus a party against whom it is tendered may show that it was made in ignorance of the facts, or when his mind was in an abnormal condition.'
What were the circumstances ic which the alleged admission was made t
The respondents had been in gone against them. They were formed that an arbitration had
fulfilled their contract with the however confident that they had
the point for some months both in appellants, and had been arguing
telegrams and letters. As late as August, 1925, they did not know what the terms of the contract for sub-axle were, neither apparently did they realise how important those terms might be for them; for in their letter of 7th August, though they had already assented to arbit ration, they merely said "it would be interesting to know what were the terms of your sale contract with your buyer.
In their letter of 18th March, 1923, to plaintiffs, objecting to the ore, Hallett's had mentioned this special No question arises as to this con- tract having been duly made nor purpose as our only object in as to its terms; and the ore was and in their letter in reply plain- paying you the high price we did.";
On the 19th November, 1925, the duly shipping to London and receiv-
tiffa do not repudiate the appellants informed the respondents ed by the plaintiffs.
Meantime, the plaintiffs had sold materiality of this special purpose that the contract with their buyers this shipment of ore to a firm of or that it was within the contem was in exactly the same terms as 3icssrs. Hallett & Son, London. So plation of the parties when they the respondents' contract. In reply far as the evidence, gocs, the de- and Hallett's made their contract. to this information the respondents Again, the materiality of this continued their argument in the fendants had no knowledge, at the special purpose appears to be burne course of which they said in their time, of this re-sale; and the first out by the letter of 30th April, 1925, letter of January, 1956: Your con- they heard that there was anything from Hallett's to the arbitrator in tract with your buyer was on exact wrong with the ore was in a telegram which they enlarge in detail on this ly the same terms as with us, and from the plaintiffs of 25th March, reason for purchasing the ore from there was no stipulation as to the 1925, saying that the antimony ore plaintifs. had been rejected in consequence
percentage of sulphide or oxide. In It is obvious from the correspond that case it is logical that neither of large proportion of oxide," and ence that at the time they agreed your buyers nor yourselves have any that the matter could probably be to submit the dispute between plain- claim against us. The arbitration settled by an allowance of £4 per tifs and Hallett's to arbitration, the of 19th May, 1925, stated inter alia ton. The defendants were also defendsats had no knowledge of that the ore supplied did not con- asked to telegraph their decision. any special purpose, for which the stitute a good delivery against the It will be observed that this cable ore was to be used, as being within contract, but stated no reason for gave no information as to who had the contemplation of plaintiffs and his (aic) decision." rejected the order; and the defend- Hallett's, and that if this special The respondents were dissatisfied ants, in spite of a further cable purpose was considered by the with the award, and were putting from the plaintiffs of 1st April. arbitrator in making his award, the their case in the best way they asking for an immediate answer to contract the arbitrator dealt with could. In my opinion the words their cable of 25th March, did not was not in identical terms with the which are now claimed to be an send one at first. But several cables one made between plaintiffs and admission were merely used by them passed between plaintiffs and de- defendants. fendants between 25th March and. In their letter of 19th November, their minds were concentrated on for the purpose of their argument; 26th April, in which the former 1925, to defendants the plaintiffs proving that they were in the right, urged, the latter to settle, whilst state our contract with our buyer no matter what the arbitrator may the defendants asserted that their was on exactly the same terms as have thought. shipments were up to contract and with you, viz, without any stipula the correspondence and the other My opinion is good merchantable founded on the general trend of asked for further particulars; and sulphide ore eventually in a cable of 26th April tions as to the percentage of sul matter contained in the respondents! the defendants telegraphed as pbide or oxide"; and in their letter of January, 1920. follows to plaintiffs Before we letter in reply defendants say I do not think it would be fair decide should like to have further Your contract with your buyer to rule that the words used by the particulars; anxiously expecting was exactly the same terms as with respondents here were intended to letter from you; if you cannot us and there was no stipulation as be an admission on such an import agree, submit to arbitration."
to the percentage of sulphide or ant point, the importance of which On receipt of this telegram, plain- oxide."
I do not believe they had realised. tiffs appear to have wasted no time. It is argued on behalf of the plain-
Having regard to the circum- A. Mr. Davey was appointed arbit-tiffs that these two letters constitute stances under which the respondents' rator by consent between plaintiffs an admission by the defendants letter of 28th January, 1928, was and Hallett's about 30th April, 1925, that the contract arbitrated upon written and the general contents of and he gave his award adversely was in exactly the same terms as that letter, my view is that the to the plaintiffs on 10th May, 1925. that between plaintiffs and defend words which are claimed to be an It has been contended on behalf ants; but I do not think the inton admission were " quoted" solely for of the plaintiffs that this cable tion to be gathered from defend the purpose of the argument which shows that at this date the defendants' letter is that they agreed to was then uppermont in the respon ants realised that some dispute the statement made by plaintiffs in dents' uzinis. I am unable to come must have arisen between the their letter." The defendants quote to the conclusion that they contain formor and the persons to whom the plaintiffs' words, in my opinion, ed an admission in clear and unmis they had sold the ore and that de not with the object of agreeing to tukable teams fendants authorised the plaintiffs to their being a correct statement of I cannot agree with the learned submit the dispute to arbitration. the position, but merely for the counsel for the appellants that the It was further contended on behalf purpose of raising an argument that onus of proof has been shifted by of the plaintiffs that the defend if that were so, neither plaintiffs an admission.
We ants must be taken to have agreed nor defendants were liable, and that
In my opinion the decision given to be bound by any award made the award was consequently wrong, in the Court below should stand.
A Gripping story of modern youth and its temptations. A picture that has been termed “the love story of all loves."
ADOLPHE MENJOU
nate Satues
RICARDO CORTEZ CAROL DEMPSTER
·LYA de PUTTI—- A Paramount Picture
www
IN
SORROWS
OF SATAN
AT THE
QUEEN'S
TO-DAY & TO-MORROW.
At 2.80, 5.10, 7.15 & 9.20.
BUBBLING OVER WITH ACTION, THRILLS AND
ROMANCE!
AT THE
DOUGLAS FAIRBANKS
The MARK OF ZORNČ
The All Story Wountry"scary" The Curse of Caprated by winebebe Cardig Bacted by Punt {lin
TO-DAY & TO-MORROW
WORLD Orchestra
Interpreter
5.15 0.20. 2.30 & 7.15.
LOUD LAUGHS RUN RIOT IN THIS AMUSING
PICTURE OF A MODERN YOUNG MISS!
MADA, EVERYN DRENT, LAWRENCE GRAY — LOUKE BROOKS
OVE EM
'AND'
LEAVE EM
Caramount
AT THE
orant Picture
TO-DAY & TO-MORRÓW
START Continuous 2.80 to 11.15.
GR
The Food of Kings
Court Physicians know the best and see that Royal Babies have the best. That is why Glaxo has been used with success in 5 Royal Nurseries. Only the beat is good enough for your Baby, for is he not a King to you? Give him Glaxo, the food that contains everything that will build firm flesh, strong bone and a Bound constitution.
Glaxo
The Front Milk Food
"Builds Bonnie Babies
W. R. LOXLEY & CO., SOLIJAGENTA,