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SUPPLEMENT
Hongkong Daily Press.
Registered as a Nawapaper at the - General 報
Post Office in the United Kingdom.
G.P.O. Box No. 1.
ESTABLISHED 1857 刺孖 15-19 Marina House, Queen's Road Central HONGKONG, FRIDAY, JULY 7, 1939.
SUPPLY OF WAR MATERIALS TO CHINESE ARMY
FULL TEXT OF WRITTEN JUDGMENTS OF CHIEF JUSTICE AND MR. JUSTICE J. A. FRASER
Appeal Against Decision "Of Puisne Judge Dismissed
Written judgments in the case in which an appeal against the decision of Mr. Justice R. E. Lindsell" in striking out part of a statement of defence in connec- tion with an action, arising out of contracts for the supply of war materials to the Chinese Army was dis- missed by the Full Court recently, were delivered at the Supreme Court on Wednesday:
The appellant was Henri Krebs, trading as Maurice, Augsborg and Company, Gloucester Building, and the respondents were the Headquarters of the Fourth Route Army Corps of Canton.
The appeal was heard by the Chief Justice, Sir Atholl MacGregor, and Mr. Justice J. A. Fraser.
Appellant" was represented by the Hon. Mr. Leo D'Almada e Castro, Jnr., and Mr. H, C. Macnamara, instructed by Mr. H. J. Armstrong, while Mr. Eldon Potter, K. C., in- structed by "Mr. Sidney Ng Quinn, appeared for respon- dents.
Delivering judgment, the Chief Justice said:
On August 30, 1937, and Septem- ber 22, 1937, the Plaintiffs-Respon denta and the defendant-appellant entered into two contracts," the earlier for the supply to the plain- tiffs of ten thousand gas masks et a price of $18 per mask complete cit. Hongkong, and the latter for the supply of eight thousand high explosive shells at a price of £42.000.
equal amount of the said debt due to the defendant viz; $190,000.
Particulars
By a contract in writing dated, Beptember 23, 1937, the defendant sold to the plaintifs 8,000 75 mm, shells at a price of £42,000...
The plaintiffs have failed to pay. to the defendant. the said sum of £42,000 or any part thereof;
"NO REASONABLE DEFENCE”
Inspection: The buyer will have -to frispect, the goodi immediately upon arrival in Hongkong. Should the goods not be exactly as per this contract, the Seller will refund to the buyer the total amount of this contract
This contract is made in dupit- cate, one copy for the buyer and one copy for the seller.
TRUE EFFECT-
Mr. Almada has argued in- geniously that this is not an The plaintins respondents,
ordinary c.i.f contract, despite thereupon, applied to have para the clear statements "CIF. Hong- graph 4 of the statement of de- kong" and "payment against ship- fence struck out on the grounds ping documents." that the sala paragraph discloses no reasonable defence and la frivolous and vexatious.."
agreed to sell to the plaintins 10,000 This application was made un- gas masks for the sum of $190,000 der section 176 of the Code of 4 The defendant by the said Civil Procedure, which is verbatim contract agreed with the plaintiffs the same as Rules of the Supreme that the said gas masks should be
in accordance with a sample sub-Court Order, 25 rule 4, but the in- mitted by the defendant to the herant Jurisdiction of the Court plaintifs.
was also invoked a most valuable.
5. In pursuance of the said con-adjunct to the Rules Inasmuch as tract, the plaintifs paid to the while under section 178 the ques defendant the sum of $25,000 on
September 3, 1937, and the sum oftion is practically concluded by $95,000 on September 20, 1937, What is contained in the pleadingă,
In his submisswn, the true effect of the contract is that the parties Intended that the property should pass as soon as the seller appropriated 8,000 shells to the contract at the factory and had then despat- ched to the port of shipment. The
payment. clause, ho argued, paly qualified the time for payment and did not affect the question of the passing of the property in the goods.
