Page
April 3, 1905.J
Lemaire and Company. In the first the Hong- kong Hotel claimed $7 for refreshments supplied, and in the other Cheong Lee and Company, of 29 and 31, Des Voeux Road Central, claimed $182.55 on account of furniture | sold and delivered. In the latter action Mr. A. E. Bonnar (of Messrs Dennys and Bowley) appear d for the plaintiffs, and Mr. P. W. Goldring, who sought to make a composition, for the defendant. Judgment went against the defendant in both ac ions, His Honour Baying that the defendant and Cheong Lee and Čom- pany could arrange any terms of payment they chose. TEE WO CHEONG V. EASTERN AND AUSTRALIAN
STEAMSHIP CO., LD.
Judgment was given in this action. Mr. Norman Ferrers, instructed by Mr. R. A. Harding, appared for the plaintiffs; and Mr. H.E. Pollock, K.C., instructed by Mr. John Hays (of Messrs. Johnson, Stokes and Master), for the defendants.
His Honour aid-In this action Yes Wo Cheong, a Chinese firm trading at 101, Bonham Strand East in this Colony, seek to recover from the Eastern and Australian Steam- ship Company, Limited, whose agents in Hongkong are Messrs Gibb, Livingston and Company, the sum of $1,000 as damages for the non-delivery of certain sand lwood shipped at Timor on the steamship Emp re for carriage to Hongkong. It appears that on the 12th October 1904 the defendauts steamship Empire called at Timor and took on board a cargo of sandalwood in respect of which bills of lading were signed by the defen- dants' agoat. Under two of these bills of lading the Yee Wo Cheong were consignees. These two documeuts follows:-
are
the
as
"Shipped in apparent food order and well conditioned, &c., &c., a lot of sandalwood said to be 631 pieces, a lot of sandalwood said to be 78 pieces and a lot of sandalwood said to be 2,478 pieces being marked and numbered as in the margin, etc, etc."
The total of the pieces entered in the two bills of lading was 8,187, and it is agreed tha only 3,074 pieces were delivered in Hongkong to the consignees.
If the bills of lading had not contained the words "said to be" or other qualifying words, the shipowners would have had to prove that 3,187 pieces were not as a fact shipped at Timor, but that only 3,074 pieces were shipped, in order to establish a successful defence in an
action for damages for short delivery.
The principal authorities for this proposition are McLean Fleming L. R. 2 H. L. Sc. 128, Harro ng v. Katz 10 T. L. R. 115 and 400, and Smith v. Bedouin 8. N. o. (1896) A. C.70. If, how- ever, qualifying words, such as those used in these bills of lading are introduced, it was argued, on the authority of Jessel v. Bath L. R.2 Ex. 267 and Lèbeau v. G. S. N. Co. L. R. 8 C. P. 96, tha the onus moved from the shipowner to the shipper or consignee to show that, as a fact, 3,187 pieces and not only 8,074 pieces, were received on board by the shipowners. Conced- ing that the authorities quoted establish that the onus is shifted, I am of opinion that the plaintiffs have discharged "that ода, and proved, as
well as could be proved, that the number of pieces 3,1 7 ent.red on the bill of lading, as opposed to the 3,074 pieces actually delivered, were shipped. They have also proved that there was a mistake in one bill of lading in which the figures 78 should have been 87, as they appear in the mate's receipt as altered by the shipowner's agent, and in the Timor Castoms Export docu- ment. The total number of pieces shipped was therefore 3,196, and the shortage was 122 pieces. Though I bare said enough for the purpose of my decision, I will make a few observations on points which arose in the case. The conduct in Hongkong of Lai Shuk-hoi, who saw the pieces shipped at Timor and accompanied them to Hongkong, raises no suspicions in my mind that he has testifiel falsely in order to enable the shippers in Timor to obtain from the consignees the price of more pieces than those shipped.
Shortly, if not immediately after the s.s. Empire arrived in Hongkong on the 20th October, some of the pieces of sandalwood shipped by her found their way to Macao. Such pieces were either a portion of the pieces
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CHINA OVERLAND TRADE REPORT.
217
opinion that was sufficient to establish partner- delivered to the consignees, or a portion of the
It is ship, because it was clear that partnership pieces on board, but not delivered.
might exist without any written agree almost certain that three of these pieces were a portion of the pieces delivered to the plain ment. The two to one argument did not weigh tiffs. If that is so.. the effect is only with him altogether, because what one had to have been consider when weighing evidence was not the to show that the consigne s defrauded after delivery, either with or with quantity but the quality. Tang and Chang's for the plaintiffs, strack him ont the connivance of their servants; for the evidence consignees did not send or sell the pieces to favourably as compared with that of the defendant. He was not obliged, however, Macao, and would not be lit ely to send them to a marine store dealer in that colony, or under a to rest his judgment solely on the evidence false name. The incident cannot affect the of these question of how many pieces were actually shipped at Timor, unless, as is not the case, it had been proved that Lai Shuk-hoi had been a party to the fraud on the consignees; in which case his evidence would have been tainted and
unreliable.
