1939-11-24 — Page 17

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THE CHINA MAIL, NOVEMBER 24, 1939

LOCAL BANK CLAIM AGAINST GODOWN FIRMS FAILS

Plaintiffs is shortly this. The De-

THE HONG KONG and Kowloon Wharf and Godown Co., accordance with the contract between Ltd., and Holt's Wharf, who were sued by the Chartered the partles, and therefore cannot re- Bank of India, Australia and China for damages for al-ly on the conditions and exceptions leged wrongful conversion or, alternatively, for breach of contract, were adwarded judgment by the Chief Jus- tice, Sir Atholl MacGregor, this morning. The Hon. Mr. Leo d'Almada, ins- tructed by Mr. R. A. Wadeson, of Messrs Deacons, was for the plaintiffs, and defendants were represented by Mr. Eldon Potter, K. C. instructed by Mr. M. M. Watson, of Messrs. John- son, Stokes and Master.

The Chief Justice, delivering judg-

ment, said:-

the

and

apply

were

on his part, they were destroyed. The Court (Grove, Lindley and Stephen JJ.) held that the defendant by, his breach of contract had rendered him- self liable for the loss of the goods. Lepla v. Rogers (1293) 1 Q.B. p.31 was a case of the breach of a covenant in a lease, and the leasee was held. Ilable for the natural result of that breach. Morrison and Co., Ltd. V. Shaw, Savill and Albion Co., Ltd., (1016) 1 K.B. p.747 was a case of de- pleaded in the statements of defence.

viation in a voyage by sea. In the Mr. D'Almada's argument for the course of his judgment Hailhache J. said "The effect of deviation is to dis- fendants contracted with the Plaintiffs place the contract of carriage during to do a thing in a certain way; they and after deviation ab initio. From of the Defendant companies

have broken their contract by not the point of deviation, at any rate, the Plaintiffs were registered as the per-

doing the thing contracted for in the shipowner becomes at best a common sons to whose order the goods were way contracted for, and they cannot carrier. When a ship deviates held. Each of the Defendant com-

therefore rely on conditions intended loss of, or damage to, cargo occurs panies issued to Torbor and Company to protect them only if they carried either by act of God or, as here, by a book of printed forms of delivery

out the contract in the way contract- the King's enemies, it is not open to order. When it was desired to re-

ed for. The condition exempting the her owners to set-up either exception. move, any number of cases from Hong Kong and Kowloon Wharf and Those exceptions apply, and storage Torbor and Company typed Godown Company from liability for only to a carrier who is performing The Plaintiffs are bankers carrying delivery order the lot number, marks,

on one of these printed forms of loss caused by misfeasance is in any his contract, and never to a carrier on business in the Colony and both quantity and description of the goods tion is clearly stated to apply

case inapplicable here, for the condi- who is breaking it." That case went the Defendant companies are

only to the Court of Appeal (1918) 2 K.B. housemen with godowns in Kow- of the cases and the name of

ware- required, the distinguishing numbers to the loss of cargo whilst the goods p.783. n that Court Swinfan Mady

the are being stored or remain on stor-J. sald "If they, loon. The Plaintiffs from time

as carriers, to

ship from which the time advanced moneys

goods

age. were

duly performing their contract of car- The conditions must be business landed. to firms in England against

They then signed the de- trued contra proferentem. The word-riage they would not be liable for loss bills of

livery order and took it to the ing of the "Chinese" clause makes it

occasioned by the King's exchange drawn on and accepted by

enemies. Plaintiffs, They paid to the Plain-

clear that it is intended Messrs. Torbor and Company.

to

But they are breaking their contract." apply goods in respect of

GIBAUD CASE which

tiffs the purchase price of the goods only to cases of mistaken identity or Torbor and Company accepted these livery order and the Plaintiffs stamp-

mentioned on the face of the de- of delivery to a wrong person, and

In Gibaud v. Great Eastern Railway there is no justification for extending plaintiff claimed damages for the loss

Company (1921) 2 K.B. bills were shipped to Hong Kong and

p.426

the on arrival where stored in the godowns ment in the following terms:-

ed on the delivery order an endorse- the clause to cover such a case as the present. The exceptions further of one or other of the Defendant

are not sufficiently clearly worded to companies. The bill of lading

and

exclude liability for breach of the bill of exchange were endorsed

tract. So far as the Defendants' plea by consignors to the order of plain-

of estoppel is concerned Mr. D'Almada tiffs.

argues that the true position is that

was never any authority Torbor and Company to fill up de. livery orders to a greater extent than to cover cargoes for which they had paid the Plaintiffs. There is no evid- ence that Torbor and Company were held out by the Plaintiffs as having any greater authority than that. The forgeries were outside the scope the actual authority of Torbor and

parent Company and also outside their ap- authority. The defendants knew that the relations between the plaintiffs and Torbor and Company were those

of pledges and pledger, and there was therefore presumptive knowledge of the limitation of Tor- bor and Company's authority.

The Messrs.

The Defendant company stored the goods covered by the bill of lading in the name of Torbor and Company to the order of the Plain- The Defendant company then tiffs. Issued a godown warrant to Torbor and Company, On the face of the warrant appeared the name of Tor- bor and Company and immediately thereunder the words "held to the order of Chartered Bank of India Australia and China." Messrs. Tor- bor and Company handed the godown warrant to the Plaintiffs who held it until the bill of exchange was met in full. In the books of each

UNCLE'S FORTUNE

"Please deliver to Messrs. Tor- bor and Company or order upon payment of all charges due to you. For the Chartered Bank of India Australia and China." That endorsement

there was signed by an authorised officer of the Plain- tiffs. Messrs. Torbor and Company would then present the delivery or- der so endorsed to the Defendants, who in reliance on such endorsement would deliver the goods mentioned on the face of the order.

