1913-07-11 — Page 5

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PILLS

CHAPOTEAUT'S

MORRHUOL

THE TALATI OPIUM CASE.

THE JUDGMENT OF THE APPEAL COURT.

3

Judgment was given yesterday in the appeal, which recently came before the Full Court of Appeal, and in which B. N. Talati, plaintiff, asked that the judgment of Mr. Justice Gompertz, delivered on the 15th March, in favour of the dofer- dant, M. P. Talati, be set aside, and that judgment he entered for the appellants with conta!

Mr. E. C. Jenkin (instructed by Mr. Hind of Messrs, Brutton & Hett) appeared for the appellant, and Mr. F. H. Bharp. K. C., and Mr. V-Slade K.C. (instructed by Mr. W. E. L. Shenton, of Messrs. Deacon. Looker, Deacon & Harston), were for the respondent.

The judgment of the learned PRESIDING JUDGE (Sir Havilland de Bausmiarez) was read by the Chief Justice (Sir Wm. Rees Davies, K.C.) as follows:-

Thare, is: I think, not much dificulty as the farts in this case or the position of the parties, the only points which are dificult to decide arise from a recital in

THE HONGKONG DAILY PRESS, FRIDAY, JULY 11ra, 1913.

WM. POWELL

BOOK MUSLINS

SPOTS

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TELEPHONE 346.

AND FIGURES.

MADRAS MUSLINS

WITH

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FIGURES.

BOOK

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FRILLINGS

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BY THE YARD:

MADRAS

MUSLINS

FRILLED, LACE EDGED, SCOLLOPED,

WHITE AND ECRU.

agreement of the 22nd July, 1911, letween the plaintiff, the defendant and Messrs. Kadoorie and Gourgey. The differ- ences between the parties have arisen from the prohibition of the importation of A Bombay Persian opium into China. firm of three Talatis, of which the defen- dant was one, carried on business under the firm name of P. F. Talati; Merwaaji Talati, the defendant, was a partner and agreement. In his letter of the 10th May, he maringed the firm's business in. Hong-1911. Apcar says to the plaintiff, "I have

at a future time." I do not agree, the intention of the Chinese Government is communicated in a notification by the

JUST

A

ARRIVED!

NEW

CONSIGNMENT

OF

VICTOR

RECORDS

BY THE

"EMPRESS OF RUSSIA.

EXCLUSIVE DISTRIBUTORS:

S. Moutrie & Co., Ltd.

MUTICES TO CONSIGNEES

"BARBER" LINE OF STEAMERS.

NOTICE TO.CONSIGNEES. The Steamship "SATSUMA."

[629

NOTICE TO CONSIGNEES.

8.9. "BIBERIA," FROM SAN FRANCISCO VIA JAPAN PORTS AND SHANGHAL

THE

E above-mentioned Vessel having arrived, Consignees of Cargo are hereby notified to send in their Bills-of-Lading for counter- signature and take immediate delivery of Cargo from alongside, Cargo impeding discharge will be landed immediately at Consignees' risk and FRIDAY, Cargo remaining undelivered Consignees risk and expense. 11th inst., at Noon, will be landed at

kang. They exported Persini opium had several interviews with him (tho Waiwnpu in which the words occur, "I that all Goods are being landed at their expense.

Кейзора аге

is now decided that from the 1st day of January of the coming year all such imported into China."

piam shall be prohibited from being outlined. Then there is the notification of the Commissioner of Customs in which he says that, "the importation of Persian

opium into China has

from Bongkong to China. The Chinese defendant) and have come to the conclu- | Giovernment took steps to stop the import sion to accept from Talati and Kadoorie of opium into Ching and decided to cash $12,000 in 1911, 45 permits for 1912, Truc the importation annually until it 40 permits for 1013, 25 permits for 1914, vanished at the end of 1916. In order to 20 permits for 1915 and 10 permits for do this in 1908 it issued permits to known 1916, a total of 240 permits." I may exporters in Hongkong, and permits were mention that Kaderie and Gourgey, who been prohibited by the Chinese Govern were interested in the 1911 permits, had į meat, such prohibition to take effect on and-after the 1st January, 1912." I think

issued to the defendant as P. F. Talati.

FROM NEW YORK, NONSIGNEES of Cargo are hereby informed riak into the Godowns of the Hongkong and at Kowloon, whenés and/or from the wharves Kowloon Wharf and Godown Company, Ltd., delivery, may be obtained."

renal Cargo will be forwarded unless notice to the contrary to given before.

No Claims will he admitted after the Goods baro lef, the Godowns, and all Goods remaining

to rent.

Cargo remaining undelivered TUESDAY, 15th inst., at Noon, will, in addition to landing charges, bo subject to storage charges.

