1923-07-21 — Page 3

Page

THE DISPUTED FLOUR CONTRACTS.

YUUR..... JANG, CLA

THE HONGKONG "DAILY "TRK88, "SATUR"AY, JULY 24T, 1998.

THE ACTION AGAINST THE MEXICAN CONSUL,

JUDGMENT IN THE PASSPORT. CASE.

I will now briefly examine the history "If the agent was dealing fairly with his of thine Deals in flour."" About the ond, principal at this interview, why did he ́of August, 2020, Orton commenced ad-conceal the lenu to Mayer of $3,000 out

· JUDGMENT AGAINST MR. ORTON. vancing money, to une Mayer, who repref the Company's funds? In this con At the Summary. Court yesterday, sonted himself as connected with a Bourretion, it is interesting to refer to

His Honour the a Puisne Judge (Mrd afternoon His Lord-hip the Paisne Judge milling business in Buenos Aires, The Orion's letter of October 7th. The (Mr. B, H. J. Gomperts) delivered judgmoneys were taken from the Company's writer says that a certain lank is presas H. H. J. Gompertz) delivered judgment

pany's indebtedness 23,000, is needed tai ment in the case in which a Chinese firm funds. The total amount paid over from foyment in respect of the Comsesterday morning in the Summary Court Faued Moller & Co., of Hongkong for the time to time wan 35,000 About this time recovery of B071, Jninges due for breach Orton inforindi, Xavier, the Company's of contract over the sale and delivery" of Secretary, that he was in treaty for the sule, agency of a South American flour.

1,000 bags of flour.

Dirvelers

1

show good faith. He notes that Maller the ease in which Mr. A. Zuckermann, is unable to make any remittanes and dus Mexican Consul in Hongkong, was time before they would he closed down. I

ticipates that it is only a nutter of met by a Chinese merchant of Mexico. Forever, it Holler en send $2,000 that Wong Yu-sai, for the return of a might save them. But at the date of passport and other papers issued to him

When the case came up for hearing-thAt the end of August or in early this letter Orton had, without Molter's by the Mexican Government. defendant firm amitted the claim but September he contracted to buy flour sledge or consent, advanced 23,000 Mr. M. K. Lo represented the plain- claimed that they should be indemnified from Mayer, and by about the middle of to Mayer and this leaw was still out-

tiff and Mr. H. C. Macnamara conduct-) November his purchases of this kind for an already pointed out that

'standing.

no feil the ense' for the defence, by their ex-manager-(Mr. Thos Orion, now of Messrs. Stephens & Co., of 16, Queen's the Company amounted to 2.300 tons at a reply has ever been forthcoming, from |

His Lordship, in delivering judgment,! Con Orton to the charge in Moller's friter of Rod Central) in that he had entered into aggregate price of over $180,000. the contracts without the authority of the tracts for resale of this four to Chinese April 5th-that Orton had told him in said: The facts in this case are simple were made from time to time by Orton Shanghai that he had done no flour The defendant is the Consul in Hong- business. Again if it is true that at the kong for Mexico. The plaintiff is a in the Company's name: and the claim December interview in Shanghai Orton: of plaintiff in this netion is on one of ratione: the fear contracts and suggest Chinese subject. It is agreed that on ed eancelling them, but Moller elected the 4th June last the plaintiff handed to these contracts.

to keep them on, why is there no refer the defendant at his office a passport eco to this most important fact in the hatter of explanation and apology which issued by the Government of Mexico. A Consular visa is required on such pass- Orton writes on March 2ndf

I can come to no other conclusion than that Moller's account, of the Shanghai poris if the holder desires to proceed to interview is the correct one; I believe that Mexico. Subsequently, the plaintiff ande Orton denied at that meeting that he had application for the return of the pass port but it has been withheld. The made any flour, contracts.

and

In doiivering judgment His Lordship said: The plaintiffs are saing the 'de fondant Company for dainages for breach of a contract to deliver flour. The Com pany has brought in a third party, claiming to be indemnified by him under sec, 85 of the Code. Neither the Con pany nor the third party contest the plain tiffs' claim, and judgment has" according

On With October. 1924, Orton: writes from Hongkong to Maller in Shanghai af letter "of over five pages dealing with various details of the business. He states that he is negotiating with a persona friend, D. M. Mayer, of Mayer & Co., flour merchants, Buenos Aires," who are

ly been entered for the plaintiffs against opening up the Eastern markets for their the main issue in the ease, I accept the plaintiff's claim is for its return

In December Orton gors to" Shanghai

I

damages, or in the alternative för däme ages only.

