August 16, 1909.]
made at Shanghai or Singapore. He formed the opinion that can ice was not as good as plate ice from the samples he had seen on board, and from what he had read in books. He had read that sometimes with special appliances eau | ice had not a core. Otherwise it was not as clear as plate ice. Witness would not say that the Milling Company's ice, apart from core and needles, was not as clear as that of the Ice Co.
Assuming this ice to be as clear as yours, and assuming it has a rare, do you now consider yourself justified in saying that the jee is not as good as that of the Ice Company —I would say it was not as good.
Now. Mr. Haxton, you came to the giving of this advice to Messrs. Jardine. Matheson with this in your mind, viz.. that "Can ice generally has a core: this is going to he ean ice the only can ice I have seen not as clear as the ice of my company' was with that in your mind you gave that opin- ion that the ice would not be as good, is that not so Yes
was
and it
While the witness was explaining his method of conducting a test of the iers of the two companies the Puisne Judge drew 3 r. MacNeil's attention to his misunderstanding of an answer,
Mr. Slade That's what I whispa red to you.
Mr. MacNeil-His Lordship the Puisue Judge has put me straight, and I'd sooner take it from him than from you. Mr. Slade.
Mr. Slade-Very well. I was only trying to keep you straight, but it is a rather difficult job, I will give in future.
up
Witness explained his method of conducting a series of tests with two blocks of ice, one from
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CHINA CVERLAND TRADE REPORT.
Is the demand for ice larger or smaller than in 1908?-Larger.
In view of the increased demand I would like you to explain why, while you wanted ice last year, you don't want it this year?-We want it still.
And you're had already offered you the ice of another company? Yes, bat their price was too high.
Did they ask more than the Milling Co. ?- Yes,
In re-examination witness stated that he had made the ice tests three hours after taking the two different blocks out of the cold storage. For those three hours the ice was left in the open air.
The case stands part heard.
Tuesday, 10th August.
143
The Chief Justice-Here is a firm in Berlin which understand that their branch house in Hongkong is threatened with_proceedings, and they send them a report from Borsig.
Mr. Šlade-Aruhold, Karberg and Company in Berlin, and Arnhold, Karberg and Company in Hongkong are the same firm, and the report has been received by them. The report did not come into existence for the purpose of being used as evidence.
The Chief Justice announced that the Court thought the document Was not privileged.
Mr. Haxton was then recalled for re-examina- tion by Mr. Slale and gave evidence regarding a third test he made. The temperature of the ice of both companies was 18 degrees, and each piece, which weighed 8 lbs., was as similar as possible in shape. When the Milling Com. pany's block of ice had melted, there remained Mr. Slade said it transpired from the docu- each case the piece of ice used as
of the Ice Company's block 71⁄2 ounces. In ment, copies of which were supplied on the
a test was taken from as near the centre of a previous day that the fitter Beyer, on the 25th June, 1908-that was two days after the trial block as possible. The first test he made
- sent a report home to Mr. Borsig, the man-
was 7.9 per cent. in favour of the Ice facturer of the machine, and Mr. Borsig had
Company, the second 5.3, the third 5.85 sent copies of this report to Messrs. Arnhold, ice to be supplied by the Milling to the Ice and the mean 6.35 per cent. The quantity of Karberg and Co. The only claim for protection Company was 6,300 tons per annum, the per- made in the affidavit was professional privilege.centage of loss on this at 6.35 being 400 tons.
Mr. MacNeil--That is not sa, my Lords. Mr. Slade said the right grounds for objection were either privileged communication or materials for evidence,
Mr. Mac Voil-Materials for evidence is the ground we are objecting on.
Mr Slade said the only possible ground on each company. The result of the test was in which this report could be privileged was that favour of the Ice Company, for when the Mil- it was written for the purpose of this case. ling Company's block of 15 lbs. had melted. Their Lordships knew well
that reports there was still remaining 1 lb. 3oz. of the Ice being made in the ordinary course of business Company's block. A second test made with a 71b. | were not privileged. This report was not made block of the Ice Co. anda 73 lb. block of the Mil-to Messrs. Arnhold, Karberg and Co.. but was ling Co. ended in the latter melting when there sent home to Mr. Borsig just at the time when
were two ounces of the block of the Ice Co. left. Mr. MacNeil stated that according to the
this trouble arose.
The Chief Justice-Yon say it is in Arnhold, Karberg's possession because air. Borsig sent them a copy ?
most accurate tests the Milling Co's ice melted at the beginning slower than that of the Ice Co., but quicker at the end. (To witness)-You say r: Slade That is all. It contains materials that your ice, size for size, weighs a little heavier, 'on which I could cross-examine the defendants, now you have just said with regard to the but they object to produce it and have not even second experiment that the ice was of the same, put it before your Lordships. size and shape, nevertheless the Milling Mr. MacNeil--That is not fair. Company's block was heavier. May I say that the Ice Company's ice is not always heavier :- It is always heavier.
The Puisue Judge-You did say your ice, size for size, was heavier ?—Yes.
How do you explain it -I think I must have: been mistaken in one of the experiments.
Mr. MacNeil Do you know how Messrs. Jardine, Matheson and Co. came to enter into this contract - Yes.
