1927-09-05 — Page 10

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SEPTEMBER 5

5, 1927.

SHIPMENT OF ORE.

CLAIM AGAINST A HONGKONG-

MERCHANT.

and Hallett and Messrs. Silva. Netto and Measrs. Batt, were in the same terms.

Mr. Alabaster disputed this, re- ferring again: to the case of Pontifex v. Ford, quoted at the last hearing, to show that arbitration should be held on the contract ac-

The Judge said he had found an-

OPEN AIR CONCERT

ENJOYABLE FUNCTION A

KOWLOON CC.

Four hundred people gather amid delightful surroundings Saturday night and thorough the Kowloon Cricket Clubs.

The action brought by a London firm, Messrs. John Batt & Co., Ltd.tually in dispute. against Messra. Silva-Netto & Co., exportors of Hongkong, was con- tinued before the Puisne Judge other ense which seemed to catab-enjoyed an open air concart (Mr. Philip Jacks) in the Sum-ish a precedent to the contrary, ranged by the Entertainment Co mary Court. The plaintiffs claim- Mr. Andrewes urged that if "A" mittee of the Club for the purpo ed $852 as damages under an al- and "B" arbitrated by direction of of: providing comforts for t leged breach of contract for the "C" "C" must stand by the re- troops. Although the weather sale of 75 tons of 'Chinese au-† sult."

one time was threatening, fortu timony sulphide ore. Mr. L. R. Mr. Alabaster: But they did ately the rain kept away and wi Andrewes, of Messrs. Johnson, not submit to arbitration the ques a cool breeze blowing, plenty Stokes & Muster, appeared for thetion whether we had made a good seating accommodations and th plaintiffs and Mr. C. G. Alabaster, delivery under our contract. We grounds decorated with twinklin K.C. (instructed by Messrs. Lea are absolutely at their mercy out red and green lights, the Club d'Almuda & nephew), represented here: we did not now what they colours, the audience was able the defendants.

did in London, but we do know that they did not submit our con- tract to arbitration.

The facts of the case were that the ore was shipped on certificate by a Hongkong analyst that it con- tained between 50/65 per cent. of antimony. The shipment was re- sold by Messra. Batt & Co., to a third party, Messrs. Hallett & Sone, who claimed an allowance on the ground that the ore con- tained an unduly large percentage of oxide, that it was antimony oxy- sulphide ore, instead of antimony sulphide ore, as ordered. That it contained the correct percentage of antimony was not disputed.

not

enjoy in comfort, an exceptional fine programme of music by th full Band of the 1st Battalic Mr. Androwes: We were

Cameroniah Regiment and som asked to

entertaining items by a pari from H.M.S. Vindictivă. Mr. Alabaster; The plaintiffs

Mr. Horace E. Dowell, L.R.A.M have not submitted a copy of their conducted the Band. Rosini contract with Messrs. Hallett. It over popular William Tell opend is up to them, if they send 10,000 the programme, the storm beir miles to prove their case, to send realistically reproduced on th also proof that there was not a instruments. The Miserere aces difference between the two con- from Il Trovatore gave Corpl. I tracts. The documents that they Bain and Bds. G. Phillips an of submitted go to show that the con-portunity for a delightful clas tract was different, and that the ine and cornet duet which me

The Contracts.

applause. Another fine oper selection, Mascagni's Cavalleri Rusticana, followed, before th

In the course of cables and let-purchase by Messrs. Hallett was with sustained and enthusiasti ters exchanged, Messrs. Silva-Netto for a special purpose. & Co., suggested referring the matter to arbitration. This was done but the arbitration took place It was very necessary to the in-Band showed that it is equally a between Messrs. Batt & Co. and terests of Hongkong merchants Home with the lighter numbers. their sub-purchasers, Messrs. Hal- (continued Mr. Alabaster) that A Hunting Scene was falthfully lett & Sons, the arbitrator award- they should be allowed to prove portrayed, and the popular Maid o ing the amount which Messrs. Batt that they sold what they contract- the Mountains brought furthe & Co., now sought to recover fromed to sell. They had no control appreciation,

Some charmin | Messra, Silva-Netta & Co.

