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164
SUPREME COURT.
Saturday, 14th August.
SUMMARY JURISDICTION.
BEFORE MR. GOMPERTZ (PUISNE JUDGE).
The hearing of the case in which the Shun Wo firm sued one Chu Ki as garnishee was continued.
Mr. Reader Harris represented the judgment creditors and Mr. Sydenham Dixon appeared for the garnishes.
The cross-examination of the garnishee was concluded and two other witnesses were examined, when Mr. Dixon stated that one witness, Man Chi Lee, who had been subpoenaed had failed to appear.
The case was thereupon further adjourned till Saturday next.
Monday, 16th August
IN ORIGINAL JURISDICTION.
BEFORE THE FULL Court.
HONGKONG MILLING COMPANY V. ARNHOLD, KARBERG & co.
The seventh day's session was reached yes- terday in the action in which the Hong kong Milling Company, of which Mr. H. Percy Smith is liquidator, claimed $100,000 from Arnhold, Karberg and Co. for damages, for alleged failure to supply an ice-making plant according to stated requirements. Sir Henry Berkeley, K.C., and Mr. M. W. Slade, instructed by Mr. John Hastings, appeared for plaintiffs, defendants being represented by Mr. MacNeill, from Shanghai, and Mr. G. C. Alabaster, instructed by Mr. H. W. Looker, of Messrs. Deacon, Looker and Deacon.
Mr. McNeill said he wished to mention a matter which happened on Saturday, and, Mr. Haxton being present, perhaps their Lordships would be glad to have his explanation. On Saturday he saw one of the Ice Company's carts, which as far as he could see was on its way delivering ice to consumers, and on the cart he noticed a block of ice with the triangular band which Mr. Haxton told them was always sawn off, Mr. Haxton was present.
The Chief Justice I see no objection to Mr. Haxton giving his explanation.
Mr. Harton said the engineer at the works
had orders to cut off the band, but occasionally a band got up to the depot. The bands were cut off before the ice was sold.
Mr. McNeill-Was the ice going to a ⚫ customer P-It was on an open cart.
Mr. Haxton-How many blocks were there ? Mr. McNeill-Six or seven.
Mr. Haxton-They might be going to one of the sub-depots. We have a Chinese sub-depot at West Point.
Mr. McNeill-This cart was going towards East Point. It was the only block which had
this band.
The Chief Justice-Probably the engineer forgot to cut it off.
Mr. Haxton-It might be.
The Chief Justice-It seems clear this ice was not going to a depot.
Mr. Haxton then left the box.
The cross-examination of Mr. Arndt was
continued by Mr. Slade. He said he had had a good many dealings with Mr. Rennie, whom he regarded as a very keen man of business. Witness was questioned as to statements in Borsig's catalogue as to machinery being supplied which would turn out clear and transparent ice, and asserted that the claim was to produce clear, pure ice.
Witness-I should say making machines means machines for producing That means opaque ice.
[August 21, 1909.
THE HONGKONG WEEKLY PRESS AND
You have read the catalogues carefully. As And the ice was to be as clear as the Hong- far as you know there is no other reference?-kong Ice Company's, instead of being merely No.
clear ?-Yes
Can you remember in Mr. Borsig's letter to you any reference to an opaque core?-I don't think so.
Where did you learn there was an opaque white core in can ice?-I read up for it.
The Puisne Judge-Did you read scientific works?
Witness-I read catalogues and the en- cyclopaedia.
Mr. Slade-You read the encyclopaedia ? Mr. Slade You learned there that there was an opaque white core in can ice.
Witness-Yes.
When did Mr. Rennie first speak to you in 1907 about an ice-making plant?-On October 4th.
When Mr. Rennie spoke to you about an ice-making plant in 1905 you knew very little about it P-Yes.
And you acquired your information in the interval ?--Yes.
Witness said that at an interview he told Mr. Rennie there was an opaque core in can ice, and it was a plant to supply can ice which he proposed to offer. He did not think he specially mentioned the needles in can ice. He was not aware of the fact that needles and a core in the ice made it melt sooner.
on
Mr. Slade read a letter from an engineer in the employ of Arnhold, Karberg and Co. to witness pointing out that ice made the plate system did not melt so quickly as ice made on other systems. He did not pass that information on to Mr. Rennie. He knew that Borsig's plant could not produce ice as clear as that of the Ice Company.
Then why did you enter into a contract to do it ?-I didn't.
Mr. Slade then read the terms of the agree ment, and added that the words were perfectly clear. He asked-If your state of knowledge was as you now assert it to be, why did you enter into this contract without any qualification at all?
Witness-In our letters we had stated perfectly clearly what we were prepared to
guarantee.
But here is the formal agreement you entered into Mr. Rennie told me he would have the letters incorporated into an agreement.
You read the formal agreement? - Yes. And you noticed the differences?—Yes. Why didn't you make any modifications in them? The words looked upon it in this way the difference did
are perfectly clear
not mean anything different to what had already been told in the letters.
