1939-07-07 — Page 10

PAGE 2--HONGKONG DAILY PRESS,

when the House of Loris reversed, stipulation to the contrary, be a the decision of the Court of Appeal tender of possession,

and restored the judgment of the trial judge. Kennedy LI. in his judgment, which was adopted with i warm approval by the House of! Lords, said: .

"Let us however, leave out of sight altogether for the present all question of usage or judicial re cognition of usage.

Cargo Al Sea

"How is such a tender to be made of goods afoat under a c.lf. contract? By tender of the BI of Lading, accompanied in case the goods have been lost in transit by the Poilcy of Insurance,

The application of the principles and rules of the Common Law, now

"The Bill of Lading in law and in embodied in the Sale of Goods Act, fact represents the goods, Posses- 1893, to the business transaction |sion of the Bill of Lading" placer embodied in the clf contract ap the goods at the disposal of the pears to, me to be decisive of the issue between the parties.

purchaser.

and that they were not informed the vessel's arrival, until outside the contract data for de- livery:---

Breach of Contract

FRIDAY, JULY 3, 1939,

of, tract had not passed to the buyer,.. date

and the count on which "the de- fendant appellant founds his set- off does not lie. The seller's remedy is by way of an action

Held, that in these circumstances for damages for breach of

con: the defendants had been guilty of tract and such a claim for an breach of contract. Held, further, unilguidated sum cannot be made

that the plaintiffs were entitled to

recover damages for the breach the subject of a set-off of the contract, but not the price

In my judgment, the learned

of the goods, since the price was trial judge was right in striking not payable on a day certain irres

pective of delivery within section 49, out paragraph 4 of the state- sub-section 2 of the Sale of Goods ment of defence as disclosing - no Act. 1893, and the property in the reasonable cause of action. goods had not passed.".

Later Case

The later case Colley vs. Over-

f.o.b. Contract

This appeal is dismissed with costs.

Let us see, step by step, how sc- A cargo at sea, "says Bowen L.J. cording to those principles and in Banders v. Maclean, 11 QB.D. seas Exporters (1921) 3 K.B, F302 MR. JUSTICE FRASER rules the transaction specified in P.327, 341, while the hands of was a case of an such a c.ii. contract as that be- the carrier, is necessarily incapable but for our present purposes the fore us is and, I think. must be of physical delivery. During this decision therein

Mr. Justice J. A. Fraser, carried out in order to fulfill its period of transit en voyage, the point. In that case unascertain-advantage of reading the judg

L entirely in judgment, said:—I have had the Bill of Lading by the law merchanted goods were sold 1.0.b. is universally recognised as its

ment which has just been de

terms.

LEGAL RESULTS

Actual Delivery

his

symbol, and the endorsement and The Seller sent them to the livered by the learned Chief delivery of the Bill of Lading port of shipmerit but owing to Justice, with which I agree. "At the port of shipment-in operates as a symbolical delivery the fallure of the Buyer to name this case San Francisco "the venof the cargo. .

Set-off is a creation of Statute an affective ship. he was pre-governed by section 3(3) of the dor ships the goods intended for

vented from putting them the purchaser under the contract.

on Law Amendment Ordinance, No. board.

2 of 1901, which "Under the Sale of Goods Act,

closely followe 1893, section 18, by such shipment

In these circumstances the the terms of section 39

ah... the Property in the goods passes by Seller sued on a specially endorsed Judicature the goods are appropriated by the such endorsement

Act, 1925, and by vendor to the fulfilment of the of the Bill of Lading,

delivery writ for the price of the goods. Order XIX rule 3, which Is whenever McCardie J. held that this

section. contract, and by virtue of section it is the intention of the parties fault of the Buyer did not have 4 of the Code of Civil Procedure.

de applied to Hongkong by 32 the delivery of the goods to the that the property should carrier-whether named by the just

Dass, the effect of placing the seller in I has not been contended that as under similar purchaser or not--for the purpose stances the property would

circum: the same position as if he had these provisions can be construed ot transmission to the purchaser by an actual delivery of the goods in the absence of an

pass put the goods on board, and that so as to put an unliquidated claim is prima facle to be deemed to be

agreement on the same footing as a Haul-

and

Count For Goods

form of a liquidated `claim.

