1927-09-06 — Page 4

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THE HONG KONG DAILY PRESS, TUESDAY, SEPTEMBER 6th, 1927.

Mackintosh

MEN'S WEAR SPECIALISTS

ALEXANDRA BUILDING.

& Co. Ltd

DES VOEUX ROAD

THE ANTIMONY-SULPHIDE CASE.

LAW OF COMMERCIAL ARBITRATION.

JUDGMENT FOR HONG KONG EXPORTER.

NO BREACH OF CONTRACT:

The action brought by a London was (in reply to a remark by the firm, Messrs. John Batt&Co., Lt. The oxide in sulphide ore was

Judge) no such thing as "pure" against Messrs." Silva-Nettg & Co., exporters of Hong Kong, was con- cluded before the Puisie Judge (Mr. Philip Jacks) in the Sumanary Court yesterday.

the questions' it depended on the state of the London market and the condition of supply and demand. He referred the Judge to Russell an Arbitration" as to bringing in a third party to an Arbitration and quoted. Even when not in serted as a party in the order of reference, n. third parson's nasen: to the proceedings will in many enses preclude him from disputing. his obligation to abide by the Award."

The Judge: But the defendants are not parties: they only assented to the principle of Arbitration.

The Judge said he had atrived at just as good as sulphide: the ore

a decision in this case. After re- contained as much antimony as the citing the details of the transac

One could no more Bell other. antimony are free of oxide than on, His Lordship said that the one could sell steci plates free of goods were shipped in January, 1925, and in March, 1993, the rust. Atmospheric action must pr plaintiffs in formed the defendants Without lati-that the ore was rejected in conse film of rust. tude in these matters, it would be quence of a large percentage of Uxide, which was another word for ment by making an allowance impossible to der any business. oxide. They suggested a settle-

duce

@

rusi, did not deteriorate the ore.

that the contract did not stipulate It was pointed out at this stage

any maximum percentage of oxide.

Sr. Andrewes (to the witness): clerk to take You, seat your simples 1

The plaintiffs claimed $832 03 damages under an alleged breach of contract for the sale of 75 tons That the cre contained the right of Chinese antimong sulphide ore. percentage of antimony was not dis pued, but it was alleged that the percentage of oxide was undaly large. The defence, however, urged that the ore was cold solely on antimony, content. Arbitration took 'place in London between the plain-

Mr. Silva-Netto: I am sorry iffs and their sub-purchasers. but the defendants objected that their you paid so little attention to the dan contract was not arbitrated evidence. The witness on Friday uppa and that the contract with the was not my clerk but the analyst's

sampler, special sub-purchasers was of a character in that they purchased the are for a particular purpose, not disclosed to the suppliers on

this side.

24

a ton. The defendants were terms the ore had been re-sold and unaware the time upon what

they asked for further particulars as to why the cargo was rejected. They felt confident that the rejec tion was not justified, as the cargo had been certified by an analyst before it was shipped. The plain- tiffs were naturally desirous of set- tling with their purchaser on the best possible terms, as scot as pos sible, owing to the factuations of the market, and they suggested at-

Mr. Andrewes: Was the plaintiff represented when you took these

bitration. The defendants continu amples?,

Mr. Silva-Netto: No, but the ed to assert that they had commit- Samples we rely on were not taken ted no breach. Minny letters and by me but by the analyst's sampler.telegrams passed and they eventual- Mr. Andrewes: And how you are ly agreed to a settlement of the trying to force the plaintiffs to say best terms possible, if the claim was the shipment is correct.

justified. "Arbitration was suggest- ed by the defendants it agreement was not reached, but in accepting arbitration defendants must have had in, mind their own contract, or one exactly similar, so that a de-

not be held to have made themselves regard to the other. They could

liable on any contract except their own.

At the end of the last hearing. Mr. Silva-Netto was in the box and he said he was willing that the coa tract between the plaintiffs and the sub-purchasers, should be arbitrated apon. At the opening of the hears lag yesterday, he asked to be allow ed to explain that this statement was made on the assumption that the plaintiffs sold the ore to thei: buyers on a commission basis; in Silva-Netto objected that be had cision on one would hold good with

other words, under a contract iden- tical in every respect with his (the defendant's) contract and unde: terms and conditions as provided

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the plaintiffs and himself. It would

be preposterous to imagine (added Mr. Silva-Netto) that he would care to have any other contract arbi trated upon.

