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Colonial Cases

Smyrna

The Times, 28 July, 1794


LAW REPORT
GUILDHALL, LONDON.
SITTINGS BEFORE LORD C. J. KENYON AND A SPECIAL JURY OF MERCHANTS.
YOUNG v. JOLLY.
  This was an action of covenant on a charter party, to recover freight on the ship Meliora, for a voyage she performed to Smyrna and back again. The rate of freight was 120 l. per month and the amount of it was 26891 l. The jury found a verdict for 2370 l.
  A further account the first opportunity.

 

Source: The Times, 24 December, 1800
 

LAW REPORT.
COURT OF KING'S BENCH, DEC. 23.
SITTINGS BEFORE MR. JUSTIC LE BLANC, AND A SPOECIAL JURY OF MERCHANTS.
EGERTON v. SCOTT & CO.
 This action was brought by Mr. Egerton, who is a considerable Turkey merchant in this city, against Mr. William Scott and Co.  to recover the amount of 358 l. under the following circumstances. In the month of May, in the present year, Mr. Egerton was in expectation of the arrival of a ship, called the Atlantic, from Smyrna, having on board for him, 115 bales of madder.  He gave directions to a broker of the name of Keene to sell it. The Defendants were the purchasers.  The contract was in writing, and to this effect:
  "Sold, on account of Hezekiah Egerton, to William Scott and Co.115 bales of madder roots, by the Atlantic, and in sound merchantable condition, at 5 l. 10s. per cwt. The decision, with regard to the quality and condition, to be left to the broker, by whose determination the parties shall abide. And if it shall not arrive on or before the 1st of August next, the buyer shall be at liberty to relinquish his bargain, if he chooses to do so."
  The ship arrived on the 22d of July, and after having performed quarantine, the goods were landed on Pierson's Wharf. The Defendants had due notice of their arrival, and an order for delivery was sent to them. On inspecting the madder, they thought it was not agreeable to the contract, and refused to take it. They were willing to refer it to any two fair persons in the trade to say what was the fair value of it. But this the Plaintiff positively refused to do, as by the contract both parties had agreed that the Broker should be judge of the merchantable quality and sound state of this commodity.
 It was alleged by the Counsel for the Plaintiff, that the great reason why the Defendants would not take this madder was, that between the 26th of May, when the contract was made, and the 30th of October, when the goods were finally tendered to the Defendants, the markets had fallen one pound per cwt. In consequence of the Defendants refusal to accept this madder, it was sold at public auction at Garraway's; and this action was brought to recover 358 l. the amount of the difference of price which the madder was sold at in May to the Defendants, and the price it brought in October.
  Mr. Keeble was examined on the part of the Plaintiff. He said he had done business on his own account between six and seven years. In May last he sold a parcel of madder-roots to the Defendants on account of the Plaintiff - the contract was such as has been described. These goods were to be paid by a bill at six months, or by cash, with three per cent discount. He had examined this article; he had examined from 20 to 25 bales out of the 115. He was perfectly acquainted with the subject to say, that this madder was of fair merchantable quality, and in sound and merchantable condition. It was in unexceptionable condition, and of as good quality as madder roots generally run. He always considered it as merchantable himself. It did not appear to have more sand mixed with it than was usually found in such roots. There was always more or less sand pulled up with these madder-roots. When this madder was sold, it brought from 89 to 93 shillings per cwt. It was all of one quality. The market was then very flat; and one reason, among others, for the low state of the market at that time, was the expectation of the arrival of another ship from Smyrna, having on board 700 bales of the same commodity. That ship was captured, but that circumstance was not known till some time after the sale. It brought a fair price, according to the state of the market at that time. It brought more than he expected - the market price was then unsettled. He said he had done much more business for the Defendant than for the Plaintiff. He had known 200 bales of madder bought, and the buyer had not looked at ten of them. The Defendant never found fault with him that he had not examined more of the bales.
  Mr. Justice Le Blanc here observed that the only question in this case was, whether Mr. Keeble, the Broker, had made a proper examination of the article, so as to enable him to decide as a judge ought to do. The parties to this contract had agreed to be bound by his judgment.
  Mr. Erskine, on the part of the Defendants, observed, that this was a cause of considerable importance. This was an article in which the most abominable frauds were constantly practised. This article was brought from the neighbourhood of Smyrna; and he understood the frauds exceeded fifty thousand pounds on the importation of this article for a very short time. Every merchant at the Royal Exchange could bear ample testimony to the truth of that assertion. The Defendant had entered into an extremely absurd and improvident contract.  He said, one would think this root had been called madder, because people were madder on that subject than on any other. He did not mean to attack Mr. Keeble's character. These parties had substituted him in the place of his Lordship and the Gentlemen of the Jury. But the substitution of Mr. Keeble, as a Broker, and in the character of the Lord Chief Justice on this business as his Lordship and the Gentlemen of the Jury would have thought it their duty to have conducted themselves. If he had fairly examined this matter, he admitted there was no appeal from his judgment, however erroneous it might be. The Counsel displayed his usual abilities in endeavouring to shew that Mr. Keeble had not exercised his judgment on this matter as he ought to have done - he ought to have examined all the bales, as they were all various. He contended that if this award of this Broker could have been brought before the Court of King's Bench, they would certainly have set it aside. As this root was dug out of the ground, no doubt some sand and earth adhered to it, and that was from five to seven pounds per hundred weight.  But frauds were frequently committed in this article, and stones and earth mixed with it, so that instead of the commodity itself, the buyer received more rubbish. He took the case to be shortly this.
  The Defendants say that you must shew that this article was an article of fair merchantable quality. The Plaintiff says I have shewn it. I have shewn it by Mr. Keeble, and you are bound by his judgment.  But the Defendant's reply he has not examined it, and if he had, he would have decided that it was not of fair merchantable quality.
  After a very excellent summing up by the learned Judge, the Jury found a verdict for the plaintiff. Damages, 358 l.

