Shanghai, 3rd June.
Before Sir N. J. HI Chief Justice, Wosa Wa. Dantas.
"This was an action by Wong Wah-tung, a Chinese coal merchant, against Mr. Barnes Dallas. Mr. D. McNeill (Messrs Dowdall and Hanson) appeared for the plaintiff, and Mr. H. P. Wilkinson for the defendant.
Mr. McNeill, in opening the case for the plaintiff, said that it was redemption action, and the defendant having consented by his answer to an account it would diy have been necessary to trouble the Court but for the fact that a mortgage in this particular case was given to secure joyment of money under the contract, and the parties were not agre contract was or as to whether it was broken or not by the defendant, so that any money could by due under it." It would therefore be necessary for his Lordship to decide what that contract was and whether th was any such performance or refusal to form ax to make any money due under it. The petition and answer in the case were as follows shanghai, in the Empire of China.
he defendant is a British subject and resides and carries on business as a merchant at Shanghai, aforesaid.
3.—Towatds the end of the year 1891 the plaintiff handed to the defendant the native title deed of certain Jand at Shanghai, the property of the plaintiff, to the intent' that the defendant might obtain in his own name a foreign title deed for the said land and might hold the same as security for the payment by the plaintiff to the defendant of the price of certain coal which the defendant was under contract to deliver to the plaintiff.
4.—On the 26th. of December, 1891, the defendant. procured to be issued to himself a foreign title deed for the said land, which title deed" is registered in the books' of the Consulate-General of the United States of America at Shanghai as No. 613, 5.—The defendant, although repeated quested by the plaintiff to deliver the coal, has at all times subsequent to the receipt by iui of the said native title deed neglected oF refused to deliver to the plaintiff any coal whatever, and nothing has become or remains due to the defendant pon the security of the raid title deed or the premises comprised therein 6,—'The plaintiff has from time to time requested the defendant to deliver up to him the said foreign title-deed and to execute a Law Reports: H. B. M.'s SUPREME COURT Before Sir N. J. HANNEN, Chief Justice. WONG WAI The North - China Herald and Supreme Court & Consular Gazette (1870-1941); Jun 5, 1896 transfer of the premises comprised therein to some person on the plaintiff's behalf, and to furnish the plaintiff with proper accounts showing the sum, if any, due upon the said security, but the defendant has refused to do The plaintiff therefore prays 1.—That an account may be taken of the sum, if any, duo upon the said security, and that the defendant may be ordered upon payment of the sum which shall be certified to due within——months after the date of the certificate to execute a transfer of the said premises to such personas the plaintiff may direct.
—That the defendant may be ordered in case upon taking such account it shall appear that nothing is due to him upon the said security, to execute transfer as aforesaid of the said premises within—days after the date of the certificate.
3.—That the defendant may be ordered to deposit in Court the Consular title deed of the premises now or formerly registered. at the United States Consulate-General under title deed No. 613, and. may be restrained until further order from dealing with the said premises or with such title deed save as the may direct.
4.—That the plaintiff may have such further or other relief as the nature of the case may require.
In answer to the said petition the said defendant says as follows 1,—The defendant admits the allegations contained in paragraph 1,2 8 and 4 2.—The defendant denies the. allegations contained in paragraphs 5 and 6 of the said petition.
And in further answer to the said petition the defendant says as follows and the defendant that the title deed. re-B.—It was agreed between the plaintiff ferred to should be held by the defendant as security not only for the due fulfilment of the contract relating to the coal referred to, but also to secure all tunis whatsoever whic! then were or might thereafter become due by the plaintiff to the defendant in account current.
4.—On the 10th of October, 1891, the plaintiff agreed to buy from the defendant 5,000 tons of coal to arrive in Shanghai before the 3ist of December of that year at the rate of Ti. 4 per ton, Later it was mutually agreed that the quantity to be ought and sold under the contract should 1ye reduced to 3,000 tons.
5.—On the 7th of December, 1891, 1,078} tons of the said coal arrived in Shanghai, but the plaintiff, not being red to take ae f the same, it was then agreed that the time fixed for the arrival of the remainder of the 3,000 tons aforesaid should be extended to the 3ist of January, 1892, and that the plaintiff should take delivery of the said 078} tons then arrived before the 7th of December, 1891, and pay for the same at the reduced rate of Ts. 3.90 per ton.
