September 23, 1897.]
The Chief Justice-You think some unlearned person drew it?
Mr. Francis-The office coolie drew it, pro- bably. (Laughter).
British Kowloon, and he appeared to have, on the face of the agreement, the exclu- sive right to quarry granite in a certain limited number of quarries in Kowloon which were marked on the plan and signed by an officer of the Public Works Department and also by the plaintiff. Defendant had the right to quarry granite in Kowloon, not in any por tion of the quarries assigned by the Govern- ment to the plaintiff, but on some portions of British Kowloon which were not included in the contract rights given to the plaintiff. It was alleged that in consequence of the defen- dant having quarried the stone he had deprived the plaintiff of what plaintiff alleged to be his right to get a certain fee or royalty in respect of all stone quarried in Kowloon. The plaintiff asserted that under his agree- ment with the Government he had an exclusive right not merely to quarry stone in the particular quarries in respect of which the right was granted to him, but also a right to levy on persons quarrying stone in Kowloou a certain royalty in respect of the stone quar- ried. Counsel admitted that if that right existed in the plaintiff so as to effect the defendant there was an infringement of that right by the defendant. Therefore there was no dispute as to the facts. The defendant paid no royalty to the plaintiff and it was there- fore for the plaintiff to establish his exclusive right to quarry granite in British Kowloon, The only document put forward in support of the plaintiff's case was a contract between him- Mr. Francis, in reply, submitted that the self and the Government dated 24th December, words "sole privilege' in the agreement were 1896. That document professed to be an agree-exclusively confined to certain defined quarries. ment between the plaintiff and the Government, bat in that agreement there was no specific grant of any description. The agreement was not made under any Imperial law or local Ordinance whatever. There was no law which empowered the Government to grant any sole privileges or to farm out these quarries or to deal with them in any way as, for instance, the Government was authorized to do under a special Ordinance of the colony in respect of raw and prepared opium. The agreement had to stand or fall according to common law.
The Chief Justice--The agreement does not purport, not could it purport, to confer a monopoly of granite at Kowloon it only purports to deal with granite belonging to the Crown at Kowloon.
Mr. Francis said it gave the sole privilege of farming for a period of twelve months, com- mencing from 1st January, 1897, within an area marked on the plan and belonging to the Government.
The Chief Justice Do you contend that the Government cannot, at common law, deal with these granite quarries in that way?
Mr. Francis-Certainly it can, but not so as to confer on an individual any rights over and against a third party except in respect of the specific area mentioned and referred to in the plans. The Government have granted this man the exclusive right to quarry granite in certain defined areas: that they can do.
Mr. Robinson said he did not know who drew it. The form had perhaps been handed down from generation to generation and, like many old precedents, was bad. All this land belonged to the Government, who alone could give the right to anyone else. Therefore, by reserving to itself only and for a specific purpose only the right to quarry the stone, it excluded all other persons from such a right and gave the sole right to Chan A Tong, Chan A Tong had paid not only for right to quarry granite in certain defined areas but also on the understanding that it was ex- elusively his right.
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295
CHINA OVERLAND TRADE REPORT,
24th December, 1896, gave the respondent the matches through a broker, from the defendants, sole right to quarry granite or to farm granite The plaintiffs then, by their salesman, filled up quarries for private purposes in British Kow-two documents (exhibit 1) in practically identical loon. If it did give that right then he contended terms. They both had the same indent numbers that the defendant had infringed the right; and date. The first stated that the defendants if it did not the plaintiff could bare no had ordered from the plaintiffs certain goods claim against the defendant. The agreement as specified therein, to arrive at certain dates, was not a licence; it gave the right to farm and the second stated that the same goods the quarries. Nor was it a monopoly. The whole had been ordered by the plaintiffs for the question resolved itself into the constraction of defendants to arrive at the same dates. The the contract. Had the right been conferred? first was chopped by the defendants and kept by If it had not the plaintiff's case fell to the the plaintiffs and the second was signed by the ground, if it had the right had been infringed.plaintiffs and kept by the defendants. Some Counsel admitted that the agreement was inac- time after the broker went to the plaintiffs curately drawn.
and stated that the defendants wished the Chinese hong name put on the matches. This was agreed to and at sometime, though it is not quite clear when, the plaintiffs added the words" with Chinese hong name to the docu- ment already chopped by the defendants and kept by the plaintiffs, though, for some unex- plained reason, they did not do so to the other document. The plaintiffs then wired to their correspondents at home, and, on receiving a reply that the order could be filled, they com- municated with the defendants, and the sales- man of the plaintiffs wrote "Settled, 13/3/96, J.B.," on each of the two documents, and the broker took away and brought back with the signature of the defendant firm on it, the one which had been previously chopped by them and which the plaintiffs retained. It must be presumed, of course, that the other document with the words "Settled, 13/3/96, J.B.," was returned to the defendants as they produced it at the trial. So far with regard to the first transac. It was not the sole privilege of quarrying tion. With reference to the second transaction granite in Kowloon, but the sole privilege of the facts appear to be as follows. About Febru- farming the quarries within the area coloured ary 29th, 1896, the plaintiffs got an order fer on the plans. As to the meaning of the word 300 cases of " Brilliant" matches at $30 a case farm counsel said it meant that Chan A from the defendants. The plaintiffs then, as Tong farmed the quarry to be work at a profit in the previous transaction, by their salesman, on paying rent. He had the privilege of farm-filled in two documents as before (Exhibit 2). ing from the Government and not of farming The indent number (8652) was the same, and, out to other people. There had been no tres- though the dates vary, no objection was raised pass, no tort, committed by the defendant against to this at the trial. The first stated that the the plaintiff, and if the plaintiff had a remedy it defendants had ordered from the plaintiffs cer- was only against the Government.
