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Colonial Cases

Limby v. Blum Bros., 1865

[sale of goods]

 

Limby v. Blum Bros.

Consular Court, Shanghai
13 June 1865
Source: The North-China Herald, 17 June 1865

 

H.B.M. CONSULAR COURT          .

Before Sir HARRY S. PARKES, K.C.B., H.B.M. Consul,

S. BRUERLL, Esq., C. COLNETT, Esq., Assessors.

Shanghai, June 13th, 1865.

LIMBY  versus BLUM BROS.

The plaint in this case was to the following effect: - That on the 22nd of July, 1864, it was agreed between the plaintiff and defendants that the latter should sell and deliver to the plaintiff 692 bales of seaweed, weighing 440 piculs, upon the terms that the seaweed should be in good order and condition and should be paid for at the price of Tls. 2,750 for the entire invoice, at ninety days prompt, with corresponding interest.  And the plaintiff has paid this price for the seaweed, and all the conditions were fulfilled by the plaintiff.  Yet the defendants delivered to him a much smaller quantity, namely 632 bales, in bad order and condition ands short in weight.  Whereby the plaintiff lost the price paid by him for the seaweed and the profits which he would have derived from the performance of the agreement by the defendants.

The defendants made a general denial of the agreement in the manner and form alleged in the plaint, and of all allegations in the plaint, in respect thereof.  As to the money counts.  Except as to the sum of Tls. 246.76, the value of 62 bales of seaweed short delivered, as referred to in the plaint, the defendant stated that he never was indebted as alleged.  As to the above-mentioned sum of Tls. 246.76, payment thereof would be made into Court.

Mr. MYBURGH said that the whole case was so simple that he would make but few remarks.  The action was brought by Mr. Limby on a contract made with Blum Bros. for the supply of 692 bales of seaweed, to be delivered by them in Hankow, in good order and condition.  There were two breaches made by the defendants in the performance of this contract, - the seaweed was not in good order and condition, and was less in quantity than stipulated.  The word "warranted" had not been used in the contract but it was not necessary; it was implied. [Tear in paper.] seaweed was sold at a much lower rate than [Tear.] had been according to contract.  Mr. Innes, Mr. Limby's agent at Hankow, had stated [Tear] evidence formerly taken, that some of it was sold at Tls. 7 per picul, namely, that portion which wass in good order and condition.  The natural inference to be drawn was that had the balance been of the same quality it would have sold at the same rate, as it would be absurd to imagine that 440 piculs would have glutted the market.  It was on account of its inferior quality that the balance of the seaweed was sold at Tls. 3.50 and part at Tls. 4, per picul.

H. J. LIMBY said: - I am a broker in Shanghai.  In July last I instructed Messrs. Powell & Co. to purchase seaweed for me.  This is a true copy of the contract (handed in).  Buy the contract the seaweed was to have been delivered in Hankow to my agents there, Messrs. Innes & Co.  They were instructed to take delivery by Messrs. Powell & Co.  I wass informed through Messrs. Powell & Co. as to the quality, weight and condition of the seaweed.  I make my claim on account of the actual difference between the contract weight and that of the quantity delivered, and because of the differenced between the price at which Mr. Innes sold the seaweed and the market price it would have realized had it been in sound condition.  I sustained an actual loss of over Tls. 1,700.

To MR. EAMES: - I have had a year and a half's experience in seaweed.  I think there are only about four qualities of cut seaweed.

TO THE COURT: - There is a great difference between cut and long seaweed.  The latter is much cheaper.

 ... A. ESPANTOSA said: - I was in July last a partner in the firm of Powell & Co.  We negociated for the purchase of some seaweed from Messrs. Blum Bros., on the party of Mr. Limby.  Previous to entering into the contract I had a conversation with Mr. Rosenthal on the subject of its quality.  I had once before bought seaweed of good quality from Messrs. Blum Bros., on account of Mr. Limby.  At the time I was purchasing the second lot Mr. Rosenthal assured me it was equal to if not better than the previous lot purchased.  He informed me that this seaweed had been in Hankow for some time.

To MR. EAMES: - I am pretty familiar with the quality of seaweed.  I know there are several different qualities of seaweed.  It would be difficult for me to say whether the first lot bought from Blum Bros. was all of the same quality.  I bought the second lot by muster.  I don't know where the muster is.  I did not take it away with me.  I know nothing about the seaweed that was shipped.  I did not see it. I received my commission.

TO THE COURT: - I did not mention quality in the contract, as I had seen a muster.  I did not put anything about its being "according to muster."  I was acting in good faith, and did not think there would be any difficulty about the matter.

The evidence of James Innes, Esq., taken before Sir Harry Parkes on the 5th ultimo, was then read.  It ran as follows:-

JAMES INNES said: - I am a partner in the firm of Innes & Co. of Hankow.  I recollect in the month of July of last year taking delivery from Messrs. Oxford & Co. of a quantity of seaweed on account of H. J. Limby.  This is a memo of the weights and charges.  I informed Messrs. Powell & Co. in writing, of the deficiency - the quantity short delivered, 102 piculs, 14 cat. 4 lbs.  I was advised that I should have received 692 bales weighing 440 piculs, the amount stated in the contract. (Contract handed in for information of Court.)  As far as we could examine in the godown or cellar it appeared in good order and condition.  This examination was made in Messrs. Olyphant & Co.'s godown, and was a superficial examination.  I sent a native to examine it and he returned and said "can pass."  Messrs. Oxford & Co. stored it in Messrs. Olyphant & Co.'s godown.  On delivery to me of the seaweed and removal to my own godown a re-examination or a closer examination took place.  I then found that some of it was in very good order while other portions were badly heated, and in disposing of it, the portion in good order was sold at seven taels per picul, and the heated portion some at 4 taels and some at 3 taels 5 mace.