**
I
You had had trouble with Mr. Rennie over guarantees before, hadn't you ?--Yes,
Then why didn't you as an intelligent man It would have been make any modifications ?
except with regard so easy to insert the words to a core." Why didn't you do it ?—I could not say why I didn't. It struck me that this wording did not make any difference to what we had put in our letters.
There was an absolute difference. It was going to be as clear as the Ice Company's ice. You noticed the difference ?--Yes.
Then why didn't you put in a few simple words that would clear up all difficulties-?-I suppose it was rather careless on my part.
I suggest it was not carelessness on your part. It was absolutely straghtforward and frank, because your machine could produce ice equal to the Ice Company's ice?—No.
You didn't believe that? No. You know Mr. Rennie wished ice as clear as the Ice Company's ice because he was selling to Jardine, Matheson ?-No.
You didn't?-I thought he was selling in
the clause as to ice-Hongkong.
I supply ice-making solid blocks of ice."
Mr. Slade-It does not say opaque.
Witness-It says "I supply also machinery for supplying clear ice."
Mr. Slade-It does not say so; you are merely drawing the inference.
Witness-Yes the inference may be drawn. Can you show me any other reference in the catalogue to an opaque core ?There does not appear to be any reference.
Did you imagine he could sell any old snow he could put together and call ice? No. It depends on the quality.
Did you imagine he had given any guarantee at all as to the quality of the ice he was going to supply - He did not tell me.
Witness was afterwards questioned as to the agreement with reference to the liability under the guarantee.
You noticed in the guarantee that there was a new liability. The liability was on your firm and not merely on your principals?—Yes.
* .
Didn't you think it worth while, when you were in the same building as Mr. Rennie, to go upstairs to see him ?-It did not occur to me.
The Chief Justice-Didn't you think it worth while to go upstairs? It did not occur to me.
Mr. Blade -The differences
rather material, weren't they ?--Yes.
were
And might give rise to misunderstanding ?— Yes; but I have already explained the view which I took.
Did you imagine that your previous agree. ment merely meant partially clear as can ice always is, and that this new agreement to the ice being as clear as the Hongkong Ice Com- pany's meant perfectly clear? Yet you did not think it worth while to go upstairs to see Mr Rennie ?-It did not occur to me to see him.
I put it to you as a matter of fact that you did see Mr. Rennie, and that he told you unless you could guarantee that much you would not have the contract at all?-No. He didn't.
I put it to you that you thought this plant could turn out ice as expressed and that you were deceived by Borsig P-No.
I must put this question, that you are ready and willing to sign misleading agreements?—No. Either you are the one or the other - No. Witness was then examined as to letters written from the Hongkong branch to the Shanghai branch of Arnhold, Karberg.
Do you allege that the plant had an insufficient trial -Personally, I allege nothing.
You were in Arnhold, Karberg's at that time and you are speaking now on their behalf. Do Arnhold, Karberg allege that the trial was insufficient ?-I don't know.
Mr. McNeill-We pleaded it. I allege it. Mr. Slade That is what I want. This is a lawyer-manufactured defence from beginning
to end.
Do they complain that the trial was incom- plete?-I believe it is mentioned in that letter. -
At the time ?--Yes.
This is one of the many things you are complaining of about now which you did not think of sufficient importance at the time?-I did not mention it.
time ask the Milling Company Did you st any to have a further trial ?---No.
Did you at any time complain to the Milling Company that the trial had been cut short ?—I believe it was done.
Re-examined-
That guarantee which you gave to Mr. Ren- ordinary form of guarantee which you were in nie was no special guarantee, but was your ✪
the habit of giving as manufacturers' agents?
Yes.
And in view of what you told my friend, that that guarantee was inserted deliberately for the purpose of avoiding liability, I want your explanation.
Witness-I did not catch the question, Mr. Slade-It is beyond him.
The Chief Justice-What was the question? Mr. McNeill (to his Lordship-Is it really beyond-(laughter).
The Chief Justice-Is it really worth while ? Mr. McNeill-I don't know that it is. The hearing was adjourned.
Tuesday, 17th August.
Mr. G. S. Cruikshank, mechanical engineer in the employ of Messrs. Arnhold, Karberg and Co. since 1905, said he saw a good deal of the late Mr. Rennie, who discussed with him in the early part of 1906 the erection of an ice plant at Junk Bay. Witness thought Mr. Rennie had studied the matter very considerably from a commercial point of view, and had quite a lot of catalogues of ice-making plants-English, American and German. Arnhold, Karberg & Co. had sold to · Mr. Rennie some machinery and plant before wit- ness arrived in the Colony. Some time in 1906 witness sold for Arnhold, Karberg and Company a small Brunswick ice plant capable of producing 100 tons a day. Witness was frequently at Jaak Bay during the erection of the ice plant, and spoke to a difficulty which occurred with regard to the pumping.
Mr. Slade objected to Mr. McNeill introduc- ing the subject of machinery. If they had to go into that the case would last another four or five days.
No comments yet.
Private notes are available after approval.