Mr. Andrewes (for the plaintiffs) cross-examined, the witness to show that he had expressed his willing; nees to have the question arbitrated apon whether the shipment was **good merchantable sulphide ore and that this was the question sub- mitted to the Arbitrator. Mr. An- dreves remarked to the Judge that assay in Hong Kong had nothing to do with the terms under which the goods were bought. They were not bought as they lay in Hong Kong but on their condition on arrival. Therefore the question of what the goods consisted of out here was quite irrelevant, and that was why he objected to the evidence given by the experts on Friday last He claimed that the question had already been settled in the way in- dicated by the defendant himself.

The Judge: The Arbitrator never awarded on the contract before now, but on a different contract of which, we do not know the terms, and all be says is that the ore is hot a good delivery against that Mr. Andrewas: We know from the submissions of the parties what he was asked to decide.

contruct.

under that contract.

Mr Andrewes: Which was what The Judge: Oh, no! He wanted to know if it was good merchant able sulphide, or not.

the defendant wanted decided.

Mr. Alabaster (for the defence): This is argument; arguing with witnesses never takes one very far.

Mr. Andrewes proceeded to an ather aspect of the case, when Mr.

and the Judge supported him in been taken through all that before,

the protest.

Mr. Andrewes said that, Mr. Silva-Netto's explanation at the

beginning of the day's proceedings cast a different aspect on the whole of the correspondence.

1

The Judze: But you would not expect him to abide by an arbitra- tion on somebody else's contract?

Mr. Andrewes: But if the point at issue was arbitrated on, he is satisfied: he has told you that. Now we come to the question whether it was arbitrated on, or

not..

In this connection Mr. Andrewes called the witness's attention to a letter he wrote to the plaintiffs in which he said, "We are referring the matter to the Chamber of Com- merce here in order that we may know what is good merchantable sulphide.

"Then you don't know what it is?" asked Mr. Andrewes.

Mr. Silva-Netto: I do, but it is an important matter, and in the commercial interests of the Colony I referred it to the Chamber.

took place in May, 1025, between the plaintiffs and their purchasers.

Arbitration said the Judge,

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CHINESE HOTEL PRO- PRIETOR FINED.

What the terrus and circumstances of that contract were we do not know. It is not before us. The Arbitrator merely held, on the facts before him, that the ore was a good delivery against that contract, and that the buyers were entitled to reject it, or accept it subject to a reasotiable allowance, which he as- sessed. Had the contract been on exactly the same terms and made on similar conditious, as the defend. THE "MEI CHOW" USED FOR bound by the decision, in view of ants, should expect them to be their acquiescenco in arbitration, but before I can held this I must be satisfied that there was no material difference between the con- tracts and the circumstances under which they were made. I can only draw

IMPROPER PURPOSES..

MAGISTRATE DISBELIEVES

DEFENCE..

-"

The case in which the licensee of

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The following is the programmc of entertainments arranged under the auspices of the Naval and Mili- Sub-Committee for this week :— tary YMCA's. Entertainments

"Cheer '0": Concert, 7:30 pm at the Better "Ole Whist drive, 7 p.m.

To-morrow:-At the "Cheer 'O": Whist drive, 7.15 p.m.; at the Better 'Ole": Sing song, 7 p.m.; Grand concert by "The Revellers," at Nanking Barracks, Shamehaipo: 8 pm.

from thelusions on this point the Mei Chow Hotel at Des Voeux the correspondence between Road Central, was charged with the parties."

To-day-At the In this connection the Judge allowing his premises to be used for As to whether the plaintiffs had quoted Messrs. Hallett & Son's immoral purposes was concluded at adequately represented the defend-letter to Messrs. Batt & Co., and the Central Magistrate yesterday ant's case in the Arbitration with their submission to the Arbitrator; before Mr. R. E. Lindsell. the sub-purchaser, Mr. Silva-Netto ip which they stressed the special took exception to their having said purpose for which they bought the At the previous hearing it was the ore was sold primarily on ore. The plaintiffs, said they sold stated in evidence that the room its antimony content, because in sulphide of the usual merchantable boys get about fifty per cent of his view it was sold only on that quality and "primarily " оп basis. He also remarked that if nietallic content. There was no re the earnings of women whom they Messrs. Batt & Co. sold an article pudiation of knowledge of the admit. The discovery was made worth £14 a ton for 20 ton they buyers' special purpose and the when a Chinese sent there by In- were only courting trouble.