Now in the letter

the

written.

a delivery of the goods to the pur- And for the purpose of passing that the price should be payable dated claim for the purposes of chaser. Two further legal results such property in the goods and on a day certain irrespective of set-off and in fact, the appellant arise out of the shipment:

[completing the title of the en-delivery he could not sue for the has framed his pleading in- The goods are at the risk of the Elll of Lading, until complete!

dorsee to full possession thereof, price. the purchaser, against which he delivery of the cargo has been has protected himself by the

made on shore to someone right- stipulation in his elt. contract

In the course of his judgment, that the vendor shall, at his own in force as a symbol, and carries count for goods bargained

fully claiming under it, remains the learned judge deals with the cost, provide him with a proper with it not only the full owner-soid on which paragraph 4 of the and policy of marine insurance intend-

ed to protect the buyer's interest, ship of the goods but also all statement of defence in this case and available for his use, if the rights created by the contract of is based. goods should be lost in transit; carriage between the shipper and

and the property in the goods hasį passed to the purchaser, either conditionally or unencitionalty."

BILL OF LADING

"It passes conditionally where the Bill of Lading for the goods, for the purpose of better. securing payment of the price, is made out

the shipowner.

"It is a key which in the hands of a rightful owner is intended to unlock the door of the warehouse. floating or fixed, in which the goods may chance to be."

Goods Never Shipped

In the present case it is admitt- in favour of the vendor or his ed that the goods were never agent or representative: see the shipped and that therefore the Judgments of Bramwell LJ. and essential shipping documents Cotton LJ, in Mirabita v. Imperial never came into existence. "What Ottoman Bank, 1878 3 Ex.D.164. then is the Seller's remedy

Two authorities cited to us by Mr. Potter. In the" courus of his argument are to my mină conclusive on this point. The headnote to the earlier case Stein Forbes & Co. · ́`va. County Tailoring Co. (1917) 86 LJKE. P.448 reads:----

الارتر

for

"In former days an action for the price of goods would only lie upon one or other of two counts. First, upon the indebitatus count goods sold and delivered, which was pleaded as follows: Money payable by the defendant to the plaintin for goods sold and deliver ed by

by the plaintiff to the defen- dant Bullen and

Leake

by Mr. Krebs on October

28, 1917, he says that he is compelled to inform the buyer that damages which will be ` asked against his failure to full his contract will amount to H.K. $325,000, and the amount which is sought to be set-off is 242,000 or the equi- valent of HK. -$677,647.06"

First Indication

There is

the first indication Prece that the appellant is asking for dents of Fleading 3rd Edition p.38, something which in law he may

This count would not le before be unable to maintain. delivery Boulter VA Arnolt (1833)

1 Cr. & M. p.333. The count was

Further, counsel for the appel

applicable where upon s sale of lant very frankly said at the goods the property had passed and outset that he was not in a post- the goods had been delivered to the tion to counterclaim, since the purchaser and the price was' pay-

able at the time of action brought. Fourth Route Army was part of Secondly, upon the indebitatus the Government of the Republic count for goods bargained and sold. of China, and that may be some which was pleaded as follows: indication of the reason which "Money payable by the defendant

to the plaintif for goods bargained induced the plaintin, to plead a and sold by the plaintin to the de debt, for which a set-off has -fendant" Bullen and Lexke p.39. since the Statute of George 7 "This count was applicable where been allowed, rather than upon a sale of goods the property damages which, it stems are not had passed to the purchaser and

"It passes unconditionally where against the Buyer?"; the Bill of Lading is made out in favour of the purchaser or his agent or representative, as con- signee. But the vendor, in the absence of special agreement, is not yet in a position to demand payment from the purchaser: hie delivery of the goods to the carrier is, according to the

· express · terms of section 32, only "prima facie deemed to be a delivery of the goods to the buyer:" and under section 28 of the Sale of Goods Act, "as under the Common 'Law (an' exposition of which will be found in the judgments of the members of the Exchequer Cham ber in the old case of Startup "v. Macdonald 6 Man, and G. 593, a tender of delivery entitling the vendor to payment of the prices up the document for the third ned that the property in the 'must, in the absence of contractual

"By a contract in writing, dated September 17, 1915, the plaintifis agreed to sell and the defendants to buy about 12.000 dressed sheep skins for prompt.⠀ shipment”: and about 33,000 ditto for shipment 28 quickly as possible

don or Liverpool Payment: Not cash against documents on arrival of the steamers

the goods were shipped by three pa """different" steamers, "The first two shipments were taken up and pald

they

the contract had been completed in even now allowed, imless all respects except delivery, and the are liquidated damages. delivery was not a part of the com sideration for the price or a condi- flon precedent to its payment. If the property had not passed the count would not le: Atkinson TA. Bell (1828) 8 B. & C. p277.. Is my view the law as to the circum stances, under which an action wil Bepte le for the price of goods has not that been changed by the Sale of Goods

I am unable to see that any other constructi

can be put upon the contract; 'made tween

for, but the defendants refused to In the present cass I am

shipscht on the ground that they

had never been bendered to them, the subject matter

the

Four

Mr.

1-am

Ippeal" should

and

Army

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