Brahm over what happened in London; in Hungarian dances by Plaintiffs' solicitor submitted this case the Hongkong contract greatly appealed to the audience that, having suggested arbitration, was not submitted to arbitration and a pot pourri of melodiou: Mesars. Silva-Netto were in honour and the Hongkong view was not melodies was very effectively bound to accept the verdict if it represented. Messra. Batt repre- rendered, before the Band brough went against Messrs. Batt & Co. sented their own position and a three hours enjoyable enter and reimburse them.

made no attempt to meet Messrs. tainment to a fitting close with Hallett & Sons' submission that the grand fantasia "Battle of

Waterloo." they wanted the ore for a special

The concert party made a great purpose. Mr. Alabaster went on

A Case to Answer.

to quote from the correspondence hit. Composed mostly of hum showing that Messrs. Batt knew of orous numbers their songs'' and this special purpose.

The Judge But, supposing they did, they only sold them "Chinese Antimony Sulphide Ore." It is necessary that it should be of mer- chantable quality.

At the last bearing Mr. Alabas ter submitted that the defence had no case to answer because the arbitration did not take place on defendants' contract but upon a different contract, between Messrs. Butt & Co., and Messrs. Hallett & Sons. This contract (although not produced in Court) appeared to be entirely different because'

Mr. Alabaster: And we want Messrs. Hallett & Sons bought the to prove that it was merchantable ore for a special purpose which in that it contained a certain pro- was not communicated to the supportion of the metal. pliers. They wanted it to "grade

The Judge: Was the whole

patter went down well, Wilmott's received. Encores were frequent numbers being particularly well and were willingly acceded to,

In a few oxidised sulphide ore." centuries it might be all oxide.*** Analyst, said he would describe Mr. E. R. Dovey, Government

the ore produced as a sulphide ore.i He would say that, by appearance, it was a good merchantable sul- He had never heard.

up some oxide ore of which they happened to have a great deal cargo tested here!

. Mr. Alabaster: We had a fair phide ore. on hand and they alleged that the particular shipment of antimony sample taken. There was no sug- of the ore being sold except on its sulphide ore which formed the sub-gestion that the whole was examin-metallic content. As the process ject of this dispute contained too ed in London either: they only of oxidisation went on, the sul- much oxide to be suitable for their took samples there also.

phide disappeared. It was a res purpose. The defence, on the

After further argument the placement: the two did not exist. other hand, argued that thu ore Judge said he would let the de- together. was only sold on the usual basis fence go on with their evidence Mr. Andrewes did not cross of its antimony content, and that and then he would have to consi-examine the expert witnesses. it fulfilled requirements in this der the point of the separate con respect.

tract.

Mr. Andrewes: Will your Lord-

A Profit of £224..

Mr. A. F. B. Silva-Netto said he

At the opening of Friday's hear. ing the Judge intimated that he had come to the conclusion that ence being given as to the quality and took some samples himself. the defence had a case to answer. of this ore and my reason for ob- Some of the ore had a.specially

ship note that I object to any evid-saw the shipments during packing

Mr. Alabaster opened the casejecting is that the quality has al- bigh metallic content. He had no

MRS. J. CRAWFORD, for the defence by referring to the ready been decided upon in a man knowledge of any special purpose

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The Judge noted the objection and evidence for the defence was then called.

for which this antimony ore might be required in London. The or- dinary purpose was of extracting gave figures to show that the plain- the metallic content. The witness

tiffs resold the ore at a profit of £224 on the 75 tons..

case of Jones . Paget (24 Q.B.D. ner selected by the defendants p. 650), as a leading case on the themselves? expression "merchantable qual- ity." He said that the effect of the decision was that if the goods supplied were merchantable for ordinary purposes it was quite

