6
Tuesday, July 2nd.
IN ORIGINAL JURISDICTION.
BEFORE SIR FRANCIS PIGGott (Chief
JUSTICE).
EXTENDING AN INSURANCE COMPANY'S
BUSINESS.
The Hon. Mr. H. E. Pollock, K.C., made an application to His Lordship the Chief Justice this morning with respect to the Man On Insurance Company.
been
Mr. Pollock said the application was for the confirmation by the Court of cartais resolutions which had been passed with a view to extending the Company's business. The objects of the Company, as set out in the Marine petition, included the business of a insurance Company. Resolutions bad passed, and confirmed, extending the powers of the company to include fire as well as marine insurance, and also giving the Man On Com- pany power to re insure any risk, either in whole or in part. That would relate to either class of insurance; it was frequent for insurance companies to re-insure.
+
His Lordship-The company has power to re-insure marine; it will be limited to fire, so as not to include life.
Mr. Pollock-It will be limited to the matters already mentioned, fire and marine.
His Lordship-They desire to unite two entirely different companies such as fire and marine, though there is nu reason why they should not be united, if the conditions of the business were satisfactory-you will remember the case of the Lion in England where they combined fire and life. The fire department broke the company up and the life people did not get their money. I am speaking from memory and my impression is that the opinion in England required two separate capitals to be divided if two separate businesses combined.
were
Mr. Pollock referred to a special case in which wide extension was allowed. The Alliance Marine Insurance Company applied for extension to life, fire and accident. There was evidence that such businesses were commonly transacted by marine insurance companies, and similar affidavits had been filed in this case, His Lordship-I think I ought to be satisfied with the capital. It seems to me that the capital is very small in this case. It is only 81,000,000, and only half has been paid up. One of the conditions undoubtedly would be to call up the outstanding capital. I could not possibly do it otherwise; the responsibility is too great, A judge has no training in these matters, and the Legislature has thrown upon him a very great responsibility. I must be satisfied with the capital, and cannot treat these things as merely formal.
An adjournment until July 16th was granted.
AN AGBITRATION CASE.
the
Judgment was delivered in the matter of the arbitration between the executrix an executors of Choy Chau deceased and Tsan King, contractor.
Mr. M. W Slade, instructed by Mr. Holborow of Messrs. Deacon, Looker aud Deacon, appeared for the plaintiffs, and Sir Henry Berkeley, K.C., instructed by Mr. Hursthouse, appeared for the defendant.
THE HONGKong weekly PRESS AND
t
The
[July 8, 1907. damages likely to be suffered (sao Com. missioners of Works v. Hill). For I cannot see how such an estimate osn vary in respect of two consecutive months. They are a pen- alty: and, therefore, I think the law is that the plaintiff may either take the penalty or recover the damages he has in fact suffered. answer to the fourth question is, therefore, that damages may be recovered under the Chinese agreement for delay in not completing the contract by April 15th, 1904. The answer to the fifth question is in the affirmative, though I feel considerable doubt as to the view of the substitution of the Chinese agreement. The auswer to the sixth question is in the affirmative with regard to both contracts taken together.
IN APPELLATE JURISDICTION.
BEFORE THE FULL COURT. CHAN WO AND OTH#28 v. CHAN YAM.
Their Lordships delivered judgment in this action in which the plaintiffs were the appell · auts, and the defendant respondent, the appeal being against a judgment of His Honour the Paisne Judgə.
Sir Henry Berkeley, K.C., and Hon. Mr. H. E. Pollock, K.C., instructed by Mr. C. D. Wilkinson (of Messrs. Wilkinson and Grist), appeared for the appellants, and Mr. M. W. Slide, instructed by Mr. G. K. Hall Bruttou (of Messrs. Brutton and Hett), represented the d-fendant.