plaintifs sold the consignment at spector Shaftain, of the S.C.A., was Mr. Andrewes next discussed the profit of very nearly 25 per cent.

two facts the special purpose and for the defence said that the de-kets, 50 cents including tes. Leave

Mr. L. D. Turner who appeared by Mrs. Jenner, 7 p.m. the high price-bad some weight fendant knew nothing, of what was Hong Kong at 9.15 p.m.;' leave with the Arbitrator. The Arbitra-going on. The room boys were Kowloon as 2.30 p.m.

ance.

Thursday: At the Cheer '0": Informal dance, 7 p.m.

Friday: At the Cheer '0": Concert, y p.m.; at the "Better 'Ole": Variety concert, arranged Saturday:-Launch picnic: Tic-

The Judge: We know, to a cer tain extent. The Arbitrator ruled certificate of Mr. Kitto, a London It was to be assumed that, these introduced to one of these girls. that it was not a good delivery Assayer, on which the Judge com mented that Mr. Kitto did not go the length of saying the shipment was not good merchantable sul tor ne dealing with the contract responsible and steps had been phide;" he said it had more Oxide before him, not the contract be taken to prevent a recurrence of Sunday

meeting at the than one would imagine by appear- tween the plaintiffs and the defend this practice. The particular boy" Better 'Ole, 8.p.m.

Cheer Djat the ants, and although Mr. Silva who had brought this trouble on the Mr. Andrewest No more oxide Netto assented to arbitration it hotel had been dismissed.

Special: On Saturday, Sept. than the buyer, could reasonably ought not to be presumed that he Mr. Lindsell remarked that the 10th, a grand concert at the Kow expect, in good merchantable sul intended to inake himself liable for management of the hotel must have loon Cricket Ground, commencing phide ' (To the witness): I ask anything which is not in his own known what was going on.

at 8.30 p. Free admission to you to show in what way your case.contract. In the absence of the was not fully and fairly put to the contract on which the award was out that the licensees of the hotel

Sub-Inspector Shaftain pointed Service men. Arbitrator.

made, and with the indications bewere sent for in April, and had fore him that the ore was sold for been warned for allowing prostitutes a special purpose and at a -on the premises. hanced price he could not hold that the award made on it was evidence of breach of contract by the de- fendants' in this action.

Mr. Siva-Netto asked permission to correct Mr. Andrewes in his remarks on Hong Kong analysiz.

The Judge: If the ore is shipped here on the certificate of analysts that it contains the percentage of metal specified in the contract, that is very much in favour of the defendants as showing they do their beat to supply the goods required. Apparently a depreciation of 121 per cent. or more would have to take place on the voyage before it would be below the standard recog. nined in London as good mer chantable sulphide."

Mr. Silva-Netto: That is a very dificult question for me to express an opinion upon. I would prefer to leave that to my learned counsel. Mr. Andrewes: But you contest this claim point out the part of the letters which inadequately re presents your caso.

Mr. Silva-Netto: I am sorry. cannot tell you.

I

Mr. Andrewes: Will your Lord- ship note that?

The Judge: I think it is for counsel to put that forward, The witness cannot go into the tech aicalities of it.

Mr. Andrewes: I say the expert evidence is inadmissible, otherwise you would have the position that the defendant as seller, having taken samples, says I know this are in good: you must take it' No buyer is going to accept that position, of buying something, and Re-examined by Mr. Alabaster, letting the seller decide if it is good the witness said that the profit of or not. Suppose I phone up the 25 per cent. being made by Messrs. grocer and ask him for some lamp Bett & Co. on re-sale was in itself sugar, and be sends me brown an indication of sale for a special sugar. I complain and he gets purpose.

13

nasty and says: "I don't care

were

The defendant was fined $250.

THE "PRESIDENT JEFFERSON."

WHO'S WHO AMONG THE PASSENGERS.

WATCH YOUR WATCH.

THEFT FROM SLEEPING BENEFACTOR.