No Fire Insurance whatever will be effected. All chafed and otherwise damaged Cargo will MONDAY, 14th inst, at 10 A.M.

delivered after the 14th inst, will or subject be examined at the shove Company's Godown

All Claims against the Steamer must be pre- 2nd August, or they will not be recognized.

All broken, chafed, and damaged Goods are to be left in the Godowan, where they will be examined on the 14th inst., at 11 a..

No Fire Insurance has been effected Bills of Lading will be countersigned by

DODWELL & Co., LTV1,

Agents.

No Claims will be entertained unless accom-

tions takenst the time of delivery to Consignees and signed for and on behalf of the Pacifie Mail S.B. Co.

All Chains must be filed on or before 8th August, otherwise they will not be recognized.

0. H. RITTER,

Acting Agoat. Hongkong, 8th July, 1913,

130

These permits were issued by the Imperial to be arranged with, and so they come this notification by Mr. Harris accurately sented to the Undersigned on or before the panied by short delivery note or list of excep. Maritime Customs, who would be qualified into the agreement of the 22nd July, but tú zlecide who were the old importers by they need not trouble as further. All |their receipt from them of the custoins efforts then

were concentrated on the Theodiment of these terms in an agree daties un upil prior to 1808. defendant who done the business in ment which would also show on the face the past was thn they recognized; of it the defendant's right to deal with and when the fi . F. Talati became the permits. The plaintif and Franji P. et continued to Talati came to Hongkong as did Ardeshir now Tainti, one of the partners in the extinct ried firm, and this agreement was settled with deal

the consent of all; it was finally signed was made at the trial of the relationship on the 2nd July, 1911. There is evidence of the defendant with the Customs, with the deinuet firm and with Framji or, as

thankrupt they

-bost

recognize the managed a business 1

m by Framji P. Talask

that the defendant's title was particularly considered. On the 17th July the Chinese

he has been called in this case. F. Government revoked the right to permits Tabul, but it is not, I think, necessary to

to import opium, and this news reached Follow the reasoning which led the learned the Castoms authorities about midnight Judge to the same conclusion which I hav

on the 1st July. They took no action on reacbed, because I have no doubt that, so

the

who

number of permits" it seems to me unnecessary to enquire into the intention of the Guston-as to its legal destination

clear that those interested with the

ita lonve

"He

Hongkong, 7th July, 1913.

1857

But this

states the position. The order to stop opium had been made, it was not merely an intention to make it, and the rights of opium importers to permits were gone as from the 1st January, 1912, though they might be revived by a cancellation or suspension of the order. Having stated somewhat fully the position of the parties and the circumstances, I may now come to consideration of the material parts of

a stop to the importation of opium into the agreement and their effect. The fifth

and did nothing. I should hesitate to China the said Merwanji Pallonji reital is as follows:-

***Wherons the right to a certain number come to the conclusion that the knowledge Talati, shall from the happening of such of the action of the Chinese Government event be thereafter Freed and discharged of permits for the importation of cases

was in fact material. It is a matter on of Persian opium into the Empire of which I should have been glad to knew from further, carrying out the terms of this agreement. A acp was put to such China has been granted by the Chinese the view of the Court below, as it must importation on the 1st January, 1012, the Government to the said Merwanji Pallonji have been materially affected by the plaintiff is, therefore, not entitled to Talti in the name of his said firm F. P.

demeanour of the witnesses.

damages. For these reasons I am of Talati which right has been duly axercised doubt is of minor importance as the opinion that the appeal fails and should hy is from that date up to the present plaintiff is still entitled to have the agrce-te dismissed with costs. time and is still in full force."

ment set aside on the ground that the

The Chief Justice added--My learned Clause deals with the abandonment of covenant that the defendant's rights are

But brother. has asked me to express his ful!

has force

failed. the action by the plaintiff against the in t following day, which was a Saturday defendant on the Bombay judgment. In the defendant says that even so the opinion that the appellant's case was done long as the Custors were satisfied thinthut on the 24th they notified the defendant Clauss 2 the defendant grants to the plaintiff bas elected to treat the agree-full justice to by Mr. Jenkin and that they were giving the permits to the old this. In the meantime, however, the plaintiff his right to export to China 140 ment as being in full force, not ones nor he is confident that every point was fully The CHIEF JUSTICE in an equally importers or their representatives, they news was leaking out, and Apcar, who cleed of opium from the 1st January, 1912, twice by overt acts on the 24th and 29th dealt with by him. did not hater themselves about was omvent at the signature of the agree and agrees to deliver signed applica July by abandoning his action and by

tlons for permits in each year, and in taking payment of $12,000, but by his lengthy judgment, concurred. He said the conduct throughout. It is clear on the that if the plaintiff, on being notified of firms internal vertinny, of the

meni on the 99ud, got a telephone message Clause agrees to pay 812,000 to

Clause & provides for the cases that this contention is well founded the decision of prohibiting the permits | hemofited by thism. When thegefore the while he was then saying that it was | plaintiff.