I have doubt that a misunder- censurable under the cir- standing, not cumstances, occurred in the record of the report made by Yip King-nam at the Water Police Station. I can ascribe no motive to him in deliberately making a false report; but if he made a false report, the bearing of reporting a loss of 220 piculs instead of 55 piculs upon the question of the number of pieces actually shipped at Timor, is not apparent to me. Moreover, proof that all the pieces found on board were tallied into lighters and thence full to consignees, does not delivered in establish that all the goods shipped at But if Timor had been tallied and delivered. it had beau proved that plaintiff«' servants were on board from 5 p.m. to 11 p.m. on the 20th October when the sandalwood was being dis- charged into the Company's lighters, such evidenc, coupled with the evidence of fraud practised on the consignees after delivery, would have surported a contention not sup- ported by the evidence as it stands, that those servanta were privy to, if not the actual authors of the removal of the missing pieces, the value of which is now being sad for; but whether this would bave discharged the ship owners from their liability to deliver the hole amount proved to have been shipped is another question. There will be judgment for with costs. I certify for the plaintiffs counsel.
Wednesday, 29 h March.
IN ORIGINAL JURISDICTION.
BEFORE SIR H. S. BERKELEY (CHIEF JUSTICE).
WING CHONG FAT FIRM V. KWONG TAK
WING FIRM.
The hearing of this issue as to whether Wong Sun Nam was a partner in the Kwong Tak Wing firm was concluded. Mr. H. E. Pollock, K.C., instructed by Mr. H. G. C. Bailey (of Messrs. Johnson, Stokes and Master), appeared for the plaintiffs, and Mr. H. G. Calthrop, instructed by Mr G. Hastings (of Mr. John Hastings' office) for the defendant.
His Lordship in giving judgment said that in his opinion the defendant was a partner in the Kwong Tak Wing firm, and be considered the evidence was conclusive on that point. The witnesses called on behalf of the plaintiffs gave evidence which, if believed, established their position. He saw no rason to disore lit the evidence of the managing partner and the other man, called from the plaintiff firm, who support- ed his evidence. It was true that the managing partner in his affidavit showed some uncertainty as to time, but he was only speaking approximately. One knew from one's own ex- perience that a man speaking from memory
L1
ight remember a fact and yet might be unable
to fix the time at which that fact occurred even approximately. As regards another comment, though Tang in his affidavit did not mention the fact of Cheng being present at the time when the peple from the Kwong Tak Wing came around to the Wing Chong Fat firm and
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interviewed Tang, he did not think that there was much weight in that comment in view of the fact that Tang was merely mentioning what was said by people of the Kwong Tak Wing firm. They had it that not only did the defendant hold himself out as a partner; but also the admitted head of the firm, Wong Shing Tak, said the defendant was a partner. In his
two witnesses, because he had the evidence of two other witnesses on behalf of the plaintiffs who were independent. In the first place there was the broker who had dealt for years with the defendant firm. The broker stated that the defendant acted and dealt as if he were a partner. Therefore the evidence of the two men from the plaintiff firm was borne out by the fact that the defendant did act as a partner. Then again there was the evidence of the contractor employed by the defendant on a large building contract. That man produced written evidence to show that the defendant paid for the houses partly by orders for rice debited to The defendant's the Kwong Tak Wing firm. explanation of that was that his uncle had a high opinion of him and did not object. That explanation seemed to him very unsatisfactory. This evidence of the contractor showed that the defendant did not as if he had authority in the Kwong Tak Wing firm. The defendant and his witnesses were no doubt persons who ought to know whether the defendant was a partner, but he did not think they were speaking the truth. He held, therefore, that the defendant was a partner in the Kwong Tak Wing firm st the time cause of action arose.
Judgment was given for the plaintiffs on the issues of actions 85 and 86 with costs.
Mr. Polloc applied under Section 386 of the code for leave to isane immediate execution against the defendant, Wong Sun Nam, and Mr. Calthrop n't objecting, leave to issue im- mediate execution in both actions was granted,
IN SUMMARy JurisdictION.
BEFORE MR. T. SERCOMBE SMITH (PUISNR JUDGE).
Monte Ichiro otherwise Tokutaro Nakagawa (a Japanese) sned Yasaburo Nakagawa (a Japa- nese) for $123, due on a promissory note dated 24th October 1903 made by the defendant and one Fuku Ohshima. The principal was $100 which with interest, at the rate of fire per cant from the 24th October to 10th Maroh, made $123. Mr. C E. H. Beavis (of Messrs. Wilkin- son & Grist) appeared for the plaintiff, and Mr. Almada e Castro for the defendant.
- Mr. Almada e Castro gave notice of a special defence, on the ground of the debt being a gambling transaction.
His Honour-A special defence? Mr. Almada e Castro-Yes, on account of The debt was a gambling traffic in women. debt, and a girl was given as security. The girl was subsequently released when this pro- missory note was made.
Cross-examined, the plaintiff said he was under a banishment warrant. He was to have been banished that morning but had extension to wind up been granted an
He did not know that he his affairs. was being deported for carrying on a traffic in Women. He knew a girl named Hatsu Harrata, but denied that he held her as security for a gambling debt owing to him by Ohshima. His olaim was on account of money lent. He did not hold Hatsu Harrata as a pledge.
His Honour-It cannot be done in this Colony, and would be no security as it is contrary to the law.
Mr. Castro. It was done though, because the girl was handed over.
The defendant gave evidence that he had been a cook in a Japanese hotel. The plaintiff was a onstant visitor and gambled there. Ohshimad lost to the plaintiff about $109. The girl was given as security. Defendaut gave the pro- missory note to secure the release of this woman, and he sent her to Japan.
O Wakisa'a Yei, a Japanese woman who keeps an eating house, bore out the defendant's evidence. She thought the use the plaintiff would have made of the girl would have been to sell her as a prostitute.
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