February 9, 1897.1
osa, however, has the advantage of within easy reach of the seat of rnment at Tokyo and it ought there- fore to take a proportionately shorter time for its requirements to become known there. Of these requirements a strong and efficient police force would appear to be the most pressing. It is a requirement not very readily supplied in a new country, but no effort should be spared to bring into existence a really good force as speedily as possible. A liberal expenditure at the beginning would be true economy in the end Hongkong in its earlier years had a painful experience of inefficiency and corruption in the police force, when crime of all descriptions was rife and life and property unsafe. There is a great deal in Hongkong that Japan might advan- tageously follow in the administration of its new dependency, but there are also some pages in our history that it might with equal advantage be taken as warnings of what to avoid, General KAWAKAMI has recently visited the French possessions in Indo-China with a view of studying their administration, and he will have seen there, even more strikingly than in the British colonies, the blighting effects of an exces- sive routine and of departmental jealousies. -In the development of Formosa Japan would do well to entrust the administration to capable and trusty statesmen and not to allow the plans of the latter to be thwarted by bureaucrats at Tokyo, More especially should such a demand as that of General Noarts for an efficient police force meet with ready acquiescence.
SUPREME COURT. /
29th January.
CHINA OVERLAND TRADE REPORT. proved that defendant firm had 660 bags of star brand in stock on 9th November, so that the and the suggestion that defendant refused de- excuse for non-delivery was a very stupid one: livery because he scented a rise in price in the immediate future is more than refuted by the fact that on the 24th November defendant sold at $1.85 a bag. The balance of the weight of evi- dence and the probabilities of the case incline me to decide that plaintiff did not apply for deli- very in person and tender the price within the then for the Court is whether, according to the 14 days limited by the contract. The question true construction of the contract, time was of the essence of the contract. At law time was always of the essence of the contract, but in equity time is held to be of the essence of the contrast only in cases of direct stipulation or of necessary implication. But this rule of equity only applied to contracts" such as purchases and could be collected from the contract, the Court sales of land where, unless a contrary intention presumed that time was not an essential condi- tion; to apply this to mercantile contracts would be dangerous and unreasonable." Renter . Bals, 4 Č.P.D. 249. Again, "if the parties choose, even arbitrarily, to stipulate for a parti- cular thing to be done at a particular time, ch's stipulation is effectual in equity as well is of the ecsence of the contract depends upon na at law." The question whether time the nature of the goods sold, upon the construc- tion of the contract, and upon the objects which the parties had in entering into it or upon what must be judicially assumed to have been their intention; for that may sometimes be different from their actual intention (per Grove J. in goods in this case consisted of flour, a commodity Patrick v. Milner, 2 C.P.D. pp. 347,348). The which deteriorates with keeping, especially in a climate like that of this colony. The nature of the goods then points to the probability that a time would be fixed within which delivery should be taken or given. Again, the nature of the goods necessitates storage involving godown rent; and this indicates the pro- bability of a fixed time for removal having been present in the minds of the parties at the time of making the contract. Was the object of the contract merely the transfer of a certain num- reasonable period? If land is sold, the main ber of bags of flour within an indefinite but object is to tranfer the premises, and the time within which the contract is to be completed the price of land is not likely to fluctuate and is not of essential importance. Why? Because the properties of land are not likely to vary within a reasonable period of time. But here we are dealing with a commodity subject, as His Lordship, in giving judgment, said-On and it seems probable that the parties would the evidence shows, to duotuations in price; 29th October, 1896, the parties to this suit guard against snoh fluctuations by limiting a entered into a written Chinese contract, of time beyond which they should not be exposed to which the translation runs thus:-"The Kai such fluctuations. Turning now to the contract Wo illustrious firm has ordered through broker itself. The language is emphatio and says 200 bags of star brand flour at 81.85, at 99" Delivery shall be taken within 14 days," the teel for cash (1 per cent. discount.) It is which points strongly to a limit of time being agreed that delivery shall be taken within 14 fixed. It was argued, however, that the sub- days at 99 per tael for cash.