tain goods as specified therein to arrive at cer- tain dates, and the second stated that the same goods had been ordered by the plaintiffs for the defendants, to arrive at the same dates. The first was chopped by the defendants and kept by the plaintiffs, and the second signed by the plaintiffs and kept by the defendants. Certain alterations were afterwards made in these two documents.
The Chief Justice We both think in this case that the right of the matter is with the respondent. He has suffered a wrong, but we will take time to consider whether there are any technical reasons why that right should not be maintained.
15th September.
IN SUMMARY JURISDICTION.
After the plaintiffs had tele- graphed home 300 cases was altered to 200 and the price from $30 to $30.50 but these alterations do not affect the present case.
BEFORE MR. A. G. WISE (PUISNE JUDGE.) There was also another alteration about 7 or 10
STOLTERFOHT AND HAGEN V. THE HIM
SHUN LOONG.
His Lordship delivered judgment in the above suit, in which plaintiffs sought to recover $1,000 damages for failure to take delivery of matches ordered by the defendant firm.
Mr. J. J. Francis, Q.C. (instracted by Mr. Bowley), appeared for the plaintiff's, and Mr. M. W. Slade (instructed by Mr. Looker) for the defendants.
Continuing, counsel submitted that the pro- perty was not properly created because it could be created only by deed. No right could be given to the plaintiff as against a third party outside the area within which His Lordship-This suit was brought in the his exclusive privilege extended. Section Original Juridiction to recover $1,291.21 on a 9 of the agreement, which the plaintiff had specially endorsed writ, being, according to relied upon, said that all other quarries, beyond the writ, the balance of the price of goods those outside the defined area, and the right bargained and sold by the plaintiffs to the to work them, were reserved by the Government. defendant on March 18th and 17th, 1896, The defendant had infringed no right and had of which the defendants agreed to take deli- been guilty of no wrong whatever as regards very within two months after the arrival of Chan A Tong. If Chan A Tong had a remedy each parcel in Hongkong, paying cash on it must be against the Government. The agree delivery. The said goods arrived in Hong- ment was imperfectly and badly drawn and it gave kong on or before Sept. 29th, 1896, and the de- no exclusive right as against the defendant to fendants were duly notified of such arrival, but The document the defendants, having failed to take delivery quarry granite in Kowloon. was really a licence to Chan A Tong to eat within the contract time, plaintiffs sold the granite in certain specified quarries in Kowloon. said goods after notifying the defendants of their There was a direct undertaking by the Govern-intention to do so." Then follow particulars of ment that they would not themselves use the other quarries except for public purpose and ca implied undertaking that they would not allow anyone else to work the quarries. If the plain- tiff had any right it was against the Govern- ment for not taking proper precantions in seeing that no one else quarried granite in any other quarries in Kowloon.
Mr. Robinson, on behalf of the respondent, said the issue was whether the agreement of the
the claim. The suit was then transferred, on the plaintiffs reducing their claim to $1,000, to the Summary Jurisdiction of this Court. For- tunately in this case, the facts as stated by the witnesses for the plaintiffs are admitted or not disputed by the defendants. The facts are as follows, and, as there are two transactions in dispute in this case, it will be well to take them separately-About March 7th, 1896, the plaintiffs got an order for 400 cases of coloured
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days, to which no objection was taken by conn- sel for the defendants. However, on March 17th, 1896, after having heard from Europe, the plaintiffs, by their salesman, altered the dates of arrival on the document chopped by the defendants from "June, July, August," to "August, September, 1896 or sooner if possible about 60 per month." But on the document signed by the plaintiffs he only altered the dates of arrival to " August or sooner if possi ble." Having made these alterations he wrote "17/3/96, Settled, J.B.," on each document. So much for the second transaction. It may be mentioned here that both exhibits (1 and 2), contain a clause to the following effect:-"I respective parcels do not arrive in Hongkong within the periods respectively mentioned, either party to be at liberty, without rendering them- selves liable in damages, to rescind this contract as regards the parcels not arriving in time, but no further." Of the 400 cases it was proved and admitted that the whole amount arrived in due time and with the Chinese Hong name, and that notice of such arrival was duly given to the defendants and that they took delivery of and paid for 150 cases but failed to take delivery of the balance.
With reference to the 200 cases it was admitted by the plaintiffs that only 165 had arrived by the end of May and they make no
claim for the other 35 cases which arrived later.
Of these 165 the plaintiffs also admitted that only 14 cases Lare the indent number 8,652, but they stated (and it is not disputed) that the matches tendered were otherwise of a similar description and quality as those ordered. The defendants were duly notified of the arrival of the 165 cases, and they actually took delivery of 50 cases and paid for them. About November, 1896, it was
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