U CHAN JONG At all material times Torbor and Company was owned by U Jong, a natural born British subject Chan

of Chinese race. The

fraudulent practice adopted by U Chan Jong in respect of the goods the subject matter of these two claims was this: After a delivery order, which bore on the face of it particulars of such packages only as he had paid for to the Plaintiffs had been duly endorsed by the Plaintiffs, he altered the num- bers and/or particulars of packages or added further packages, and by delivering these forged delivery or- ders to the Defendants obtained delivery of more goods than in fact the Plaintiffs had authorised him to take delivery of. It is agreed be- tween the parties to these that the value of the goods fraudulently obtained by Torbor and Company is in the case of the Hong Kong and Kowloon Wharf and Godown Co., Ltd. $19,388.14 and in the case of the Ocean Steamship Co. Ltd. $96,860.44. look

U Chan Jong was criminally prosecuted in May for obtaining goods by means of forged delivery orders. guilty and is now serving

He pleaded term of imprisonment.

long

(Continued from Page 16) Going to turn us out homeless, I suppose?"

us?

"No, I'm going to let you have this cottage rent free, just so long as you behave yourselves. After my death it'll belong to Cecilia”.

"What!" protested James.

Эн

at

"It won't be long after you're mar- ried

before you're buried," cried Maggie with vicious Cecilia. "She'll see to that!"

Old Jarvis smiled grimly. "Wait a minute," he said, "I've thought of a plan that'll make Cecilia anxious to keep me alive and hearty, and fair break her heart when she has to bury me. So, if you think you can get hold of my money by making trouble between me and Cecilia you're wrong, because the fact is I shan't have a penny to leave."

"You-what?" gasped James.! Old Jarvis paused dramatically be- fore replying.

"I've put all my money into a Post Office annuity," he said.

"What an annuity?" cried James. "What's it all mean?" wailed Mag- gle.

"It means that I shall be fair roll- ing in money for the rest of my life," said Jarvis. "But, when I die, there won't be a penny left for anyone!"

"You old thief!" cried the outraged James.

"Well James, I thought it was the best way out," said Jarvis. "You see it means that Cecilia will be anxious to keep me alive as long as ever she can. Same with you and Maggie."

James looked unutterable things. So did Maggle. Little Cecilia looked thoughtful and impressed, But none had anything to sày.

"So now that we all understand one another, let's have a quiet cup of tea,' said the old man.

|

And the three of them vied în min-¦ istering to him, and being sweet to- wards each other. Old Jarvis beamed. "It's like the Millennium you read about in the Bible," he remarked in bland triumph. "And the lion shall

lie down with the lamb."

The End

a

actions

So

PLAINTIFFS' CASE

con-

con-

in

of a bicycle, deposited by him with the defendants. The bicycle was not put by the defendants' servants in

(Continued on Page 20)

the

of

Prevent Sore Throat

the

In support of his argument that the defendants here committed a breach of contract which disentitles them from relying on the conditions limiting Lin- bility, Mr. D'Almada has cited a num- ber of cases ranging in date from 1830 to 1937. The earliest case is Davis v.. Garrett, 6 Bingham p.716. The head note, so far as it is material, reads "Plaintiff put

on board defendant's barge lime to be conveyed from Medway to London. The master of the barge deviated unnecessarily from the usual course, and during the de- viation a tempest wetted the lime, and, the barge taking fire thereby, the whole was lost. Held that the de- fendant was liable." 1938

The next case in order of date is Lilley v. Double- day (7 Q.B.D. p.510) decided in 1881. There the defendant contracted warehouse certain goods for the plain- tiff at a particular place, but he war- housed

a part of them at another place where, without any negligence

SPECIAL

So far as the Hong Kong and Kowloon Wharf and Godown Com- pany is concerned it is conceded by the Plaintiffs that each of the 31 cases in respect of which they claim was of a value greater than $500 and further that in no case was such value declared at the time of applica- tion for storage. In the case of the Ocean Steamship Company 126 of the 132 packages claimed for were of an undeclared value in excess of $500. The value of the other packages is $2,877.64,

ACTION BEGUN

to

with Formamint

Formamint tablets kill the

germs in mouth and throat and, If taken at the first sign of a Sore Throat, It prevents dan- gerous infectious diseases, such as Influenza, Diphtheria, etc. Contrary to gargles, Formamint does not irritate the Inflamed tissues of mouth and throat.

Buy a bettia of Formamint to-day at your nearest chemist or store dealer.

FORMAMINT

The Germ-killing Throat Tablets

HOLLAND IMPORT

THE "TOASTING" SET

Sherry Decanter and 6 glasses of EDINBURGH CRYSTAL, Six

beautifully Hand-painted with Highland Motifs.

In these circumstances, Plaintiffs commenced proceedings claiming damages for conversion or alterna- tively for breach of contract. Each of the Defendants joined issue with the Plaintiffs, and each further pleaded that they were protected by certain conditions embodied in their godown warrants.

The Defendants also plead that the Plaintiffs are estopped from denying that the packages in respect of which the claims are made were duly de- that livered by reason of the fact

at Torbor and Company were

all material times authorised by the Plaintiffs to act as their agents for the purpose of obtaining delivery of the packages, or, alternatively, that the Plaintiffs represented to the De- fendants that Torbor and Company had such authority; that within the scope of such authority Torbor and Company produced to the Defendants forged delivery orders duly endorsed by the Plaintiffs, and so obtained de- livery of the goods claimed for.

By their reply the Plaintiffs plead that the Defendant Companies dealt with the goods otherwise than

in

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