- Expert Evidence. sufficient, even if they were not

Mr. Andrewes said he wished to Mr. Chu Po-yan, Laboratory Asask the witness a few questions suitable for the purpose of a par-sistant to Mr. A. C. Franklin, without affecting his objection to ticular buyer, unless that particu Analyst, spoke to having taken the admission of evidence as to Jur purpose was communicated to

was never

+

to a decision as to the best method of solving the difficulty which bad · arisen as a result of the claim by Messrs. Hallett.

the supplier. In the present case samples before shipment of the ore the condition of the ore. He pro- the special purpose

in dispute. The witness describ-ceeded to cross-examine the wit- mentioned to the supplier. It was ed the methods by which the tak-ness to show that Messrs. Batt undisputed, that the ore supplieding of a representative ten per made a genuine effort to acquaint The the defendants with all the details, was of the metallic percentage cent, sample was secured. called for; it was merchantable in shipment was antimony sulphide in order to assist them in coming the ordinary sense,

and that ore, similar to samples produced

in Court, Messrs. Hallett & Sons wanted it

Mr. A. C. Franklin, F.I.C., metal for a particular purpose, for which apparently it was not suit-lurgist and analyst, said he re- able, did not affect the issue. The ceived from the last witness sam- defendants fortunately bad retain-ples for analysis and he analysed ed samples of the shipment and them for metallic content. had also had samplea analysed be fore dispatch, so that expert evid- ence was available. to prove that the ore was antimony sulphide of a certain percentage:

An Objection.

Mr. Alabaster was about to call evidence when Mr. Andrewea in timated that he would object to

The witness disagreed, pointing out that in the telegrams Messrs. They Baltasked for an allowance of £4 per ton, whereas the allowance awarded of 1s. per unit worked out at £2.108. per ton.

came up to the required percent age. The ore was sulphide and was ab not oxide. Oxide oro solutely different in appearance, colour, lustre and in every way.

The Judge: How much oxide might be present (without being noticed superficially) in could be described as "good mer chantable sulphide?".

Mr. Andrews: You felt so con- eat you had aent good mer- chantable. sulphide that you were prepared to pay damages if in-fact it was not sulphide ?--Yes. what

Mr. Andrewes: Apparently, from the correspondence, you. wanted the plaintiffs to hold on such evidence being heard.. Mr. The Witness: I should not like to the ore on a falling market: Alabaster was setting out to prove to state any definite figure. It is The witness replied that he something which had been already a question which very seldom, if could not come to a decision until proved and decided. The defen- ever, arises. I have not known of the receipt of full particulars by. dants selected the course of get a ahipment before in which it was

post.

ting a specialist at home, an ar- asked that the, sulphur content: Mr. Andrewes: I think the cor- bitrator, to decide on the quality should be tested for. All ship-respondence shows that you in- of the ore. This decision had ments here are based on the petended the contract between been made, and, having suggested centage of antimony. The ship-Messrs. Batt and Messrs. Hallett, It, the defendants were now estopper, as well as the analyst, knows to be arbitrated upon. ped from contesting the quality he is dealing with a sulphide ore. The witness. That was my in- In reply to further questions by tention. The witness added that

of the ore.

Mr. Alabaster: The other side the Court, Mr. Franklin aaid that he was also an importer and could has no right to state that we have if there was a large percentage of look at the question from that broken our contract and that it axide, the ore would lose its origi- point of view. When a dispute has been so decided. Our con- nal colour. Mr. Franklin produc-arose here between importer and tract has never been before an ar- ed a museum specimen" which he Chinese dealer he looked to the bitrator. We are prepared to said was a sulphide ore that, by supplier abroad for reimbursement prove that we did deliver the goods process of nature, was changing after arbitration between the two called for in our contract.. That to an oxide, The gilttering crys- parties in Hongkong, if the ver in all I am going to prove.. tála of the specimen were subdict went against the Hongkong

The Judge remarked that it phide of antimony: the brownish, importer. seemed to depend on whether the earthy-locking material was oxide.At this stage the hearing was contracts between. Messra, Batt He would describe this as a "partly adjourned until today.

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