 

Source: The Times, 28 July, 1833.


VICE-CHANCELLOR'S COURT, Thursday, July 23.
GOUTT v. PARKINSON AND FRODSHAM.
  This was an application on behalf of Messrs. Parkinson and Frodsham, watch and chronometer makers, in 'Change-alley, for the dissolution of an injunction obtained against them by David Ralph Goutt, of Bunhill-row, watchmaker, whereby they were restrained from making and exporting watches bearing certain marks. The plaintiff in his bill, filed on the 4th of April last, alleged that himself and father had been engaged for a number of years in the manufacture of watches intended principally for the Turkish market; that they had, in addition to their names, always engraved on the name-plate of their articles the word "pesendede" in the Turkish character (a word signifying warranted or approved, besides other emblematic  figures; that the defendants had copied the same, and exported their watches, thereby seriously injuring the  trade of the defendant; and on this representation the injunction was granted.
  The Attorney-General (with whom was Mr. Spence) appeared in support of the application. He stated that the defendants had been long in the habit of exporting watches to different parts of the globe. They were applied to by a Turkish firm for a number of watches, and at the same time requested to affix to the same watches  certain characters in Turkish, which was complied with; but on discovering that part of the characters represented the name of the plaintiff, they refused to part with the watches until they had erased these characters and affixed their own names, though retaining the "pesendede,"not considering that they thereby infringed on any right or privilege belonging to the plaintiff.  The defendants had no wish to affix the plaintiff's name to their goods, for they thought their own would serve them in better stead; they only claimed the right of affixing a term which merely implied a warranty, and as such appeared requisite in the Turkish market, whether at Constantinople or Smyrna.  No magical influence was sought by this supposed cabalistic word; and the only real ground of complaint by the plaintiff was that they had supplanted him in the market by the supply of a cheaper article. They had disclaimed any wish to take advantage of the plaintiff's name; in addition to which the whole number of these watches, manufactured by them for this market, was 18; and he therefore felt confident that the injunction would be dissolved, for had the explanation been given at the time, it would not have been granted.
  Mr. Knight (with whom was Mr. Koe) contended that the defendants had in view the advantage of using the plaintiff's private mark.  They had only acquired a knowledge of this particular word by copying it from a watch made by the plaintiff, and though it might be a word of common signification, yet the continued use of it, by an individual, gave a right to its exclusive use, and a claim that it should not be copied. The defendants, though they had exported watches during many years to the Levant, had never before adopted this mark; and though the names of the makers were, in addition, inserted on the plate, it would not prevent fraud, as the Turk would readily recognize the word in the Turkish character, but would know nothing of the names which were in Roman.
  The Attorney-General briefly replied.
  His Honour referred to the defendants having engraved the plaintiff's name in the Turkish character, and that though they had subsequently erased that, they had retained the "pesendede;" therefore the only question was as to the use of this word, for they had evidently refused to omit the insertion of their own names, as seemed to have been asked by the merchant, who gave them the order. When a man had used for some time a particular sign or mark, he thought he had a right to prevent other persons from copying the same; the word in question seemed to be of particular value, and no doubt was of powerful import to the Turkish mind. He thought the plaintiff had acquired a right to the use of this word, as well as to the figures of the sprig and crescent; and he should therefore refuse this application for a dissolution, with costs.

The Times, 23 July 1891

BRITISH TRADE WITH ASIA MINOR - A WARNING.

The British Consul-General at Smyrna warns British merchants against consigning their goods to foreign mercantile houses in the Levant.  It is, he says, necessary to state clearly that if British firms consign goods to foreign houses who are not under the jurisdiction of our Consular Court in Smyrna, and afterwards fail to obtain the proceeds of their consignments, it will be useless to invoke the assistance of the Consulate-General, for it cannot aid them under such circumstances, while in some of the foreign Courts defaulting debtors are able to find means of delaying and evading payment to an extent that must practically prohibit their creditors having recourse to the law. ... [More detailed warnings.]

 

 

The Times, 14 September 1892

LEGAL NOTICES.

AUGUSTUS OAKLEY CLARKE, Deceased. ... late of Boumabat, near Smyrna, in Asia Minor, merchant, deceased (who died on the 28th day of May, 1892, and whose Will was proved in her Britannic Majesty's Consular Court at Smyrna aforesaid, on the 17th day of June, 1892, by Anne Clarke (widow of the deceased) and Douglas Carr Paterson, two of the executors therein named,...

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