seems to differ materially from those dealt with ; in the cases cited in Hudson which are for the most part certificates, the issue of which may or may not be conditions precedent to payment. In the first place I think that the statement made by the arbitrator in paragraph 10 of the special case to the effect that he is satisfied upon the evidence which has been adduced before him in the arbitration proceedings that there has been unreasonable delay on the part of the contractor in carrying out he works and that damage has been sustained by the executors fo the principal by reason of such delay, is not the certificate contemplated by clause 18. In the first place that certificate is to be givan by the engineer and although Mr. Dauby combines in himself the twofold capacity of engineer and arbitrator, and although further the Courts decline to relieve the contractor from any grievance which he thinks le may have owing to this, except in a very extreme case, because he has deliberately chosen to accept the contract subject to this con- dition, yet this cannot be pressed so far against the contractor ан to substitute merely Mr. Danby as the arbitrary judge of everything. So far as it is possible Mr. Danby, the arbitrator, must be kept distinct from Mr. Dan y, the engineer, and what the latter has to do cannot be done by the former, nor can the former do what the latter has left undone. Owing to the way in which clause 18 is drafted there is no difficulty in this instance in keeping Mr. Danby's two functions quite distinct. He is not required to certify that there has been unreasonable delay in completing the work: bat that the work could reasonably have been com- pleted by the date of completion, original or substituted. It seems clear to me that, the works not being completed on the given date, the duty of the engineer was ther and there to certify that they could reasonably have been completed at that date. What Mr. Danby has done is as arbitrator, after having been called on to express an opinion as to the unreasonableness of the delay. I am of opinion that he had no right to do this. Further there is no substituted date | pointed this out to the learned counsel and within the meaning of the contract, none having afterwards the ground for appeal was put dowa been fixed by the engineer. Therefore, so far as to the fact that the debts could not have contract No. 496 is concerned, the certificate been excluded. I find it difficult to keep should have been given within a reasonable time off the question of probabilities, because after January 25, 1902, I, therefore, answer the they figured so largely in argument. first question in the affirmative, subject to the to me that the probabilities are that if the vendor interpretation I have just given of the meaning wished to exclude special debts he would have of substituted date which affects the meaning inserted paragraphs to that effect in the agree of the last words of the question, "or any substiment, and if he meant to include there was no tated date. There is howevera further question as necessity for such paragraphs. He did insert the clause which shows very clearly what was in his mind. The accountant's evidence agress with this. As to the form of agreement when drawn up, that shows that Chan Yam certainly had it in his mind to exclude special debts. There is also the probability that if the par- chaser had intended them to be excluded he
reasons
to contract No. 476. So far 83 Con- tract No. 476 is concerned I answer th. question in the negative, for the given above, and the third question must also be answered in the negative. The fourth question has no reference to this c ntract, but the answer to the fifth question, so far as this
30
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answers
on
After the appellants had concluded their argument the Chief Justice intimated that he did not wish to hear Mr, Slade (for respondent) and said: Now, this appeal was put to me in this way. The balance of probabilities did not incline as the learned Puisne Judge thought they did and the question put to us first was: Was it more likely that the debts were exclusive or inclusive? Unless the case can be put higher than this the appeal must fail, because it falls within the principle of doubt in the case just quoted, and not only fail, but I think, be dismissed.
I
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to
'It sJems
contract is concerned, is in the affirmative. But would have asked:-Why did you introduce this far as contracts Nos. 474, 475 and 476 sentenos? I admit that he might have
concerned, the
to questions forcibly effected his end by altering ex- two aud
theclusive to inclusive, if defendant agreed, answer
ULA involves but this lea B to another probability. It is more than improbable it seems to me that the vendor would have thrown in what was called a bad debt for no consideration. We
not know that it was strictly speaking bad debt, but only one very much in suspense. That there was no consideration for it is manifest from plaintiff's own evidence. His version of the case is that $250 was to be paid for signboards, eighty-five per cent for the Australian debts and the other debts at face value. It is impossible to give a face value these Wa Tai debts, therefore, the plaintiff says he was going to get them for nothing, which is highly improbable. The plaintiff's evidenc: applies the key to what was passing in his mind. I wanted to know what the legal expenses would be before 1 accepted and Chan Yam refused to tall me. IIe said that if they did not alter the draft of tue agreement from exclusive to inclusive they would have to pay him expenses. For the lite of me I cannot follow it. if the deb had been the debt and the consequent li ibilities. What include the purchase would have taken over
be really wanted was to get rid in some way_or other of his share of the liabilities. The
facts or
with a entirely prob⚫bilities
With a. defendants and in favour of exclusion. amount of regard to advertisɑmənɩs each ‘party was at
three must depand to question four, which the interpretation of the Chinese agreement of July 10th,
is 1903, which
set out in paragraph 9 of the special case. By this agreement the parties themselves substituted April 15th, 1934, as the date on which contract No. 476 was to be completed. I am of opinion in the first place that this agreement undoubt. edly nullified clause 18, so far as the liquidated damages are concerned and it must, therefore, nullify the clause so far as the engineer's car. tificate is concerned. he damages for failure to complete on April 15th, 1904, must be arrived at by interpreting this agreement. By it, if the shops are not handed over by April 15, 1904, Choy Chan will then require Tsang King to compensate to Choy Chan $3,000 for the first month of the building contractor's overtime and $6,000 for the second month. What the parties meant by this I have not the remo est idea. I must, however, en leavour to ascertain its legal effect. Does it mean £6,000 for the sec ind and subsequent months? Cleary not. Then are these two amounts, singly or collectively, a penalty or liqui lat d damages? To my mind the very faot of thare bing two different sams for the first and second months shows that they could not be treated a liqui | dated damages. They certainly are sub-
the genuine pre-estimate" of
His Lordship said: I am of opinion that although it was stipulated in clause 18 of the contract that time was especially to be consider ed as of the essence of both contracts, yet that time condition was departed from by the future provisions of the clause. These seem to me to have been based on the idea that the time specified for if completion was not to be of the essence of the contracts: for it was clearly in the contemplation of parties that the time specified for completion would not be complied with even in the case of there being a new date for completion substituted-such substituted date being fixed in writing by the engineer. In the event of the contracts not being completed on the original or substituted date there is condition precedent to the sight of the principal to the payment of liquidated damages: this condition precedent being the of a certificate in writing by the engineer the works coalt reasonably have been completed by the original or stituted dates. The certificate in this case
that
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