April 13, 1908.)
SUPREME COURT.
Friday, 3rd April.
IN SUMMARY JURISDICTION.
BEFOEN ME. H. H. J. GUMPERTZ (ACTING PUISNE JUTGE)..
CONNAUGHT ROTEL CLAIM. The Conninght Hotel brought an action to recover $152.75 from E. 8. Horsley. Mr. 8. Dickson, from the office of Mr. R. A. Harding, aoted for plaintiffs, while defendant did not appear.
The manager of the hotel stated that defen- dant owed his board and lodgings at the hotel but from the total amount due he had deducted the salary due to him. Defenda t bad expressed bis inability to pay and witness employed him as runcer for the hotel. Instead of acting as runner he told the people that the hotel was no good.
Judgment for plaintiff with costs.
Wednesday, 8th April,
IN ORIGINAL JURISDICTION.
BEFORE THE CHIEF JUSTICE (8IE FRANCIS PIGGOTT).
THE INTERPRETATION OF A CHARTER PARTY.
The Man Cheong Yaen Firm claimed from the Fukusei Company 527 bags of rice belong. ing to the plaintiff in the possession of defend- ants or $5176.94 the value thereof and $500 damages for detention thereof.
The statement of claim stated that plaiutiffs are merchants carrying on business at 159 Wing Lok Street and defendants are merchants and agents of the owners of the Japanese steam- ship "Koun Maru" and carry on business at 3 Queen's Road Central. By a charter party dated 2nd Mareb, 1907, made between the plaintiffs and defendants as agents of the owners the plaintiffs jobartered the said steamship for a voyage from Saigon to Hongkong to carry a full and complete cargo of rice and/or other lawful merchandise. By clause 17 of the said charter party the freight payable upon a mixed cargo was 24 cents per picul upon 45,000 piculs, being the estimated capacity of the said steamship. The plaintiffs loaded the steamship with a full and plete mixed cargo of lawful merchandise consisting of white rice, cargo flour, white flour, and dried fish of a total weight of 41,142 picals. On or before the 27th April, 1907, the plaintiffs paid defendants $10,8.0 in res pect of this cargo, at the rate of 24 cents per picul on 45,000 picals, but the defendants wrongfully refused to deliver to the plaintiffs on their demand 527 bags of white rice, the pro- perty of the plaintiffs and part of the said cargo and had since detained and wrongfully con- verted the same to their own use.
com.
OHÍNA OVERLAND TRADE REPORT.
His Honour-You pay as if it was a full cargo ?
Mr. Slade They make that point.
Mr. Pollock-No no. We interpret it in the same way. The point is the mixed cargo.. It is reduced to one point.
Defendants replied that plaintiffs did not load the steamship with either a full or com. plete cargo or with a mixed cargo. The cargo which was loaded upon the steamship weighed 41,158,10 piouls out of a total capacity of the ship of 45,000 piculs. The cargo was not a mixed cargo, and defendante justified the detention of the bags of rice under the oharte party which gave the master of the ship a lien on the cargo for freight, dead freight and demurrage. They had not converted them to their own use and were willing to return them to the plaintiffs on the payment of $1404.49 for additional freight due by the plaintiffs and incurred by the defendants in connection therewith.
Mr. Blade There is no question of the am uut between us.
Mr. M. W. Slade, instructed by Mr. A. G. Jackson, of Messrs. Johnson, Stokes and Master, appeared for the plaintiffs, and defend ants were represented by the Hon. Mr. H. E. Pollook, K.C., instructed by Mr. C. 1. Beavis.
Mr. Pollock-I don't think so. We will take it there was a full and complete cargo,
Mr. Elades to the figures they are all agreed. We have paid one way or another the full amount.
respondence.
Mr. Pollock-It has been agreed to in cor-
paid the defendants the full amount we owe.
Mr. Slade-If it was a mixed cargo we have it was not a mixed exrgo then we ought to pay If
the amount claimed.
|
Evidence was afterwards called on behalf of the plaintiffs' case, and the oase adjourned.
Mr. Slade, in opening, said there appeared to be in this case only two questions in dispute. One was whether or not a cargo consisting of rice, rice flour, and salt fish was a mixed cargo within the meaning of the charter party entered into between the parties for the conveyance of a cargo of broken rice, rice flour, and other lawful merchandise from Eaigon to Hongkong. The second question seemed to be whether or not there was a full and complete cargo.
IN SUMMARY JURISDICTION.
BEFORE HIS HONOUR ME. H. B, J. GOMPRETZ (ACTING PUISNE Judge).
NEWSPAPER DIFFICULTIES.
His Honour gave his reserved decision in the action by the Si Wai Kong Pu firm, who are the proprietors of a Chinese newspaper, against the Chong Long Arm of prioters for $1,000 for loss caused by breach of contract in printing their paper. The Chong Seng firm counterclaimed for $173,17, being the balance due for printing done. Mr. P. W. Goldring, of Messrs Goldring Barlow and Morrell, acted for the plaintiffs, and Mr. Jackson, from the office of Messrs, Johnson. Stokes and Master, appeared for the defendants. His Honour said that it seemed the defend- auts were very anxious to get rid of the contract and it was amitted on their behalf that the plaintiffs would not release them unless they paid damages. He considered the contract was wrongfully broken and that plaintiffs were entitled to damages. He gave judgment for plaintiffs with costs and left the question of the amount of damages to be settled by the Registrar.