conclusive. agrement of the 22nd July recites that rumored that the Chinese Government course to be followed should the Chinese He received part of the consideration, from the 1st January following had

He said Government "put a stop to the importa and Carter 2. Beasgill is the defendant has the right to a certain

reaking the permits. was

tion of opium. The learned Judge who Nor can the ingenious contention of the claimed forthwith to have had the agree nothing about it, and allowed the parties saw the witnesses found that the defen- plaintiff prevail that he was ignorant of menit set aside en the ground of mutual without communicating this dant acted in good faith throughout, and the time at which the 'revocation took mistake as the agreement had been entered representations which are embodied in knowledge was perfected three or four which did not exist, be thought his claim in grauting such right, so long as it is important miere of news. In considering he says with regard to the defendant's place, and so could not elect before his into in contemplation of a state of things Apear's conduct throughout, it must the recital which I have read "eren if days before the trial, first, because he would have been well founded. The case,

been use secondly,

what may have agreement and to regard the alleged defendant were content to acquiesce in ubered that he stood to gain a large they had not been literally borne out by pleaded months ere this the revocation of however, did not stop there. Did not the sum for his services if this matter went the facts (as I find they are) were at any the rights was prior to the signature, and, facts show that he elected to stand by the his disposition of the permits. And, as, within, if it did not, that the rate perfectly true in the constantco influenced bim was the possible cessation Chinese ultimatum as revocable! He (the

they were accepted by Apoar." will presently appear, this was the case. In December, 1908, the plaintiff recovered antiff had put himself into Apear's comments strongly and rightly on the of the power to import opium and not Chif Justice) thought they did. It was. plaintiff wished to controvert the defen- ing point is that the plaintiff claims on after the agreement was signed (which judgment for a sum of over three lakhs hands and was being completely guided absence of Apear from the box. If the the date of the order. The only remain-stated in Mr. Shenton's evident was of rupes in Bombay: against the defenheim, and we must conclude at all dant's statements as to his position he was the authority of Bentsen Taylor, Sunstraus presumably on the same day), Relying on the impression made breach of the condition precedent. In Chinese Government had stopped Persian

ecndition dant's firus of P. F. Talati, and on this vents that Apear's own interests were hond to call the man who represented & Co. (1808 2 Q.B. 274) damages for the Apear was told by telephone that "

all on the side of the agreement even if on the learned Judge by the defendant, that case the question was whether a term opium into China from next year," and the plaintiff stated in evidence that warranty, the right to Apear put the whole matter through," - sued the defendant in Hongkong, the writ being served on the 18th April, 1911.uly the $12,000 were paid. After the after consideration of the facts as put in a charter party was

the same conclusion as he did, and were damages was not in issue, and Bowen and that Apcar had told him, after sign- On the Monday The plaintiff's interests were in the hands signature of the agreement it appears to before us, I come without hesitation to precedent or of one Apear, an opium merchant have been acted on by everyone, on the it not for the words. "and is in full LJ. held that the defendants intimated Ling the agreement, of the prohibition. Hongkong, who, I have no doubt, was 124th the action against the defendant was force" at the end of the recital the case that although they would not insist on The shat followed? engnizant of the whole of the circum, withdrawn, and on the 20th July the would end there. But in fact the right treating the contract as broken by reason following the action on the Bombay judg He was to get as much as hesum of $12,000 was paid to Apear. For was signed, and the plaintiff says that they did not intend to rely upon that as ment was withdrawn. No complaint was Government in cancelling only as a breach of warranty." I do in the mind of both parties when the he got find that the plaintiff in this ease agreement was executed, and in fact no erald out of the defendant and retain which he accounted to the plaintiff. From if he had known of the action of the a failure of a condition precedent, but made by plaintiff or Apear of the mistake

opium right to import 5 per cent of the nett proceeds as his that time up to the 30th* December the Chinese

would have refused to sign. Imus did anything of the sort. 1 have already steps were apparently taken or contem- fe, the remaining tã per cent, to go to agreement was treated by all parties as

subsisting. On the 30th December the admit that I am not sure that he would dealt fully with the facts and need not plated until this action was brought. have done so, but the fact remains that recapitulate them, but the result of them Furthermore, the sum of $12,000-payable. the plaintiff, the evil effects of such a

writ was issued without any warning there is a covenant on the part of the is that the plaintiff and Apcar, in whose under the agreement was received by the doubtful arrangement become apparent

