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eventually signed by Mr. Rennie on the one part, and by Mr. Arndt on the other.
Mr. MacNeil asked their lordships whether they would consent to hear the two counsel on each side in the summing up. In that event one man could deal with technical questions, and the other with other points.
The Chief Justice intimated that the Court had no objection so long as the same ground was not covered twice.
Shortly after Mr. MacNeil had proceeded to open the defence the Court rose with the object of paying a visit to the Ice Works.
The hearing of the case will be resumed this morning.
Wednesday, 11th August.
The Chief Justice, before Mr. MacNeil con- tinued his address, referred to the visit of the Court to the Ice Works on the previous day. He said it seemed to him that it would be very convenient, and it might save discussion, if both parties were agreed as to what they observed, because one side might have observed certain things, the other side different things, and the Court different things again. In these circumstances he thought there should be some
agreement.
Mr. Slade was willing to do anything to assist their Lordships, but thought the thing was what their Lordships observed.
The Chief Justice-We shall correct it afterwards, but I would sooner see what you want us to include, because there were two or
three things I observed which perhaps the Puisne Judge did not, and perhaps you did not.
Mr. Slade-What form would it take?
THE HONGKONG WEEKLY PRESS AND
with regard to different systems of ice making, and some considerable time before the contract with Arnhold, Karberg and Co. he had been inquiring from the defendant firm as to different systems of ice making. It appeared also, from correspondence recently produced, that Mr. Rennie was not only in communication with Arnhold, Karberg and Co. but also with other firms regarding ice plants. When r. Rennie signed the contract with Messrs. Jardine, Matheson and Co. he either deliberately told them that he would do some thing which he thought he could not do, or he told them with his eyes open that he would do a thing he could do.
Mr. MacNeil, after dealing with the corres- pondence which passed between the parties, referred to the formal agreement which Mr. Davidson personally presented for signature. He asked their Lordships to note that the grossment was taken round when Mr. Arndt
was away.
Mr. Slade That is a suggestion of fraud! Sir Henry Berkeley said the suggestion was that advantage was taken of Mr. Arndt's absence to try to get the agreement signed. If that was not so, the point raised was irrelevant.
Mr. MacNeil said the suggestion was that the agreement was submitted, not for approval, but for signature.
Sir Henry Berkeley drew the Court's attention to the letter sent by plaintiff's solicitors on the same day in which they asked that the
engrossment should be sent to Mr. Arndt for approval and signature. The inference of fraud was unwarranted.
The Chief Justice did not understand that that was the inference.
The Chief Justice said he meant certain facts, as on the cutting down the centre of a block of the Milling Company's ice certain things were observed, such as, that the needles did not come out in a bunch as they appeared to at first, but that there were four main groups. There were what he called the major needles, and in between there were minor needles. That was an import-berg and Co. to get it signed when Mr. Arudt.
ant fact.
Mr. Slade asked if each party would state the facts thay observed independently.
The Chief Justice thought so, as there were about only half a dozen facts.
The Puisne Judge said it seemed to him that it would be a good thing if both sides stated shortly what inferences they had drawn.
Mr. MacNeil suggested that they should be handed in writing.
The Chief Justice said there were four main groups of needles from the centre to the core. Then a cloudy effect was given to the Ice Company's ice owing to air streaks. These air streaks went right through the blocks.
The Chief Justice said the matter had an important bearing on the question put to Mr. Haxton as to the relative brilliancy of the two ices.
Mr. Slade said he would make another examination, as the patches of cloud he saw next the plate certainly did not extend through the block.
as it
Mr. MacNeil, continuing his address, said there was no evidence on which their Lordship's could fairly act as to the kind of ice being made in the year 1907 by the Hongkong Ice Co., although Mr. Haxton said he took up the existing system and carried it ou had been carried on before. He suggested that the warranty as entered into between Messrs. Jardine, Matheson and Co. and Mr. Rennie was not that kind of serious thing which the warranty in this case was alleged to be. This warranty was treated as an absolutely definite and binding agreement to supply ice the same in certain respects as that of the Hongkong Ice Co., whereas the warranty between Mr. Lennie and the Ice Company was of no such serious kind. He further suggested that when Messrs. Keswick and Rennie entered into it they did not care whether it was carried out or not. The refusal of Messrs. Jardine, Matheson and Co. to allow air. Rennie to inspect the kind of ice they made showed that they did not particularly care whether Mr. Rennie was able to perform his part of the agreement. For a very considerable time before he entered into the contract with Messrs. Arnhold, Karberg and Co., Mr. Rennie had been considering the possibility of running an ice plant along with his mill. As far back as 1905 he had been making inquiries
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Sir Henry Berkeley said that was what the words implied, and it was a serious imputation. The suggestion his friend was making, whether intentional or not, was that Mr. Davidson sent or took the agreement to Messrs. Arnhold, Kar-
the only one who knew its terms, was absent.
The Court did not think that was .r. Mac- Neil's suggestion.
