November 7, 1895.]
The Puisne Judge-It was admitted that as between vendor and purchaser the scale adopted by the respondents was right.
CHINA OVERLAND TRADE REPORT.
The Puisne Judge-It is the more accurate, but not the actual contents, as the witnesses kept on saying you could not get the actual cubical contents of found logs.
Leave to appeal was granted and as the appeal is on a point of law a special case was
Mr. Pollock-Any weight or measurement sanctioned or laid down by Act of Parliament or by Ordinance cannot be altered by any evidence of custom. I was going to refer your Lord-ordered to be filed. ships to some cases on that point afterwards.
The Chief Justice-You mean that the custom cannot apply in Hongkong as between vendor and vendes ?
1
5th November.
IN SUMMARY JURISDICTION.
$45
instead of $9.72 Next two items amounting to $36.68 admitted and allowed. For the French wall at 25 cents I allow $31.88 as against $44.55. Item of $6 allowed. The next five items are admitted and allowed, amounting to $62.35. $8 item allowed. With reference to the verandah Mr. Danby has worked his prices out and I feel bound to accept them and shall therefore allow $80. On the above calculations therefore the value of the work done amounted to $637.83, including the verandah, and after deducting.. the $366 paid on account there remains to the
Mr. Pollock-Suppose the vendor sold a thousand feet of timber and said nothing at all BEFORE MR. A. G. WISE (PUISNE JUDGE). plaintiff the sum of $271.83. I have not taken
about the custom, but said that payment was to be made for every one of the thousand feet of timber delivered, then no evidence of custom would be admissible because it would be repug- nant, and also because no evidence of custom is admissible to contradict any weight or measure which has been specially laid down by Act of Parliament or Ordinance.
The Chief Justice-“ Each and every foot is not different from "per foot."
The Puisne Judge-The thing that struck me was that the plaintiff know the timber had to be measured in Hongkong, and he knew how it had to be measured. That is what was in my mind.
Mr. Pollock-The plaintiff had previously objected to be paid according to Messrs. Butter- field and Swire's measurement, but the charter party in that case was with Messrs. Gibb, Livingston and Co. and contained words about the trade custom.
The Puisne Judge-And he was told that was the only way timber was measured.
Mr. Pollock I submit that the fact that in
this case the words about the trade custom were omitted is very strong evidence that the captain intended not to be bound by this custom. He had an object in including the words "each and every cubic foot delivered." Mr. Wheeley said that in his experience he had never seen a charter party drawn up without the words
*according to traed custom."
#4
The Paisne Judge-It was in evidence that if a charter party did not contain words respect ing trade measurement timber was measured according to Table II. of Hoppus and freight was paid on that.
The Chief Justice-I think there is some distinction arising from the words "delivered in Hongkong," but I cannot say I am much im. pressed with the expression "each and every cubic feet of timber." I do not see why a mean- ing should not be given to a cubic foot of timber.
Mr. Pollock-What meaning? The Chief Justice-What was understood by both parties, whatever that might be according
to the evidence.
Mr. Pollock-I do not think the captain knew. The Chief Justice-The learned judge thought he did.
The Puisne Judge-What the captain was trying to do was to spring a mine on them; there is no doubt about that.
The Chief Justice-As far as I remember about the illustration of a thousand rabbits you cannot have a greater contradiction than that. Everybody knows outside the particular market that a thousand is ten hundred, but in this particular market it was shown that it is twelve hundred. It seems to me that a contrast to buy timber in Hongkong at so much per cubic foot is just the same as saying so much for each and every cubic foot."
Mr. Pollock-The words "delivered in Hong; kong" show expressly that every cubic foot carried was to be paid for at the rate of so much per cubic foot.
The Chief Justice-We will give you leave to appeal. I understand you do not dispute the existence of a custom and the correctness of the measurement.
Mr. Pollock-We do not dispute the correct- ness of the meɛlaurement according to their method.
The Chief Justice-You dispute the applica- tion of fine measurement ?
Mr. Pollock-Quite so, my Lord.
The Puisne Judge-I think there is no doubt that Mr. Pollock's measurement is better-at all events for the carrier.
Mr. PollockAnd I submit fairer; it is all that is carried.
|
THU CHỐNG U. CHAN KAM FONG AND
ANOTHER.
from the defendants for work done at 12, Wel- Plaintiff brought an action to recover $390.21
lington Street. Mr. Reece appeared for the plaintiff, and Mr. Grist for the defendants.
The plaintiff's case was that he was instructed by the defendants to add a floor to 12, Wel- lington Street, a house of three storeys. He did the work, and the total amount of the bill was $676.21, but the defendants refused to pay the whole of this and they were therefore sued for the balance. Mr. Danby, architect and surveyor, said he had examined the work and the charges made were quite fair On the other hand Mr. Leigh, for the defendants, said the charges were excessive and not in accordance with those in the Government schedule.
into consideration the 18 per cent. discount referred to by Mr. Leigh as I do not think that the plaintiff is bound in this case by any such custom. As the plaintiff without taking into had his amended particulars reduced by about consideration his originál exorbitant claims has 30 per cent., I do not think he is entitled to his costs and as the defendants have, without reference to the additional $80 for the verandah, not paid nearly sufficient into court to cover the plaintiff's claim he is also disentitled. The judgment will therefore be for $271.83 and no order as to costa.