6.—The plaintiff on the 6th and 9th of December, 1891 took delivery of 20 and 40 tons respectively out of the said shipment of 1,078 tons, paying on account of the same only the sum of Tls. 71.05. The plaintiff failed to take delivery or pay for the balance of the said shipment, 7.—On the 3nd of January, 1892, a further shipment of 1,0574 tons arrived in Shanghai, but the plaintiff failed to take delivery or pay for any part of the shipment.
8.—On the 2ist of January, 1892, the re-8653 tons, part of a large shipment, Shanghai, but the plaintiff failed to take delivery or pay for any part of the said shipment.
9.—Tho' plaintiff having failed to take delivery of the said coal or to pay for the same the defendant resold the same. A large loss occurred on such resale.
10.—The salt' coal agreed to be purchased as aforesaid by the plaintiff from the defendant was sold by the defendant on account of Koga Zembei, owner of the Sakaguchi Mine, Japan, by whom the said coal was shipped Shanghai, and the defendant on or about the 30th November 1892 deposited the eaid title deed with the said Koga Zembei as security to the said Koga Zembei for the cost of the ssiid coal so shipped by him..-1.—The said Koga Zembei-has informed the defendant that the said-title deed has been lost and the defendant, has, with, concurrence of the said Koga Zembei; taken the necessary preliminary steps to obtain a new title deed for the said lot of land which still stands registered in the name of the defendant.
12.—The plaintiff is largely indebted to the defendant in respect of the matters aforesaid;' who has from time to. time before this suit'was instituted rendered accounts to the plaintiff, but the plaintiff has failed to pay the amount claimed by the defendant or to adjust the said accounts.
13.—The defendant is ready and willing to render an-account of the amount due to him under the said. mortgage, and upon due payment thereof, to reconvey the mortgaged premises to the plaintiff The learned advocate, continuing, said he believed that nearly all the dates in the defendant's answer were wrong. yarseraph the date should be '10th' Octo-Mr. Wilkinson said that in the fourth
er, 1891;" in the fifth for '7th December," "7th Novembar" should be read in the seventh, for "3rd January" " 3rd_ December," and in the eight, for '21st January," 21st December." The learned counsel, at this stage, asked whether there was any case for his learned friend to offer before an account had been taken. He raised the point because it would affect the question of costs.
His Lordship said that sooner or later it was evident the question as to whether or not there was @ breach of the contract would have to be, decided. No doubt there was the question of costs, but he could decide that by-and-by, Mr. McNeill, in explaining the plaintiff's case, said that in the year 1891—he believed. in the month of October—the plaintiff entered into a contract with: the defendant for the purchase of 3,000 tons of coal. When he siid the plaintiff entered into a contract, he meant that a document was drawn up by the defendant which was translated te the plaintiff by @ perso in the defendant's employ, who said that it was a contract for 3,000 tons of coal. 'The' plaintiff signed. it. The price fixed by the contract entered into by the plaintiff was TIs, 3.95 per ton. About forty days afterwards the defendant informed the plaintiff that a certain quantity of coal had arrived; that would be in the month of November, 1891. There was some discussion on that occasion, and, according to the plaintiff, the. defendant stated that he could not deliver the coal at the price fixed by the contract, but that the price must be Tls. 4.10. The plaintiff protested, but, inasmuch as immediately upon making the contract he had re-sold the coal at a considerable profit, it was better for him to consent to the defendant's terms than refuse altogether. Accordingly, new contract was drawn up, and en: tered in the defendant's books, for 1,075 tons, or 1,078 tons, in the mouth of November. The next: step was that the defendant agreed to deliver to the plaintiff 250 tons, a part of this 1,078 tons, and gave him a delivery order, receiving in exchange two native bank orders payable in ten days. The plaintiff sent the delivery order to the godown, but, when it was presented there a foreigner'who examined it said the order was not in correct form. Thereupon the plant took the delivery order back to Mr. Dallas, who admitted, upon examination, that it was rather an unusual order, but said the plaintiff need not worry as he (Mr, Dallas) would go to the godown himself with the plaintiff." The plaintiff- went. several times to see the defendant but, for sonic inexplicable reason, Mr. Dallas did not go and showed no willingness to do-so.' As' the time approached forthe payment of the bank orders the' plaintiff was not desirous: that they should be cashed and, accordingly, he stopped them. The next matter to-which reference had to be made related to 800 tons of coal,: s part also of the 1.078" tons. Apparently;: he plaintiff was still desirous
Text read from the printed page and cleaned; old type leaves the occasional error.