I am acquainted with the market price of seaweed at that time.  The same seaweed that I sold at 4 taels and 3 taels 5 mace had it been in good condition would have sold at 5 taels 5 mace.  At 4 taels I sold 195 bales weighing 44 piculs 23c., at 3 ½ taels I sold 330 bales weighing 243 piculs 35c.  At that time I certified the particular value of the seaweed that I sold at 4 Tls and 3 Tls. 5 mace.  This is the certificate signed at the time and which I swear to now.  I have had great experience in selling seaweed.  The market value of all articles is given us by out Chinamen, and I am sure that the above values are those which we given us.

Cross-examined:- My principals were Powell & Co.  They informed me that they were acting for Mr. H. J. Limby.  To the best of my recollection I was directed to take delivery of the seaweed if it were in merchantable order, and I considered it in merchantable order.  At the time I took delivery, I considered that bit was in good order and condition, or I would not have removed it from Oxford & Co.'s godowns, but I had not minutely examined it.  I acted upon the information of one of my Chinamen, which is the usual mode of business.  I had no specific orders, simply a general order to do the best.

I don't know the circumstances of the purchase, as my letter of the 10th August will shew; I think it was a few hours after the receipt of the seaweed into my godown that I found it was heated, "sweated" as we call it.  At that time of the year seaweed may heat, I was going to say in six weeks, but that would depend on the seaweed as well as on the godown, the ventilation, &c.  This heating was not discovered until after delivery had been taken, very shortly after, 2 or 3 days perhaps, certainly not more.  No survey was held.  I sold it within a month.  I received instructions from Messrs. Powell & Co. being at Shanghai.  I made no effort to return it because I did not know the nature of the contract made with Mr. Limby.  It is very probable that I told Mr. Maxwell, the agent of thr Mercantile Bank at Hankow, that my compradore would sell the seaweed.  The price of seaweed was falling at that time.  It always does with hot weather.  I had not seen the contract, which says, "to be delivered subject to good order and condition," but had I seen it I think I should have taken delivery.

Messrs. Olyphant & Co. refused delivery until Messrs. Oxford & Co. had repaid the advances to the Bank.  I recollect making the remark that I was surprised at their advancing upon such cargo, on account of its perishable nature.  [Tear.] [I] did not know whether the weight was guaranteed or not.  It is natural for parcels of seaweed to contain various qualities.  I have seen a large quantity of one quality; it depreciates by evaporation and by salt and sand being shaken out of it.  Fifteen per cent is a fair average loss on seaweed brought as rapidly as [possible from Hakodadi to Hankow.  I have heard of it reaching 22 per cent.  This seaweed was weighed as I took delivery, weighed in and weighed out. The weights in delivery are those given in my letter of 10th August, 1864.  When I took delivery Mr. Oxford told me they had sold 63 bales.  It turned out 60 as I state in the above letter, which made 335 piculs odd that I received.

This closed the case for the plaintiffs.

Mr. A. ROSENTHAL said: - I remember the conversations which preceded the sale of the seaweed to Mr. Espantosa.  I positively swear that no muster was shewn at the time of the contract being made.  I procured musters, but this was after the contract had been entered into.  I told Mr. Espantosa I had never seen the seaweed so could not describe it, but that he could receive musters in Hankow.;  I have had a great deal of expedience in seaweed.  (The witness then proceeded to give a minute description of different qualities of seaweed). The demand for seaweed lessened considerably since the contract was made.

To Mr. MYBURGH: - If Mr. Limby had agreed to arbitration I meant to leave the question of weight to the arbitrators.  On the 10th August Mr. Limby came into my office with a letter purporting to be from Mr. Innes in Hankow, but in which nothing was mentioned about bad order or condition.  I don't think I have ever sold seaweed in good order and condition for 3 Taels.

Mr. EAMES thought the question to be decided was whether or not the cargo of seaweed was in good condition on its arrival at Hankow.  All the other questions in the case had been satisfactorily disposed of.  He would draw attention to the fact that the defendant expressly stated in the contract that he would not guarantee the weight of the seaweed.  Seaweed being a damp substance would naturally lose considerably in weight, indeed it had been known to lose 20 per cent on a voyage from Hakodadi to Hankow.  Mr. Innes had said that the seaweed was heated, but this it as very liable to become, and it might have been in perfect order when taken from the vessel, and subsequently become heated in the godown.  If a hidden defect had been discovered by the plaintiffs they might have been entitled to claim for damage, but this was patent, and great carelessness was shewn in the seaweed not having been minutely examined.  He would suggest that the fall in the market may have caused the decrease in the price obtainable for the seaweed.

Mr. MYBURGH, in briefly summing up his case, quoted Chitty on contracts to prove that a vendee is entitled to claim from the vendor the difference between the market value of goods and the price at which they are re-sold.

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