The property had passed to the
6. On or about November 15, when the inherent jurisdiction is buyer on appropriation of the 1937 and in pursuance of the said invoked all the facts can be gone goods, and the seller reserved a contract, certain gas maaks arrived into and affidavits as to the facts lien for the purchase price. The in Hongkong, but the same were
not in accordance with the said are admissible Remington v. Scoles facts therefore showed a proper sample and were rejected by the (1897) 2 Ch DL
case for a count, for goods bar-- plainties..
THE CONTRACT gained and sold, and the para-
7. In breach of the said con-
graph complained of disclosed a tract, the defendant has failed to
ww but proper claim by way of set-of. deliver to the plaintins gas masks The contract on which the al- in accordance with the said sample legations in paragraph 4 of the
C. L. F. CONTRACTTM whereby the plaintiffs have suffer- ed damage.
"The claims
PLAINTIFFS CLAIM
plaintiffs, therefore,
(1) The sum of $190,000 as money received by the defendant
wholly fafled..
(2) Damages.
The Defence filed on August 2
The gas masks were duly landed to the use of the plaintiffs and as in Hongkong but proved on in- paid for a consideration which has spection not to be up to sample. The plantiffe-respondents there. upon rejected the whole consign- ment, and duly issued a writ clatining from the defendant-ap-1938, put the plaintins to the proof pellant the sum of $190,000 which of their allegation that they were they had paid for the masks.
a department of the Republic of China, but admitted all the allega STATEMENT OF CLAIM
tions contained in paragraphs 37 The statement of claim is in the inclusive of the Statement of following berma:
Clam
4. The plaintiffs are a depart ment of the Republic of China of the City of Canton, in the province of "Kwongtung in the Republic of Chinac
2 The defendant, Henri Krebs, carries on business at second floor. Gloucester Building Victoria in the Öslony of Hongkong pad
3. By contract in writing dated August 30, 1937, and made in English and Chinese, the defendant
The fourth paragraph of the statement of defence reads thus
The plaintins before action were and still are, indebted to the defendant in the sum of $42,000 (the equivalent Exchange 14.4 of Hongkong $877.847.06) being the price of goods bargained and sold by the defendant to the plainti and the defendant claims to set-on against the plaintiffs'
statement of defence are based reads:-
With this plausible contention I am unable to concur. The contract. all essentials is an ordinary
contract.
When then does property pass
This contract is made in Canton this 22nd day of September 1937, el between Mr. Henri Krebs represent- ing Mesars, Maurice Augsburg & Co. on the one part and hereinafter under a cif, contract? The law is referred to as the seller and the thus stated in the Hailsham Edi- Headquarters of the Fourth Route Hon of Halsbury's Laws of Eng- Army at Canton on the other part land, Volume 23 paragraph 295, and hereinafter referred to as the buyer, whereby the seller agrees to When an agreement is made for sell and the buyer agrees to buy, the the sale of – specific goods in a undermentioned goods at the terms deliverable state on cir. terms. It and conditions as follows:
1s not an unconditional contract. 3.000 (Eight Thousand) pieces because the commercial meaning High explosive shells 75 mm double fure for Schneider Beld of cf. imports an undertaking by the seller to do something more. gun--from stock, AR
Price: £5 6.06. (Five pounds Ster- namely, to put the goods, on a ling and six shillings) per piece ship: and this postpones the pass. c.lf, Hongkong 7/24 going of the property until the goods
Delivery: Immediately from stock are shipped by the seller. at the factory in Europe,
Shipment: by the first, syniable. steamer, transit to take six weeks.
Payment by the first avaliable of the deposit 100 per cent (One Indred
per cent) of this, contract, namely
£42,400 Party-two thousand and parted in four, hundred pounds. Sterling) with proceedi
AN AUTHORITY:
rity for that statement
Biddell
the Banque de l'Indo China, ha the same volume at men or Hongkong for the payment her of these goods in Europe against and again in 1912
in the CouÝ
shipping
934
the