Now, the defendant's evidence is

1.4

To come back after these findings to position that Orton made these contracts in the Company's name and that if they has been profitable the Company 'would' I find have had the benefit of them. that they were made without authority, follows:Passports are by Mexican law and that Orton was conscious that h

Governmit documents, the property of had no authority to make thes. In my opinion he believed that he had got the State. They are good for two years, good thing and that the Company would but can be recalled at any time if they he the gainer by his dealings. Bat it are irregular or are inapplicable to the

clear als that the main obiret was his

person holding them. Consils are ia- own profit-the interest of the Constructed by the Mexicar Government to dene on page 131 of my notes: was a seculary matter. Take his evi-

impound all passports irregular in either I made the purchases from Mayer of these respects and return them to the to show him that I had a connection

and could handle his four if he gave Ministry for Foreign · Affairs,

Mr.

me the agency business. in the same Zuckermanu' states "that, for reasons,,

ཏ་་་

REAL PERSIAN

*

RUGS.

AMONGST WE HAVE JUST RECEIVED A SMALL LUT WHICH ARE SOME VERY FINE EXAMPLES OF THE DAGHESTAN, BALUCHISTAN AND KURI- "STAN WEAVES,

THIS IS A UNIQUE OPPORTUNITY TO SECURE ONE OF THESE BEAUTIFUL RUGS AT PRICES CONSIDER. ABLY LESS THAN THEIR REAL COST,

RUGS

INSPECTION.

IS

OF THESE

INVITED.

SIZES RANGE FROM

5′ 10′′ x 37" To 16′ 10′′ x 11′ 0′′

PRICES:-

$28 TO $344

with the which he gives, he formed the opinion LANE, CRAWFORD, LTD.

ilea made him the $5,000 loan persuade him Agency business."

to

that this passport was irregular. · He

the Company. The question I have now

flour, Orton, has been offered the sole to decide is whether the third party is

agency, on very favourable terms, and be liable to indemnify the Company. "

propows to work the business with the Mahler & Co. (Hongkong), Ltd., wns Company on the basis of equal division incorporated in 1918, with n capital of of profits. The letter encloses a draft of $50,000 in 1,000 shares of 830 each. Mr. | his agreement with Mayer. Here I point Nils Moller of Shanghaj held 709 shares; out that Orton makes no mention in this Mr. Williamson 200; and other persons very lengthy letter either of the advances; from time to time held from one share to Mayer or of the four contracts, by each to qualify them to act as a director which this Company is already bound. In October, 1921, Moller, as permanent Moller replies wishing Ortan siccuss he Director, appointed Mr. Orton, the third will discuss the matter of the particip- party, who had been in his employ ination of the Company when be cones to Shanghai, to be a Director and General Hongkong. Manager of the Company in Hongkong. "Orton received one share to qualify him at Maller's request for a Büsings discus as a Director, and was given a power sion. There a conversation takes place He states chewhere, in his evidence that retained it therefor, and has forward- af attorney which empowered him, inter which is of the greatest importance. the loan to Mayer was an instalment of

proper department in alin to do all nets and things and to will give for the present Moter's version the 830,000 serurity demanded by the edit to the exrenze all such deeds and instruments as only Orton's story is quite different latter under the agency centres. In the Mexico, It seems to me quite clear light of these admissions the", true that the plaintiff car recover nothing. in his opinion may be necessary for carrying on and transacting the business will come to that later. Moller says that relationship and close inter-connection of

