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Colonial Cases

Yang Tse Nang v. Holliday Wise, 1860

[sale of goods]

Yang Tse Nang v. Holliday Wise and Co.

Consular Court, Shanghai
12 March 1860
Source: The North-China Herald, 24 March 1860

 

H.B.M. CONSULAR COURT, SHANGHAI.

12th March 1860

YANG-TSE NANG v. HOLLIDAY WISE & Co.

Before T. T. MEADOWS, Esq., H.M. Consul,

R. C. ANTROBUS, J. ROTHWELL, Assessors.

PLAINTIFF - I sold Defendants a chop of black Tea at 30 taels per picul, about 240 piculs (value about 7,200 taels.)  The Tea having been placed in their Godowns they now refuse to pay me for it.

DEFENDANT - I admit the claim, I do not know the man who lays the Plaint.

[A new Plaint was here made out in the name of the Broker who actually sold the Tea, instead of that of the teaman, and the matter was proceeded with.]

DEFENDANT. - I decline to carry out the agreement because the Plaintiff refused to refire the Tea, which was in bad condition, and to allow a deduction of 1 or 2 taels per picul for refiring.

GUY REHDE. Tea taster to defendant, beinbg duly Sworn states: - It is custom to inspect the Tea to se if it is equal to the Muster.  I inspected about 40 out of the chests at random out of the whole 400, I found that they were inferior to muster, they were of the same quality but in bad condition, they were in our Godown a day or two before I inspected them.  Several other Tea-tasters have inspected the Teas; I have been two years tea-taster at Shanghai.  In affairs of this sort the matter is generally amicably settled.  I believe there is no fixed rule as to the arrangements.

Cross-examined by Assessors. - The Tea was bought on a chest muster as well as a small muster.

JOHN THOMAS ELLIOT, being duly sworn states: - About a week ago, I saw 40 chests at Holliday Wise & Co.'s Godown, and I remarked that the Tea was not in marketable order.  Afterwards I was shewn the muster; the majority of the Teas were much inferior to the muster in condition.  I have been Tea-onspector for more than 4 years.  In these cases, I have generally observed that the Tea has been refired at the expense of the Chinaman; but there is no special rule about it; it is generally a subject of arrangement.

HENRY WILLIAM CAREY, being duly sworn states: - I was called in by Rehden to inspect the Tea, and this morning I went and opened about 2 doz: cases that had not been before opened.  I consider the Tea as being in bad condition, some of it musty.  I was not shewn a master chest.  I have known similar cases and have asked the man to refire the Teas, if he has refused I have thrown up the Tea; there is I believe no fixed custom on the point.

GUY REHDE, cross-examined: -      It was on the 8th Feby, that the sale took place.

H.  G. HOLLINGSWORTH, being duly sworn states: - A Tea broker requested me to go and examine the Tea in question, he is not here now.  I saw about 30 or 40 chests; they were opened in my presence about a week ago.  The Teas were in different states.  Some were not in a fit state for shipping.  I do not consider that any of them were perfectly sound.  I myself would have objected to ship then.  I have been tea-taster 4 years here.  In cases of this sort, I think there is no fixed custom; it is generally settled by arbitration.

Judgment. - That the Tea having been proved to be out of condition, the Defendants have the option of returning it, or of retaining it and refiring it at the cost of the Plaintiff; and that the Plaintiff pay the costs of the suit.

THOS. TAYLOR MEADOWS.

I assent to the above judgment to the full extent to which it goes.  I dissent from it in so far that I consider that it does not indemnify the defendants in the event of their electing to retain the Tea, sufficiently to meet the strict justice of the case; for I am of opinion that is justice requires, as it is decided that it does, that the Defendants shall have the option of returning the Tea or of refiring it at the cost of the Plaintiff, it further requires that they shall receive fair and sufficient compensation for the inferiority in quality of the Tea when refired as compared with the original muster on which the purchase was based, inasmuch as the process of refiring, consequent on and resulting  from which alone the inferiority ofquality will arise, is only rendered necessary by the breach odf contract on the part odf the Plaintiff. R. C. ANTROBUS, Assessor.

I assent to the Judgment.  THOS. ROTHWELL, Assessor.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School