Mr. MacNeil, proceeding, stated that accord- ing to his statement of facts, Messrs. Arnhold, Karberg and Co. sold the plant to Mr. Rounie, who knew it to be a can ice plant, and who had previously arranged with Messrs. Jardine, Matheson and Company to supply them with ice equal in clearness, purity and quality to the ice of the Hongkong Ice Co. His clients entered into the contract in the belief that it contained no more than what was already contained in an implied contract in the correspondence which existed between them and Mr. Rennie. Further, his clients were not fairly treated with regard to the matter of the erection of their plant so as to put it in a condition of being able to carry out the satisfactory production of ice required. They were hampered in the completion and erection, and therefore found difficulty and delay in reaching the point at which they could begin to test the powers of the plant with view to finally turning it over in complete working order. He further stated that the inspection was an inspection made at 妳 time when the plant had not been taken over in complete working order by the plain- tiffs, and therefore was inconclusive for the purposes of showing any breach of warranty on the part of the defendant. He would further state as a fact that defendants were prevented, by the wrongful action of the plaintiffs, from even carrying out the week's test run as provided for by the contract. Defendants felt like some animal that had been trapped, and not fairly They were in a position they felt they ought not to be in. They believed they had honestly carried out the contract they had honestly made. and believed
this present claim was an attempt to insist on their doing something they were
never meant to do, and which the plaintiffs never intended them to do. Mr. Rennie, in giving a warranty to Messrs. Jardine.
atheson and Co.. must have known what
he was about, and he had done such things with regard to the defendants that if loss fell it should be borne by Mr. Rennie, and not by the defendants. The conduct of Mr. Rennie stop- ped him from saying defendants were responsible for any loss which might have arisen through defendants acting as he allowed them to act.
' [August 16, 1909.
Reverting to the ice, Mr. MacNeil con- tended that the word purity did not mean transparency. The Milling Company's ice was, what he should call sparkling, as it was brilliantly crystallised. Clearness did not mean muddy or dull, but the poiut was, what clearness meant. He could not say the ice of the Ice Company was not transparent, neither could he say that when one asked for transparent ice he asked for clear ice. It seemed to him more likely that what was wanted was that quality of brilliancy which the Milling Company's ice had.
The Chief Justice-It struck me that if a lady wanted an ornamental ice block for her table, and had one of the Milling Company's blocks, all her guests would say how pretty it was.
Mr. MacNeil I don't think I need say The Milling Company's product is any more.
It is brilliant ice, and is therefore clear. more brilliant than the ice of the Ice Company. The Chief Justice-While on that point, what does quality cover? It might cover the dimensions of the block.
Mr. MacNeil--I don't think the word quality was intended to cover solidity. Messrs. Jardine, Matheson and Co. wanted clearness and purity, and Mr. Rennie said he would give it. When he drew up the agreement he gave them clear- ness, purity and quality.
His Lordship asked whether quality in the eyes of Messrs. Jardine, Matheson and Co. did not mean absolutely identical ice blocks, etc.
Mr. MacNeil said he thought all along that Jardines were going to take the ice if it was marketable, and it was an irresistible conclusion to his mind that the fact the Milling Company
Was
no longer a going concern must have weighed with them in their ten years' contract. Mr. MacNeil had not concluded his address when the Court rose.
Thursday, 12th August. When the Court sat the Chief Justice
announced that they would be unable to con- tinue on Friday or Saturday.
Mr. MacNeil said he was instructed to ask for at least half a day, either Friday afternoon or Saturday morning, for the convenience of the clients.
The Chief Justice-It is not possible. We have such an accumulation of work both in summary jurisdiction and in chambers.
Mr. MacNeil thought the case would finish early next week.
The Chief Justice thought the hearing would take two days more, possibly two and a half. Ho thought it would have to go over to Monday, as they had another case on hand to consider. His Lordship wished to ask Mr. MacNeil about the point he argued yesterday with regard to the interpretation of the word quality. He wished to know whether Counsel intended to raise the point of latent ambiguity.
Mr. MacNeil said the word quality was in the contract.
The Chief Justice said Counsel had indicated
that there was an ambiguity with regard to the word quality, and therefore it seemed to him that the argument tended rather to introduce the law as to latent ambiguity.
Mr. MacNeil said that came in necessarily. The contract contained the words clearness and quality, and quality might mean anything
besides clearness.
The Puisne Judge stated that on the previous day Mr. MacNeil had raised a point as to Mr. Rennie's knowledge. It seemed to him that in the absence of fraud that could not be admissible.
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Mr. acNeil said he had raised no question, of fraud, but he had stated that Mr. Rennie well knew at the time the nature
of the plant he was buying.
The Puisne Judge-Unless you can bring in the principle of latent ambiguity it seems to
me it would not be udmissible.
Mr. MacNeil-The contract was for can ice. The Puisne Judge- If you had pleaded fraud, the knowledge of Mr. Rennie probably would have been material,
Mr. MacNeil Mr. Rennie bought Borsig's plant with a specification as to its being a can plant Anything turning on Mr. Rennie know- ing that the plant he was buying had cans in it is surely relevant.
The Chief Justice - It seems to me that the
question of latent ambiguity is a question of fact, and the Court has to say whether this
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