Tell me They wanted a larger supply of, ice; in fact, had ordered a machine from Eng- land before this contract was entered into When the proposal was made by the Milling Co. the contract for a new machine at home was enu- celled and arrangements were made with the Milling ompany.
We prom-
$8,960. In the machinery supplied at Junk The loss at a cent per pound on this would be
Bay there was no special apparatus for removing the core from can ice.
Mr. Slade said he did not wish to go into the question of machinery at this point unless driven to it. He had not dealt with the ques- tion of process or the question of machinery at all because it seemed to him immaterial. This was purely and simply a question of saving time.
Mr. MacNeil said he was quite agreeable to that. They said in the pleadings that given considerable uppportunity their plant would have made ics quite up to the warranty. The plant was a proper plant for producing proper ice.
'The Court decided that questions of machin ery should be postponed until the question arose. Mr. MacNeil suggested that the Court should ascertain from Mr. Haxton his meaning when he said there was no special apparatus for extracting a core.
sed your Lordships to produce all Borsig's whether there is an efficient apparatus at the The Chief Justice (to witness)-Can you say correspondence.
Milling Co. for getting air out of the water in which the ice is made I don't think so.
: The Chief Justice - We did not
document.
see the
Mr. Slade This letter is as much part of Borsig's correspondence as any other part, and they refuse to produce it.
2. MacNeil said among the documents for which privilege was claimed were documents which were obtained in order to afford materials for evidence. Counsel quoted authorities in
sup- port of this contention and said it seemed to him! perfectly clear that their Lordships must hold the document in question to be privileged inasmuch as the matter was to be placed in the hands of plaintiff's solicitor for the action.
r. Slade said this was not an accurate state- ment, as there was no threat of action at that
If you had not arranged with the Milling Company that Company would have been ¦ time. competitors? Quite likely.
As a matter of fact, if the Milling (ompany had sold ice witlicut any arrangement with you, it would necessarily have an effect upon the Ice Co. By the amount they sold.
Mr. MacNeil said the statement was that his client should be held responsible. This report was not made to them, otherwise it should be disclosed. Mr. Feyer made the report to Mr. Borsig, and essrs. Arnhold. Karberg and Com- There was the possibility that the Millingpany's Berlin house received the report from Co., producing ice on their own account, might Mr. Borsig. There could not be the smallest have been alle to undersell the Ice Co. at the doubt that the document was material for price they were then selling? They migh
As a matter of fact there is a competitor in the market just now is there not ? Yes.
That is the Oriental Brewery? - Yes. at what price were you selling ice at the end of 1907 14 cents per pound.
What is the lowest price ice touched this year-Half a cent.
jevidence and nothing else.
Mr. Slade did not know whether his Hriend's statement that the document was obtained by the Berlin house for the pur- pose of being submitted, was founded ou instruc- tions, but it was apparently entirely opposed to the wording of the letter of August 12th in which the report was first received. It was, he Will you agree with me when I say that the submitted, perfectly clear from that that it was reducing of the rice was due to the competition | voluntarily sent by Mr. Borsig to excuse him- of the Oriental Brewery! They were the means of reducing it.
Am I right in saying that the ice of another company has been offered you since Yes, and we refused to buy.
Are you drawing in your herns, so to speak, with regard to trying to get the ice business, or is the demand smaller than it was? I'd
rather not answer that.
self from possible claims on the part of Arnhold, Karberg & Co. against him, and not for in any way assisting Arnhold, Karberg & Co. in the way of evidence.
The thief Justice-He mentions difficulties with Beyer.
Mr. Slade-Because difficulties were raised with Beyer, that does not grecessarily make everything privileged.
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Have you seen the plant ?-Yes.
And you it know all about it ?--Yes, and it would be necessary to superadd some special apparatus which was not there to eliminate air
so as to remove a core. ·
Does the practical consume supply a large part of the trade? Only a small part.
Hare you customers who buy in blocks?— Our shipping customers buy by the ton.
any
With regard to tests, was there substantial difference in the quality of the
ice No.
Supposing you took a block of fifty pounds do you think the tests would be the same ?? Yes.
Mr. J. Leehan, who was formerly a fitter at Quarry Bay, said he was engaged by Mr. Rennie to take charge of the erection of the ice plant at Junk Bay. He took all his orders from Mr. Beyer with regard to the work. In the early part of June a trial, carried out by Mr. Beyer, was stopped by the breaking of a crane. There were three engineers there, who took eight- hour shifts, and during the 24 hours at a sub- sequent trial the machinery ran very well, there being only one stoppage of about two hours. Altogether the machinery ran between seven and eight days. The ice produced at the beginning of the trial was not so good as that produced later.
Mr. Davidson, solicitor and managing clerk to Messrs. astings and Hastings, deposed to drawing up the agreement for the purchase of the ice plant by plaintiffs from the defendants. The agreement was drawn up on the instruc- tions of Mr. George Hestings, and on October 15th was sent to the office of Messrs. A ruhold, Karberg and Co. with the object of getting Mr. Arndt's signature. When witness called he saw another gentleman who was acting manager during Mr. Arndt's absence in Canton. That gentleman read the document, but said he would rather not sign it. The agreement was
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