I take it that an alien, who is granted these transactions, becomes clear. The of the Company. It is not contested that he was not satisfied, and he then sent for our chals were stepping stones to the a passport by the Government of a as far as conerned perons denting with Xavier, the Secretary, and hookkeeper agency. The principal's moner and cratit Sovereign State, receives and holds that the Company Orton had very full powers in the Hongkong Office, and nan mult were pledged to further "the_ends of the

all Regulations he could do anything the Company of what Xavier told him, he himself camo agent. But an agent is cut a bowed to passport subject to could do. Now the Objects chose of this Company's Memorandum is exceed to Hongkong in February. He then dis- put his duty in conflict with his interest. governing such documents as that State covers, for the first time, that a flour It is, of course, true that Orton was ingly compendious as is the fashion with account had been opened in favour of willing to share the agency with the may chicose to enforce the issuing i modern companies. Take clause (I.):

Mayer. This Orton admits. He agrees Company when he got it. But he obtain State, for reasons which grem good to "To establish and carry on business that he had ever reported the advances at it for himself in the first instance, and itself, decides to cancel or withdraw the and to get as merchants, bankers, made to Mayer in his letters to Moller, he might have retained at ditogether had document and to determine the privileges. Lenders, commission agents, shipowners, and that he said nothing about him he desire. As it hapocid, the Company secured under it, I do not conceive that

in the el, maver came into the "agencĵ carriers, transport agents, insurance during his visit to Shanghai in Decembr. agents in all its branches, shipping His excuse is that on his return jetrnet at all.

any right of action accrues to the I arrive them at the conclusion that the agents, contractor, marine or geral to Hongkong, in late December or early importers, or in any capacity in Hong January, he took over this debit himself Company is right, and that Orton had po grantes. There is no breach of duty or kong, Shanghai, Japan, India and the Moller says that he also learnt for the authority to make the contracts, and of contract of which a Municipal Court, United Kingdom or elsewhere, and to first time in February of the existence of that the making of them was a breach of can take cognizaner. The remedy, if import, export, buy, sell either for enah the flour contracts. He taxei Orton with duty for which he is answerable to the any, is by representation-diplomatic or or on credit, barter, exchange, pledge, deceiving him and says that be latter Comparity in. I take it. austion of otherwise to the Government of the make advances put or otherwise deal admitted he was in fault and promised in goods," prodaer, articles and mer to take the whole responsibility for the act. But if I am wrong on this point issuing - State.

ef fact and if these, dealings are covered chandise."

It follows that no action will lie in contracts. He pressed Ortou for a written his implied authority, even then, in Obviously this is intended to cover undertaking to that effet.

Orton's repy k dated March 22nd. He been a breach of duty which makes the case a Consul, who purports to act in the circumstances of this case, there has our Courts against the agentia this almost

mercantile branch of every

says that the contracts were entered into. activity.

The Company's case, however, is fehmed before Molle duel were made in the leable to a claim of this kind.

before. Moller declined to take up the "gent Hable. It is posit that, strictly nccordance with the Regulations govern-}

third party procedure is in- Say fullerw-However wide and general the terms of his appointprent, Orton had firm's name and for the firm's benefit, the paint, which, after all, is true pro State. in fact, no authority as between himself will do, his best to get the outstandcedure, has never been raised, and the and the Company, to ninke these flouring contracts either transferred to Mayer ense has proceeded to its cometasol

But he does not accept the basis that the third party has been contracts. His making them is a breach

personal responsibility. This letter was properly brought ini mu

or cancelled.