8 CENE IN THE HONGKONG HOTEL.
ASBESTOS V. MICA COMPOSITION. At the Police Court on Saturday, before Mr. T. Sercombe Smith, Mr. John Andrew sum- moned Mr. Cyril Holdsworth for "using insult- ing words to the complainant, whereby a breach of the peace might have been occasioned, on the 30th and 31st October."
His Worship (to defendant)-Do you plead guilty ?
Defendant plead guilty to using the language, but it was justified
His Worship-Was the language such that a breach of the peace might have been occasioned? Defendant No, sir, a breach of the peace could not be created with that thing; it is impossible.
room
The complainant then gave evidence and said -On Wednesday, 30th October, between twelve and one o'clock, I was sitting quietly in the billiard
of the Hongkong Hotel when Mr. Holdsworth came in and ad- liar." dressed me. He said "You are a He used other abusive language, but I cannot 'I don't wish recollect it. I simply said, to speak to you." On the next day, the 31st October, I was standing in the billiard Foom about the same time. Mr. Holdsworth came in and called me a
pimp," and used other choice expressions which I cannot remem- ber, but I heard the word "liar." I did not speak to him.
16
His Worship-Have you any questions to put to him, defendant ?
Defendant-No, sir.
His Lordship delivered the following judg. ment-This is a claim for work and labour done. The plaintiff originally claimed $1,027.90, but this claim was so manifestly exorbitant that the plaintiff's own architect cut it down to $676.21. At the trial the plaintiff was allowed to add 880 to his claim on account of a verandah and as it is admitted on both sides that a sum of $366 has been paid on account the plaintiff's claim now stands at $390.21, less some small items which were given up at the hearing. This sum is based on a calculation made by Mr. Danby, the plaintiff's architect. The defendants on the other hand have taken Mr. Danby's particulars and have had the work measured and the prices fixed by their own architect, Mr. Leigh. Mr. Leigh values the work done, exclusive of the verandah, at 8483.30, from which he deducts 18 per cent. (equal to $87) in accordance with some al- leged custom. He thus reduces the total to $396.30, from which deduct $366 already referred to, leaving a balance of $30.30, which the defendants have paid into court. When Mr. Leigh made his calculations he had no notice of a claim for the verandah, but at the hearing he assessed the cost at $40, so that really the defendants admit $70.30. The discrepancy between the calculations of the two experts appears to have arisen as follows. Mr. Danby states that he has fixed his prices on his own practical expe- hand seems to have been guided chiefly by the rience in this colony. Mr. Leigh on the other
prices contained in a scale laid down by the Government for the guidance of architects and contractors. The question for the court there. fore to decide is what is a fair remuneration for the work done, and the only way of arriving at this is to take the amended particulars and go through them item by item. Before doing so may mention that the Government scale, though not binding on the plaintiff, yet has to my own knowledge been frequently quoted in this court as a fair basis on which to work. First item of $231.35: the measurements are agreed upon, but there is a difference of $2 for the price of work. However, I think the plain- tiff's price is a fair one and I allow it. For the next four items I allow $39.20 instead of $41.85. For glass allow $6.95, being the price accord- ing to the evidence for ordinary Belgian. The next two items amounting to $4 are admitted. With regard to the floor of the cockloft, taking the thickness at three-quarters and the price according to the Government scale and adding $3 for painting, I allow $18.73 instead of 330.66. In the next four items I allow $3 all round in accordance with Government scale and add $10 for painting, making $44.66 as against $85.99. As to the items of $74.94 I allow $57.42, including $6 for painting. The next two items are allowed at $3 and amount to $2.10 as agyinst $4.88. 16 cents allowed. The His Worship-Will you stop talking PI next five items are allowed at $3 as before, amount-shall punish you if you do not mind what you ing to $4.78 as against $12.75. Bed allowed at are about. You are here to ask questions; that 85. China fir poles at 2 cents allowed at $6.48 is all. Have you any more questions to ask?
His Worship-Do you admit all this? Defendant Yes, and more. I can give you a detailed statement of everything I told him, He has forgotten, but I have not forgotten. I should like to ask him one question. What was his object in telling Captain Tillett, the superintendent of the Canadian Pacific Com- pany, that I am buying material from him (witness) and calling it my mica composition ?
+
Complainant-As a matter of fact, defendant did buy two tons from me, and he did not pay for it. He bought it as asbestos; whether he uses it as mice I do not know.
Defendant Did you tell Captain Tillett that I was buying composition from you and using it as mica ?
Complainant You did buy two tons of as- bestos from me and I told Captain Tillett.
Defendant-When did I buy two tons of
asbestos?
Complainant-In May or June. You also bought an additional five tons, but did not take delivery of it.]
Defendant-Did you represent to the captain - of the Mongkut that I was applying your composition to the boilers and calling it mine?
Complainant No.
Defendant I have seen a letter in which you asked for a certificate-
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