February 20, 1905.3
appear in them - transactions about the deposit of money and of drafts. Therefore it seems to me that there must be some book which is missing and you have had no evidence that they kept a sterling account in a special book. I would submit that the distinction they seek to draw is very fine indeed. We say that transactions of this nature have taken place between this man and the Chartered Bank and Hongkong Bank. I therefore think it only reasonable to suppose that there must have been another book.
His Honour-It would also be reasonable to suppose that Li Yuk Chee might have done all this business on his own behalf.
Mr. Pollock-Some account books are missing. It is unreasonable to suppose that no accounts have been kept between February and Novem. ber. And if, for instance, a man in the Hongkong Bank is held out to have authority to sell drafts for cash, it cannot be held to be unreasonable to assume that he can sell drafts forward. The distinction is so fine that Your Lordship sitting as a jury should not act upon it.
His Honour-The question is whether the evidence you produced is sufficient.
Mr. Polleck I submit that it is. His Honour reserved judgment.
Monday, 13th Fab Jary.
IN ORIGINAL JURISDICTION. {
BEFORE SIR S. H. BERKELEY (CHIEF JUSTICE).
THE YAN CHEUNG FIRM V. THE SAN YEE U, LD.
This is a claim for $11,991 damages sustained by the plaintiff firm, of Bonham Strand West, on acc ant of the defendunts' non-delivery of yarn. The defendants carry on business in Des Vœux Road,
The Hon. Mr. E. II. Sharp, K.C., instruct‹ 1 by Mr. Johu Hastings appeared for the plain- tiff fiim; and My H: E. Pollock, K.C., instructed by Mr R F. C. Master (of Messrs. Johnson, Stokes and Master) for the defendants, The Hon. Mr. Sharp, in opening, said:-- There are seven contracts between the plaintiffs and the defendants; and this action is to recover damages for non-delivery of yarn under these seven similar contracts of sal The plaintiffs show that these contracts were made on three dates close together, the 8th, 17th and 20th of December 1903. The first of these contracts is
for 200 bales, at $109 for bale, of which the plaintiff got 167 bales only; and 300 bales at a slightly advanced pric, $109, which the defen. dants were unable to deliver in any part. On the 17th December there w. e five contracts.
Altogether these added 700 bales which the plaintiffs were unable to deliver; and on the 20th December there was one contract for 500 bales which the defendants did not deliver. So there was a total of 1,700 bales of which the defendants have only delivered 167, leaving 1,533 still due. The contracts were expressed to be for cargo in godown, but, as it turn d out, the d fendants had only paper cargo, and nothing, or at any rate no great amount in the godown. That is to say, the defendan's entered into the contracts for the sale of yarn which they had not got, specul ting on the state
of
56
+
We
the market when they should have to deliver, and the market went against them. The price rose, and the defendants were unable or rnwilling to meet their obligations. They were unable to go into the market and buy this large amount of yarn, in order to satisfy the plaintiffs, at the contract price. shall prove a rise in the market after the date of the contract. In January 1903 the market price was about $116 per bale, a very considerable rise from $109 per bale. In the middle of February there was a slight re'apse on account of the war. In the middle of March the price was again $116; and before the end of March it was $120. T'hence to the time of the issue of the writ, I do not understand it had fallen below $20
but it might have gone down a little, to $119. And this, as we shall show, is the cause of the trouble. It is important to observe what is the usual way of getting d livery under such contracts. We shall prove that when the buyer wants instalments of the goods he writes delivery orders on the seller,
CHINA OVERLAND TRADE REPORT.
and the seller gets a godown warrant--that is with godown cargo. The goods were expressed to be actually in the godown, and the buyer gets his goods on the spot.
|
His ordship Is your case that the defendant is not bound to deliver unless ask d for delivery ? Counsel-Yes, that is so. Just a few impor- tant instances:-Five days after the first coutract was made, on the 13th December, 1903, we de- manded delivery of 108 biles, by sending a delivery order; and tendered the money for them at the goods or said they had none in the godown. contract price, $109. The defendants had no On this point it is rather important to mention that the defendants gave our messenger an order upon two other me chants with whom they said they had contracts. Our messenger went to the shop of these two other merchants, a d the orders were dishonoured. The defendants consequently returned to the plaintiffs the plaintiffs' original order. I shall prove that a very large number of similar requests, altogether ab ut thirty, for delivery of goods, were made during the next few weeks Sometimes the defendants delivered a little yarn, and these small amounts totalled 167 bals altogether. Generally the defendan's said they had no:e. They said that they expected yarn; it was coming; thy would have it soon. This rau on till March; and the final demand by the plaintiffs was on the 11th April, when they were tired out. Regarding the contracts, delivery was, according to the usual ens om. to be on demand during three months. As two blanks were left in the form of contract, the custom applies. The contract is headed Godown goods." With goods not applied for till after the expiration of three months $5 is charged on each bile of yarn. 'That is, if we do not demand delivery within three months, we have to pay $5, and godown rate then onward runs at our expense bale per month, or two cents per day, is the Sixty cents per customary rate charged after the expiration of three months to cover godown expenses, insurauce and interest the seller under Lakes that the goods are in his
The position is this:- possession deliverable on demand; and the buyer is in a position that he may take delivery at any time within three months without further charge, and if he does not take delivery within the three months, and the seller continues to hold the goods for him. then the buyer will become liable for the charges I mentioned. The buyer cannot. though, be held liable for these extra charges if the seller has not got the goods, as is the case for the defenca. The seller cannot charge bim insurance etc. for goods he has not got.
