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Colonial Cases

Sun Tah v. Scheibler, Matthaei and Co., 1870

[sale of goods]

Sun Tah v. Scheibler, Matthaei and Co.

North German Consular Court, Shanghai
22 January 1870
Source: The North-China Herald, 1 February 1870

 

NORTH-GERMAN CONSULATE

Shanghai, 22nd January.

Before W. ANNECKE, Esq., Consul, and E. HUBENER, B. TEIGE, Assessors.

SUN-TAH vs.  SCHEIBLER, MATTHAEI & CO.

Claim for Tls. 928.89 for an alleged breach of contract, &c.

Mr. Cowie appeared for the Plaintiff.

The Defendants in person.

Mr. COWIE stated that the Plaintiff contracted with the Defendants on the 15th April last, for the purchase of sixty cases of Needles, as per muster (handed into Court), at Tls. 120 per case, the goods to arrive within seven months from that date.  For every case less than thirty delivered within the stipulated time, the Defendants were to pay to the Plaintiff a sum equal to the market difference in price, but if the Defendants delivered thirty cases in time, the Plaintiff was to be satisfied.  Tls. 300 was to be deposited by Plaintiff with the Defendants as bargain money.  The first ten cases when arrived not being up to muster, the Defendants made an allowance of Tls. 20 per case on them, and they were then taken delivery of; a second lot of ten cases arrived in October, but as they were not according to muster, Plaintiff declined to take delivery.  A third lot arrived after the expiry of the contract time and were refused on that account.  He also stated that owing to the dispute between the parties not being settled, the Defendants had retained in their possession a case of Velvets belonging to the Plaintiff, valued at Tls. 253.89.  The claim of Tls. 928.89 was made up of the following sums, namely Tls. 275 on account bargain money (Tls. 25 of the original amount having been already returned), Tls. 400 as the market difference on twenty cases short delivered within the contract time, and Tls. 253.89 as the value of the case of Velvets.  Mr. Cowie said - he would now call evidence in support of the claim, and proposed first of all to examine the Plaintiff.

Defendant alleged that, the needles being up to muster and having arrived in contract time, ought to be taken delivery of.  As for the velvets, he stated that they were not paid for; he is however ready to deliver them, as soon as plaintiff should do so.

The CONSUL said the Plaintiff could not be cross examined according to the rules of the Court, but he was ready to receive other evidence in support of the claim.

The COURT then referred to the difference between the terms of the contract as expressed in the sale note, and the entry in the contract book.

Mr. COWIE said in his opinion, the terms were quite inconsistent with each other.  His client declined to be bound by the entry in the contract book, especially that portion relieving the vendors from responsibility in the event of the goods not being according to sample.  The sale note handed the Plaintiff stated plainly, that the goods were to be according to sample, but the contract entry book shewed something almost, if not quite the reverse.  He referred to Chitty to support his view, that where there are two clauses in a contract so totally repugnant to each other, that they cannot stand together, the former should be received and the latter rejected. N He believed the Prussian Courts adopted the same rule of construction.  He referred also to the Prussian Code on the subject of interpretation of contracts, Savigny, VIII, sec. 372.  Wachter, II. 1-9. Pr. Allgem. Land Recht, Einleitung, sec. 23 to 25.

The COURT reserved its decision on this point.

Mr. COWIE wished to ask the Defendants if it was their practice in dealing with Chinese to give the purchaser a sale note containing different conditions to those entered in their contract book; but the Court ruled that Defendant could not be legally compelled to answer the question.

Evidence concerning the detention of the box of Velvets was then gone into, but no proofs coming forward, the Court reserved to hear further evidence if necessary.

After some further discussion concerning the samples handed in, the members of the Court withdrew to consider their decision, and on their return into Court, we understood the Consul to say as follows:-

The COURT finds that the Plaintiff agreed to purchase Needles according to the muster handed in by him, and the opinion of two experts would be taken, as to whether the goods offered the Plaintiff by the Defendants were equal to that muster and whether, therefore, the bargain money had to be returned or not.

That the claim for Tls. 400, on account of market difference, be disallowed.

That with reference to the Tls. 253.89 claimed by Plaintiff, the Court would examine the books of the Plaintiff and defendant, and then give their decision.  A future day will be appointed for the final disposal of the case.

 

Source: The North-China Herald, 29 March 1870

NORTH-GERMAN CONSULATE

March 25th, 1870.

Before W. ANNENCKE, Esq., Consul.

And E. HUBENER, B. TEIGE, Assessors.

SUN TAH v. SCHEIBLER, MATHAEI & Co.

Claim for Tls. 928.89 for an alleged breach of contract, &c.

Mr. Cowie appeared for the Plaintiff.

The Defendants in person.

This case, it will be remembered, was part heard on the 22nd January, and was reported in the N. C. Herald on the 1st Feby. Last.

The Consul said that, since the case had been adjourned the opinions of two experts had been taken as to the quality of the needles, one stated they were, and the other that they were not, according to the muster, and he wished to know if Mr. Cowie had any additional evidence to adduce on the subject.

Mr. COWIE said he was prepared to offer the evidence of a purchaser of the needles from Suntah, who declined to complete the contract on the ground that they were not according to muster.

The COURT declined to receive such evidence, coming as it would from an interested party.

Mr. COWIE would then leave that point for settlement by the Court, remarking that upon the decision of that question also rested the right of the Plaintiff, to a return of the bargain money.  The only other item now requiring investigation was the sum of Tls. 253.89.  He had carefully looked through the somewhat lengthy accounts (handed in) of the Plaintiff, and had had a short statement prepared showing the balance die from the defendants.

This statement was carefully examined by the Court and compared with the accounts of the defendants, and after several questions had been put to the parties concerning the same, the Court withdrew to consider their judgment.

After a brief interval, the Court re-opened and the Consul pronounced the following decision.

The COURT finds that the needles tendered by the defendants were not according to muster, and the Defendants are therefore ordered to return to the Plaintiff the bargain money or sum of Tls. 275.  That the Defendants deliver to the Plaintiff the box of velvets claimed, or its value, Tls. 253.89.  That the claim or Tls. 400, for market difference, be disallowed.  That the Court expenses be borne by both parties equally.

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