been thoroughly examined. All the goods the time has expired," express that it was within The sample sequent words, "if no delivery is taken after hall be taken delivery of whether good the contemplation of the parties that the time bad. If no delivery is taken after the of taking delivery might be exceeded, and that, time has expired the seller shall be at liberty therefore, the parties did not intend to make to sell the goods on [the purchaser's] be-time of the essence of the contract. I agree so half it matters not whether the price then be up | far that the parties did by these words contem- down. —- All losses and expenses of sale, plate a possibility of the time being exceeded; hether more or less, shall be made good by the but I do not agree that the parties because These arrangements have been they contemplated such a contingency did to by both parties face to face. This note the less intend to settle the time for taking as evidence;" to which is affixed the chop delivery. The parties appear to me to have Kang Yik Wo firm. The plaintiff said "The vendee must take delivery with alleged that on the 9th November he personally in a fixed period; if he fail to take de- the defendant firm for delivery and livery the contract will be at su end and
price of the goods: he could not, the vendor will have certain remedies." call the name of or identify the per- first blush it may appear as if it was the in- At applied, and his application of tention of the parties to keep the contract open d by the persons in the defendant till the vendor had exercised the remedies which plaintiff admitted that it he was to be at liberty to exercise; but I reject coolie with a do- this construction because it involves the possi- by the delivering bility of the contract remaining open for an in- conduct in going in definite period, a state of things contrary to mer- no coolie available oantile modes of business. Had it been stipu
he was anxious lated that the vendor was bound to sell the goods on the vendee's behalf and charge him Amor with any loss on the contract price and all or delivery penses of the sale, the Court might have taken rrived but it
w that the contract was open up to the
IN SUMMARY | JurisdictioN. Baroza Ma. T. SERCOMBE SMITH (ACTING PUISNE JUDGR.)
KAI WO V. THE KWONG TIE WO.
In this case, which was heard on the 19th January, the plantiff Kai Wo sued the Kwong Yik Wo for non-fulfilment of contract. Mr. Wilkinson appeared for the plaintiff and Mr. J. Hastings for the defence.
purchaser
rder to conNS
date of such sale. But this is merely by way. It is, h moreover, noticeable remedies which he could have enforced by remedies reserved to the vendor are the action had time been beyond doubt of the Court in arriving at a determination of what essence of the contract. This fact assists the must be judicially assumed to have been the in tention of the parties. There is another straw on the stream, and that is that the period of 14 days is an exceedingly reasonable time of 200 bags of flour; and equity will only give for the fulfilment of a contract to take delivery. relief, where a time has been fixed, when it plated was simply that an act should be done appears that what the parties really contem within a reasonable time. It was further urged that, assuming that time was originally of the essence of the contract, the vendor had waived this condition precedent and converted it into dee and asking him whether he intended to take warranty by subsequently approaching the ven- the flour. Immediately upon the expiration of the 14 days the vendor, for five or six days to take delivery: this I find as a fact. Was in succession, sent an agent to ask the vendee this such conduct as to operate as an implied waiver of his right to insist on time as being of the essence of the contract? or did it con- him 200 bags of flour upon condition that he stituta merely a daily offer to the vendee to sell took immediate delivery? If there was an offer to make a new contract in substitution for the former contract, the vendee's ground of action is cut away beneath him because he did not accept the offer. If, however, the vendor's conduct amounted to a waiver of dication of the length of time after which his original right, does there exist any in-
If may not be assumed that the operation the effect of the waiver would be exhausted?
Now
of the waiver was never to determine. the parties had had previous dealings with each other, and it is evidence that the vendor's usage was to allow several days' grace to his customers. A knowledge of this bustom may therefore be imputed to the rendes; and such knowledge accordingly amounts to a notice by the vendor to the vendee that, upon the expiration of the usual days of grass, he, rescinded if delivery had not been taken. Find the vendor, would consider the contract as ing that the vendes did not avail himself. of the days of grace, but delayed till 12th Decem- sending to take delivery, and that the vendor ber, when the price of flour bad risen, before had held no communication with the vendee for a month previous to that date, I am of opinion, even on the construction more favourable to right, that the contract was rescinded upon the the plaintiff, viz., that defendant has waived his expiration of the usual days of grace. Judg- ment is therefore for defendant with costs.
HONGKONG SANITARY BOARD,
Board was held at the offices on the 28th Janu
The usual fortnightly meeting of the Sanitary
ent of Police) presided and there were also ary. Hon. F. H. May (Captain Superintend present Dr. Clark (Medical Officer of Health), Mr. N. J. Ede, Mr. H. P. Tooker (Acting Director of Public Works), and Mr. H. McCallum (Secretary).
MINUTES.
read and confirmed.
The minutes of the previous meeting we
SMALLPOX AT HYOGO.
The British Consul at Hyogo forwarded report showing that for the week ended 4th January 67 occurred resulting in 38
new cases of smallporTM had Consul, in forwarding the report, said a
deaths. The
ber of cases he did not propose to send any there had been a marked decrease in the num further returns unless desired to do so to continue to have the returns forwarded for The members thought it was desirable the present.
THE PLAGUE AT BOMBAY
of bubonic plague in Bombay, A report was received showing period from 24th December last |ary 924 cases and 708 deaths we
- MORTALITY STA The mortality statistics January 16 showed a dee
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