1939-07-05 — Page 6

THE CHINA MAIL, JULY 6, 1989.

FOURTH ROUTE ARMY

ALHAMBRA CASE APPEAL

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SPENCER TRACY

TO-NIGHT'S DINNER

1. Giblet Soup

2. Fried Sole

3. Ox-tongue a la Poulette

Chicken & Ham Pattie

4.

5. Cold Bologna Sausage

Bakewell Pudding

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Price 90 cts.

ST. FRANCIS HOTEL

QUEEN'S ROAD, CENTRAL.

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DISMISSED BY C.J.

WRITTEN JUDGMENT WAS DELIVERED BY THE CHIEF JUS- TICE, SIR ATHOLL MACGREGOR AND MR. JUSTICE FRASER IN THE FULL COURT OF APPEAL THIS MORN- ING IN THE CASE IN WHICH HENRI KREES, REPRE- SENTING MESSRS. MAURICE AUGSBURG AND CO. AP- PEAL AGAINST THE DECISION OF MR. JUSTICE R. E. LINDSELL IN STRIKING OUT PART OF HIS STATEMENT OF DEFENCE SEEKING TO SET OFF AN AMOUNT AGAINST A CLAIM BY THE FOURTH ROUTE ARMY,

Us

Messrs Leo d'Almada and H. C. the property should pass as soon Macnamara instructed by Mr. H. J. the seller appropriated 8,000 shells to Armstrong were for the appellants the contract at the factory and had and Mr. Eldon Potter instructed by then despatched to the port of ship- Mr. S. Ng Quinn was for Fourth ment. The payment clause, he argued, Route Army.

In delivering judgment the Chief Justice said in part-

only 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 buyer on appropriation of the goods, and the seller reserved a lien for the purchase price. The facts therefore showed 、4. proper case for a count, for goods bar- gained and sold, and the paragraph complained of disclosed a proper claim by way of set-off.

With this plausible contention I am unable to concur. The contract in all essentials is an ordinary c.i.f. tract. When then does property pass under a c.1.1. contract! The law is

con-

On August 80, 1937 and September 22, 1937 the Plaintiffs-Respondents and the Defendant-Appollant entered into two contracts, the earlier for the supply to the Plaintiffs of 10,000 gas masks at a price of $19 per mask complete c.i.f. Hong Kong, and the latter for the supply of 8,000 high explosive shells at a price of £42,000. The gas masks were duly landed in Hong Kong but proved on inspection not to be up to sample. The Plain tiffs-Respondents thereupon rejected the whole consignment, and duly is thus stated in the Hailsham Edition of Bued a writ claiming from the De-Halsbury's Laws of England, Volume

"When an agree-- fendant-Appellant the sum of $190,000

29 paragraph 295. ment is made for the sale of specific which they had paid for the masks.

The Defence filed on August 2, 1938 goods in a deliverable state on c.i.f. put the Plaintiffs to the proof of their terms it is not an unconditional con- allegation (contained in the statement tract, because the commercial meaning

of c.i.f. imports of claim) that they were a department the seller to do something more, name- an undertaking ̈ by of the Republic of China.

The fourth paragraph of the State-ly, to put the goods on a ship; and this postpones the passing of the pro- ment of Defence reads thus:-

perty until the goods are shipped by The Plaintiffs before action were the seller." and still are, indebted to the Defen- In the present case it is admitted dant in the sum of £42,000 (the equiva-that the goods were never shipped and lent at Exchange 1/2.7/8 of Hong Kong that therefore the essential shipping. $677,647.06) being the price of goods documents ever came into existence. bargained and sold by the Defendant What then is the Seller's remedy

against the Buyer?

said

to the Plaintiffs, and the Defendant claims to set-off against the Plaintiffs' claim an equal amount of the debt due to the Defendant viz, $190,000.

The Plaintiffs-Respondents there- upon applied to have this paragrah of the Statement of Defence struck out on the grounds that the said para graph discloses no reasonable defence and is frivolous and- vexatious.

THE CONTRACT

The contract on which the allega- tions in the paragraph of the State- ment of Defence are based reads:

not

APPEAL DISMISSED In the present case I am satisfied that the property in the goods the sub- ject matter of the contract had passed to the buyer, and the count on which the defendant appellant founds his set-off does not lie. The seller's remedy is by way of an action for damages for breach of contract and such a claim for an unliquidated sum cannot be made the subject of a set- off.

This appeal is dismissed with costs.

In my judgment the learned trial judge was right in striking- out para- This contract is made in Canton this graph 4 of the Statement of Defence 22nd day of September 1987, between as disclosing no reasonable cause of. Mr. Henri Krebs. representing Messrs.action. Maurice Augsburg and Co. on the one part and hereinafter referred to as the Seller and the Headquarters of the. Fourth Route Army at Canton on the other part and heroinafter referred to the Buyer, Whereby the Seller agrees to sell and the Buyer agrees to buy the undermentioned goods at the terms and conditions as follows:

88

8,000 (Eight Thousand) pieces high explosive shells-75mm. double fuse for Schneider field guns from stock. Price: £5.6.0d (Five pounds Sterling and six shillings) per plece C.I.F. Hong Kong,

Delivery: Immediately from stock at the factory in Europe.

Shipment: by the first available steamer, transit to take six weeks.Y

Payment: The buyer will have to de- posit 100% (One hundred per cent) of this contract, namely £42,400 (Forty- two thousand and four hundred pounds Sterling) with the Banque de l'Indo Chine, Shameen or Hong Kong for the payment of these goods in Europe against shipping documents.

FAILED TO REPORT ARRIVAL

Limsico Manuel Lapez, residing at No. 12 Arbuthnot Road,⠀⠀⠀ was summoned before Mr. R. A. D. Forrest at the Central Magistracy this morning for failing to report his arrival in the Colony

Sub-Inspector H. E. Langley, who prosecuted, said that defendant ar- rived in Hong Kong on June 19, and made no attempt to register till

26. June

A fine of $5 was imposed.

Mr. Gordon Ellicott Torrey, of No. 26 Blue Pool Road, was fined

Inspection: The Buyer will have to 810 for failing to not Inspect the goods immediately upon

Arrival in Hong Kong Should the of address.

goods not be exactly as per this con-

con

tract, the Seller will refund to the Buyer the total amount of this tract.

This contract is made in duplicate, one copy for the Buyer and one copy

OR

for the

CON

his ch

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