"I am not satisfied" concluded

A Chinese who has a soft spat His Lordship, "that the contracts)

similar: in fact, there are in-

in his heart, took a penniless friend into his house and while he was dications that they were not. I am not satisfied that the Arbitrator

enjoying his siesta the ungrateful held that the goods were not good

scamp tried to steal a goid watch merchantable sulphide: he merely.

from his host. The defendant, when held that they were not a good de-

charged before Mr. W. Schofield at livery against that particular con- The ss. President Jefferson ar. the Kowloon Magistracy yesterday tract. Under these circumstances rived in port yesterday from morning with larceny of the watch, I give judgment for the defendants Manila, en route for Beattle, for pleaded guilty, and was sentenced with costs.

which port she sails to-morrow at to six weeks hard labour. His fr. Andrewes said that his 4.30 a.m.

Worship was informed that while clients might wish to appeal and ho Among the passengers arriving on fendant took his watch off his wrist. the complainant. was asleep, the de- would ask for a stay of execution the liner were as regards the costa, pending in. structions from London.

RUBBER AND MINING.

DIVIDENDS,

Lieut. L. P. Leone, U.S. Army The accused was seen by a watch- Addressing the Court on behalf

Officer en route to Shanghai,

man, and on becoming aware that it was lamp sugar when it left the of the defendants, Mr. Alabaster The Judge asked if the defence Mr. Cecilio Putong and Mr. he was detected he immediately shop." I am the buyer: I must referred to a leading case he had had any objection to a stay of three Venancio Trinidad, connected with handed back the watch to the com have a right to refuse delivery. already quoted and said that in this months.

the Philippine Government, en plainant, The Judge: You would have to particular case the thing was mer- Mr. Alabaster, said that if the route to Seattle. get someone to back up your chantable if suitable for ordinary plaintiffs appealed and succeeded Mr. G. C. Arnold, copra and opinion.

purposer, even though it was not they would get a refund, and coconut oil expert, en route to Mr. Andrewes: We have the suitable for a special purpose, un- therefore he objected. Further, in Seattle. Arbitrator.

less that special purpose was com- view of the importance of the case, Mr. and Mre Whitney Harb, The Judge: But did he give a municated to the vendor. To the he asked the Judge to certify it round the world tourista en route decision on that point 1

Arbitrator that special purpose was as a case fit for counsel,

to Hong Kong, stressed. The Arbitrator did not Mr. Andrewes mentioned a re. Mr. Philip Crovat, connected A discussion continuing between say it was not merchantable. Had tent case in which the Chief Justice with Whipple S Hall Paper Co., the Judge and Mr. Andrewes on it not been so he would have re- refused such an application, al- en route to Hong Kong. the qualities of antimony ore, Mr. xcted it. The fact that he ordered though that was also said to be an Miss Marguerite Hewson, Mission Silva-Netto interposed an expres the buyers to take it at an allow- important case. The Chief Justice School teacher, en route to the sion of regret that advantage wasance of Is, per unit showed that remarked on that occasion that in States on her vacation. not taken of the presence of experts it was good merchantable sulphide. the Summary Court counsel was a Lieut. Paul E. Barrows, U.S. at the last hearing to ask them fer Under the particular contract

luxury,” Ca

Army Officer, en route to Shang- explanations of these technical which stressed the special purpose,

The Judge: There are cases, even halam points. Although he had studied the Arbitrator said it must be in the Summary Court, where im- Mr. W. A. Scharffenberg, Mis- chemistry, he did not claim to be taken with an allowance.

portant principles are involved in sionary, en route to Shanghai..

Mr. Andrewes: "I say he did.

An expert, but he could say there Mr. Andrewes, in his address, which counsel might be meceMary. Mr. Roger D. Arnold and family, was a percentage of oxide running denied that the amount of profit I think this case is one in which y20. A. Minulónary for China, through ail ansimony ore. There made by the plaintiffs entered into I can certify.

en route to Hong Kong.

Messrs. Carroll Bros. have been. advised of the following dividends on Rubber and Mining sharen:

Kluang Rubber Co.: Final of B per cent, on pref. and ordy, shares

Kramat Palai: 6 per cent. less

Nellmay: 8 per cent, fina) (mak- ing 30 per cent.),also,è per incent.» interim. - Semanggol 10 per cent, interim. Bouthera Perak: $ Sep