But ing its passports made by the issuing

the Company

of duty, and an undertaking will be handed to Moller as he was leaving the I give judgment plied to indemnify the Company against Colony: be replies from Shanghai or against the third party for the full cinim any loss. Let us see what was the class April 5th. He recapitulates the history and costs. of business ordinarily done by the Com pagy. Molier xays that the business of of the agency proposal and charges Orton

Messrs. Moller and Ch. (Hongkong) Ltd.

the Company is shipping the operation with having distinctly told him in Shang- were represented by Mr. E. G. Corbett

hips: it had dealt in eval isat not in hai that no flour contracts had been whilst Mr. A. El Arculi appeared for Hour or in any other kind of merchan- entered into. To this letter Orton has the Mr. Thos. Orton. The plaintiff was dis. He explains that they needed coal ever ninde any reply. His expinuation represented by Mr. C. H. Lyon. for their ships on charter. Orton knew all about. Moller's business-he had been in the Shanghai office, and be was there fore given no special instructions when

་

is that he was waiting for Moller's return.

to Hongkong to talk the matter over.

I will return to the interview at Shang. hai in December. Orton says that he in- formed Moller of these contracts and in-

SPORT.

TENNIS.

-3,R,C, e. UNIVERSITY,

There is a note in Hall's International Law (0th edition-page 313) ze follows:- "For obvious reasons à Consul in not liable to the Courts for acts. douc by order of the Government from which he holds his commission." The proposition may be criticised as being too broadly stated-and niso per laps on the ground that it is not based on any decision of the Courts, Thero must he, however, obvious cases which Fall within-and illustraté it, and this, in my opinion, is one of them. That. no decision is reported or similar facts is no doubt because no such action has heretoforé been brought..

the

I have delivered written indgment at the particular request of the plain- tiff's solicitor whose very able argument

desire to acknowledge. But on facts his case is, I think, a hopeless one. His Lordship then delivered judgment.

The Puione Judge added, "after deliver- were put in cross-examination which reflected on the good faith of the defen dant. In his opinion it would have been better if they had not been put. There was no evidence whatever on which the suggestions were founded. The sugges tions were really in the air,

he took over the management in "Hong-timated that it might be better to cancel, kong.

as there were rumours about Mayer It was suggested for Orton that if there were any doubt he himself would The first of the series of the triangular transactions in four were done by the

prefer to cancel, He says that Moller's contest to decide the winners of the "B" Company when Williamson was manage reply was that it would be a pity to League was played off on Thursday at the William-on gave evidence, from which it catical as they were making such good C.R.C. ground between the I.R.C. and appears that the Company had never

profits.

University and resulted in win for the dealt in flour on its own account. It lind, The importance of this conversation is, former by 03 games to 34. Scares :-" on one occasion, acting for shippers. sold of course, that if Orton's story is acept- A. H. Rumjahn and S. A. Temail beat for the defendant with costs," org commission a consignment of Aused, and if Moller was infaitned of these B. An and Hung. 10-11 heat S. A. M. tralian flour which the local purchasers contracts, and, with full knowledge of Sepher and S. N. Chau, 101: brat. D. King jadgment, that certain questions bad failed to recept. Willinson saJA | that practically no mercantile business all the circumstances, chown to ratify and Samy and T. W. Wing

nccept them, then, in view of Moller's . L. Ruminbi and S. A. Hussain beat was ever dons. For transactions of a position in the Company, tad latter is B. J. An and Tung. 8-3; lost to 5. A. M. size instructions were obtained from. Shanghai, or the matter was arranged stopped from holding Orton responsible. Seaher and S. N Chau. 5-0; bent D. K. between the local directors. But, speak. If the Company has adopted these con- Ear and T. W. Wing. 8-3.

D. Rumjahn and O. Ismail, but B. J ing generally, coal and shipping were the trusts, clearly it must abide by the re-

And Hung, 0-5; lost to S. A. M. Sephir only business of the Company.

The two versions of this conversation and S. N. Chiu, 6: Bent D. K. Samy are quite inconsistent. Which of these and T. W. Wing Co.

on

Bult.

..

BASEBALL.

AMERICAN JAPANESE,

BRIGHT LIGHT FISHING SERIOUS PURT DANGER.