By this time it had become evident that defendant as to his title to the subject handy the plaintiff bad left his affairs plaintiff's agent Apear on the 29th July, when it is realized that the result was to the sword would fall on the 1st of matter of the contract, and the right and whose motives are quite intelligible, sun days after they had notice of the which he covenanted to be in full force elected to say that they were content to pending prohibition, and the plaintiff's at Apear's interests into conflict with these of his principal. On the 24th April Jannary, that the permits were as good was so no longer. On this part of the ignore any action of the Chinese Govern-share was remitted to him by Apear in Aptar writes to the plaintiff that the writ as dead, and the agreement with the case he bases his claim to be relieved from ment and to pin their faith on the results the latter's letter of 31st July. Then ment to make them alter their plans, and the plaintiff in Japan and the defendant the failure of the condition precedent in had been issued and that Mr. M. J. defendant was worth nothing beyond the the contract on mutual mistake and on of diplomatic pressure on that Govern there followed the correspondence between This is $12,000 which they had already got the recital. The two do not stand in the that they would go on with the contract here in which reference throughout is Talati has funds to meet us,"

force were not there; or, to put it in wholly inconsistent with his letter of the During all this time the defendant, Apear same position; the recital in the written as though the words "and are in full rande to the action of the Chinese Govern 10th May, in which he says of the defen- and others were moving heaven and earth contract is conclusive, the onus of prov

It is not made to get that action revoked, but there been a mutual mistake in that neither omission of this condition. dant, he has no money and we all know to get the order of the Chinese Governing that there was a mutual mistake is another way, they substituted a new conuent as to the future permits and from that." I can only suggest as a reasonment revoked, the plaintiff had left Hong. on the plaintiff. There appears to have tract identical with the old save for the which it appears that all efforts were being that the words were only put in at the part in the transaction. These facts Government when the agreement was that he was not sure of his 35 per cent. kung and was in communication with the party knew of the action of the Chinese immaterial to this conclusion to remember was no recantation by the plaintiff of his on the 24th April. It is not necessary to defendant and presumably with Apear, signed; but the plaintiff unist further last moment, when the draft agreement clearly, he thought, ousted the right of prove that the mistake was a fundamental was settled by Counsel, the particular the plaintiff to rescind the contract which disenss this correspondence at length, but and he knew what was going on. it seems clear that the only hope of getting not necessary to enumerate all the steps error (Kerr on Fraud and Mistake, 3rd points which were considered by him by his actions ho had elected to stand by. swears he would not have signed had he and his past and presont partners and in Carter u. Scargill, 10 QB, 581, Campbell anything

substantial out of the defendant taken, for I have no hesitation in coming ed., p.441). It is true that the plaintiff being those arising between the defendant Abundant authority was cited for this to the conclusion that the intention of the known, and that on the face of it this not the title to the permits derived from Fleming, 1 A. and E.. 40. Dixon v. was based on the strength of those permits..

I think this agreement was made in construing the agreement, but we are hie_right to repudiate the contract, was "ONGKONG HANSARD REPORTS It was necessary that the defendant should parties was to keep the agreement alive decision of the Chinese Government was the Chinese Government. It is no doubt Heriot, 2 and F., 769. The conduct of

of MEETINGS the still get these permits from the Chinese in the hope of such diplomatic pressure a very material matter, but inasmuch as not competent to as to consider this in the appellant in this case, whilst waiving of the

being brought to bear on the Chinese order to secure, to the plaintiff the only entitled to du so when considering the wholly consistent throughout with his LEGISLATIVE COUNCIL

the Government, that he should not be forced Government that they would, revoke, [ considerablo asset the defendent. had, acts of the parties and what they meant regarding the contract as being in full was ready to go on relying on the with were concerned and as if the decree pro- Session 1912.

into bankruptcy, as he was the person modify or defer their prohibition of the nately, the right in expectation to cer- by them. The result is that the plaintiff force so far as its prospective provisions The PUISNE JEDGE (Mr. J. H. Kemp), RAVISED BY THE MEMLAR.

recognized by the Chinese Customs, and July. In the judgment of Gompertz tain permits which were to come to tich

That being so, subsequent in concurring, said he had no doubt that PRICE

that it should be made clear that he was, J., a considerable part of the case after the let January, 1912, and inasmuch drawal of the order or on the possible hibiting future permits had never existed. as between those of the Talati family who was left untouched, because he concluded as it appears that Apcar, whose influence resumption of the issue of permits at a

that the notification of the Chinese on the plaintiff was certainly great, new later date. had an interest in the permits, the person

event of the Chinese Government putting before the signing of the agreement, announcement of an intention to revoke ing that something had occurred prove agreement which provides that in the knew that the prohibition took place

at least the inaccuracy of the recite who had the right which is recited in the Government was "nothing more than the before the parties separated after sign-events are regulated by clause of the from a very early date the plaintiff

Superior to Emulsions or Cod Liver oil.

Each tiny Morhual capsule re-

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Hongkong, 25th June, 1913.

for

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[175

HONEY'S

A

It is

him.

was not in full force when the agreement of the non-fululment of the promise

the