J11
own and all the rest present were merchants in the plaintiffs' position. The matter was fully discussed at that dinner and the defendant admitted liability, as always he had done, but said they could not deliver. The plaintiffs' so-called foreign firms, as there was plenty of manager asked the defendant to buy from the yarn in the Colony, though, of course, the price was up. The defendant declin d saying that he hoped to hav yarn in a few days. After this dinner the parties were in almost daily commu- tinually requested delivery, as they wanted yarn, nication through the broker. The plaintiff con- and the defendants constantly procrastinated. On the 1st April the plaintiffs asked for 90 bales, and the defendants, as usuál, said they had none; but they said that some friend of theirs, the Kwong Long Chung, had 25 bales. Therefore the plantiffs reduced the delivery order and made out a fresh one for 25 bales, and the defendants then gave them an order on the Kwong Loong Chung for 25 bales. This order,as usual, was dishonoured. The Kwong Loong Chung had not any, so the defendants | 11th April, I pass over
feturned the original delivery order. On the final demand was made. The plaintiffs being other requests, the tired of waiting, a clerk went to Mr. Hastings, and then that same accompanied by Mr. Hastings' clerk, went to morning, see the defendants, and demanded a number of bales under the contract dated the 8th December The man said he had not got any, and wanted them to take over the contracts of other mer. chants; he had no yarn. Thereupon Mr.Hastings. wrote a formal demand and threatening action, and the forbearance the plaintiffs had hithen to shown ceased. The importance of this is that it not only shows the date the plaintiffs' for- bearance ceased, bit that the defendants up to this time did not make any suggestion of t'e first time in a letter from Messra. Johnson, non-liability. This suggestion, mentioned for Stokes and Master, clearly emanated from a lawyer's clerk.
His Lordship-Th. requirement to pay a deposit shows that the goods must be there.
Counsel-Yes, he says " Very sorry, I have'nt got the goods; you can break the contract if you like." Can he then charge insurance and godown expenses? On the 3rd March there Was an important interview b tween the parties. On that day the manager of the plaintiff firm and several other merchants similarly situated, unable to get yarn out of the defendants, called on the manager of the defendant com. pany, and requested him to deliver for the thirtieth or fortieth time. The defendant yarn managing partner explained that they could not deliver, as their own ven lors, Yunnan mer. chant, had made default under contracts with them. He then said they hoped to be able to deliver in a few days, and proposed to the plaintiff manager that he should take over these contracts (with the Yunnan merchants) instead of the yarn. This offer was declined, because the plaintiffs had already had every order on these same merchants dishonoured --orders by the defendants-and knew that the defendants would have got delivery long ago if the gods were obtainable. The cargoes were in fact "paper cargoes." Subsequently the roker went round to the merchants and found in fact they had no yarn. On the 4th March, the following day, the broker, Chau Pun San, obtained a list from the plaintiffs of all the yarn due under the contracts, and took it to the defendants for their perusal. On the 9th March there was another important interview between the parties. The managingartner of the defendant com- pany had had the list and invited the plaintiff manager and other me:chants to dinner at a restaurant. The defendant bad a friend of his
|
fact. Was the defendant asked and did not His Lordship:-It comes to a question of deliver, or was it that the plaintiffs did not ask?
Counsel-That is so; and if a buyer at a seller's request temporarily forbears to insist on the delivery, the damages ultimately for non- delivery are calculated on the market price when the buyer withdraws his forbearance. plaintiffs did so when they refused to grant The further indulgence, when their clerk went to the defendants with Mr. Hastings' clerk. refused, but took it as a request and forbore as could have commenced an action every time they they said they expected goods in a few days. The questions for Your Lordship, I submit, are only two and very simple: -
We
1-Did the plaintiffs demand delivery of the goods in these contracts? I will prove ths they did constantly and the defendants constantly pro- crastinated.
The defendants submit that the plaintiff, holding these higbly favourable con- tracts, abandoned all rights. There can be no doubt that they were highly favourable con- tracts, owing to the ise in the market.
2-Did the market price rise after the dates and immediately after, and very considerably. of these contracts? We shall prove that it did The defendants deny any rise at all, but I think the evidence on these questions can only be answered in the plaintiffs' favour, and that the plaintiffs will be entitled to judgment.
Evidence was led. The case was adjourned.
Tuesday, 14th February.
IN SUMMARY JURISDICTION. BEFORE HIS HONOUR MB. T. SERCOMBE SMITH (PUISNE JUDGE).
DEUTSCH-ASIATISCHE BANK V. THE WUI SHING HING BANK.
The Puisne Judge gave judgment in this action. As on previous occasions Mr. H. E. Pollock, K.C., instructed by Mr. H. J. Gedge (of Messrs. Johnson, Stokes and Master · appeared for the plaintiffs; Mr. N. Ferrers, instructed by Mr. P. W. Goldring (of Mr. G. K. H. Brutton's office) for the defendauta
His Honour said This is an action in which the plaintiffs seek to recover a sum of $785.84 as damages for breach of
No comments yet.
Private notes are available after approval.