WHERE WERE THE PROFITS? Wong Chenk Ng, otherwise Wong Fui sued Tam Ching Wa and Ng Yik Fat, contractors, for $435, being his share of the profits made in the business of the company.
Thursday, 9th April.
In Original JURISDICTION.
BEFORE THE CHIEF JUSTICE
(SIR FRANC:8 Pro TT).
CLAIM O. A BILL OF EXCHANGE,
Judgment was given in the motion brought by Leung Sin-Hoy, trading as the Chin Foong Hoi Ke firm of Singapore, against the Cheong Wing Arm of 72, Bonham Strand, binkers, Wong Long-him of the same address, the Wing Tang Sun firm of 207, Des Vœux Road Central merchants, the Wing Cheong firm of |129, Das Voeux Road West, and Lyn-Nam, merolisat, as the drawers of a bill of exchange for $10,030 dated January 7th, 1907, and drawn by the defendants upon the plaintiffs, and payable to the order of the Netherlands Indies Commercial Bank 21 days after sight, payment whereof was made by the plaintiff on the 8th February 1907 to the Netberlants Indies Commercial Bank. Hou, Mr. H. E. Pollook, K.C., instruc- ted by Mr. R. F. C. Master (of Messrs. Johnson, Stokes and Master) appeared for the plaintiffs, and Mr. M. W. slade, instructed by Mr. P. S denham Dixon (of Mr. R. A. Harding's office) for the defendants.
His Lordship said: -The only facts to which I will refer in this case are very simple. The Chin Foong Hoy Kee of Singapore and the Wing Cheong firm of Hongkong were in the habit of drawing upon one another for purposes of their business and remitting the money to meet their bills and the present action is brought upon the last of these series which was drawn by the Wing Cheong upon the Chin Foong Hoy Kee for $10,000 to the order of the Netherlands Indies Commercial Bank. The bill was discounted at the Hongkong ranch and was guaranteed in so far as the Bank was concerned by the and
Wing Tang Sua the Cheong Wing firm; the signa tures of these two firms appear on
the bill as drawers by the side of the Wing Cheong and their character as guarantors in so far as the Bank is concerned is clearly established by the books of the bank. A letter was written by Li Lan Nam, the manager of the Wing Cheong, on 7th January, 1907, to the plaintif informing him that the bill had been drawn which contained this sentence: "I have this day negotiated a twenty one days' bill for $10,000 at the Fan Ta Bink. It is guaranteed by the two firms Wing Tang Sun sud Cheong Wing of this port and you, sir, will certainly not need to be anxiou}, On its arrival please accept the bill and when dus please pay so- cordingly and I shall be obliged." The bill was accepted by the plaintiff and though it was noted for non-payment 7th February, it was in fact paid by him. He now'sued to recover the amount from the drawer and his two gusrautors. The drawer is bankrupt and has absconded. His Hooour-Have any accounts been taken? The point of law can bз simply stated, Can the Mr. Grist-We say no, my Lord, but I under-acceptor recover the amount he has paid on the.
my friend says
that they have been taken. bill from persons whose names appear on the Mr. Smith-I propose to say, my Lord, that bill as the Wing Tung and the Wing Cheong, the defendant has told the plaintiff what his although they were in fact pat on the bill share in the business was and that he did not merely as guarantors to the bank, for the have the money to pay him.
purpose of negotiation? These two defendants are clearly accommodation parties w thin section 25 (1) of the Bankruptcy Aot because they have left their names as drawers without receiving value therefore, and I think the plaintiff accepted the bill without value and therefore that it is an
Mr. Crowther Smith appeared for the plaintiff and Mr. E. J. Grist for the second defendant.
Mr. Grist-I understand the second defendant has not been served, and I take the point that the second defendant cannot be sued in the form of the present writ I asked for particulars and they have been supplied. I take it that the only action that lies is for a statement of accounts.
stand
His Honour-You say that the money has reached his hands?
Mr. Smith-I think after your Lordship has heard the evidence you will come to that oon- clusion,
Mr. Grist-If it discloses any right of action it is an action against both people. Both people must be brought into court. There were about fifteen partners in this concern and we say the money has never been in my client's hands. I contend the defendant cannot be sued in the present form of the writ
His Honour (to Mr. Smith) Do you wish to proceed against the one defendant served ?
Mr. Smith-That is what. I propose to do. His Hoooar-And you will prove that he admitted having this money in bis hands for the plaintiff ?
Mr. Smith-Yes. He said he had the money but could not pay just now or words to that effect.
accommodation bill. The possibility of value arising out of the continued system of dealing between the partie is, I think, negatived by the fact that all the transactions were independent and in no sense to be described as mutual deal. inge; and the suggestion that the value might be found in the first transactions of this special series of bills is too problematical to be accepted. I take the following from Chalmers For merly it was held at law that while a party's name appeared on a bill as principal he could not be held to be a surety, for that was a contradiction of the written instrument. This defence was afterwards modified in cases where.
it could be known there was a contemp oranous agreement that be would ba His Honour-Then you want the writ amend-treated as a surety and now it is clearly ed against this man?
Mr. Smith-Yes, my Lord. Evidence was called, and the case adjourned.
established that the rights of the surety are so independently of the form of the instrument” But this emphasises the rights of the surety';
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