Maller states that, with his permission, Orton one occasion bought twg two witnessed is telling the truth"}," The second match will be played on cargoes of cool from Japan, but this was Now Orton adinits that about the and Tuesday, the 24th inst., on the C.R.O. for the use of their own vessels on time of November he had made up his mind ground between 1.B.C, and C.R.C. charter: Orton subsequently, sold a par- that Mayer was a shady character: He tion of this goat A little rice was once had definitely ascertained just before hej

Three Chinese, were prosecuted at the sent to Australia, but this was agency left for Shanghai that Mayer had told

Marine Magistracy yesterday for fishing Possibly 100 him at lie about a vessel he had represent business on commission.

in Capsula Pass with the aid of tons of ries were sent to Mauritius for od ne bringing wheat to the Colony. Yet friends on one of the Company's ships, he says in answer to a question from moA baseball game will be played at sunscreed incandescent lights.

Serat Johnson of the Water Police said but is was smal matter, and Moller says I did not tell Moller what I have just o'clock this afternoon between an Ameri- that they were directly in the track of ho does not remember it. Bat there was told the Court about Mayer, I may have em and a Japanese feam on the Hong the Canton and West River stealners no dealing in ally-other-merchandise to hinted that Mayer was shady. I don't kong Football Club's ground at Happy upproaching port and as soon as they his knowledge

know that I said this." The comment on Valley.

knew the police were coming ibry pat Now the evidence on this point is clear these answers is obvious. It would be

their lights out. As a malt he could only arrest throo

fenders

out of at least a cand definite, and, it is uncontradicted, impossible for an honest agent, noting INDIANS PORTUGUESE.

dozen and the general result is that I am not fairly and candilly with his principale at a s

Marine Magistrate (Commander Batisfied that Orion had any authority to to mention the contracts at all, without The following have been selected to re- den in Bour. He was, after all, a full disclosure to that principal of every present the Indian Recreation Club in Beckwith) fined each of the defendants. salaried agent-ho reported to Moller thing he knew as to the unsatisfactory the Baseball Leagis match against the $15, or, in default, a month's imprison- from time to time, and, submitted character of the contractor. And again Portugese team at the Happy Valley ment, saying bright light fishing is monthly accounts. If he desired to emit would be extraordinary if any reason morrow, the 22nd inst, commencing at becoming a serious danger to this part. bark on transactions outside the ordinary ale business man, Jurning what Orton ne sharp. Ismail, J. S. Curreem, A large area of water has been allocated business of the Company I think that know, should cleat not to cancel the con. A. Rumjan, N. B. Kitchell, R. M. for this particular class of fishing, yet, it was his duty to ask for instructions, tracts when he had the option to do so-Qusar, S. A. Imail, J. S. Ackber, S. A not content with this, fishermen are and it gems to in that flour was outside but to keep them on as Orton says Maller H. Spher and U. M. Omar. Reserves always attempting to fish in the putraces

S. II. email and A. K. Minu.

to the harbour did." ita ordinary business. -

3879

COTYS

Parisian Perfume

Essences.

Origan,

Emeraude,

Ambre-Antique, Jasmin & Lilas, etc.

LANE, CRAWFORD, LTD.

COMBIA

-NEW PROCESS DANCE RECORDS.

JAUNT HAGAR'S BLUES Fox TROT

WEI YO THUMB...

3883(SOUTH SEA ISLES

3874-

I'D LOVE TO HAVE YA (SWINGING DOWN...

THE LANE SOME LITTLE SOMEONE

AT

RAIL ROAD MAN..... 1872 BUGLE CALL HAG...

..Fox TROT

3870 THE WORLD IS WAITING

RUSES OF PICARDY ... 338HONEY MOON TIME

(RIVER SHANON MOON.

ANDERSON'S.

Powell

TELEPHONE C. 3148.

New Shipment.

KNITTED

NECKWEAR

in Pars, Filk and Artificial 8:1

mary SMART DESIGNS and Fitia Colourr.

Now Stock of

GENTLEMEN'S

WALTE

td.

STRAW HATS

Just Unpacked. Three areLight in Weight and Fitted with the Famous BONTON Fitting The Acab of Comfort

ร

L