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Colonial Cases

Bavier and Co. v. Hooper and Clark, 1867


Bavier and Co. v. Hooper and Clark

Supreme Court, China and Japan(?)
13 April 1867
Source: The North-China Herald, 17 April 1867



Before Sir Edmund Hornby.

April 13th.


This was an appeal from the decision of H.B.M. Court at Kanagawa.

The petitioners sought to recover from the defendants, $10,502.28, the value of 23 bales of waste silk and nine bales of pressed cocoons, the property of the plaintiffs stored in the defendants' godown, which was destroyed in the great fire at Yokohama last year.  In the Court below, judgment had been given for the defendant, with costs.

Mr. MYBURGH appeared for the appellants.

Mr. RENNIE appeared for the respondents.

Mr. MYBURGH remarked that there seemed to him to be an idea in the mind of the Court below that there should have been a written policy of insurance, wherein all the terms of such insurance should be set forth, whereas such was not actually necessary.  The learned Counsel contended that there had been a distinct verbal agreement, and commented strongly upon the absence of any evidence on the part of Mr. Clark who could have testified as to what had actually passed relative to the agreement.

Mr. RENNIE contended that where the evidence was so conflicting as in the present case, he did not think an Appellate Court would consider itself justified in reversing a decision from the Court below, and quoted from a judgment of the late Lord Justice Knight Bruce, in support of this view.

The Court delivered judgment as follows.

Notwithstanding the ability with which this case has been argued by the Counsel for the appellants, I see no reason to disturb the verdict given by the Provincial Court at Yokohama.  The Court below was not satisfied with the proof offered for the purpose of establishing a contract for the Insurance of the silk.  Whether such a contract existed or not, was eminently a question for the jury, and in view of the fact that the Court was assisted by two Assessors, themselves merchants and accustomed to business, I think I should be incurring a great risk by assuming that they had decided not only against the evidence offered, but against the known usage of trade in such matters.  It is undoubtedly true that it is for the plaintiff to satisfy the Court beyond doubt that what he claims, he contracted for; and it appears to me that in this case he has failed to done so.

He proves through the witness Muns that he contracted with the defendants for them to press and pack waste silk at the rate of $2 per bale.  The witness says he had authority to contract, and that he did contract with the defendants on these terms, and that no mention was made of Insurance.  The plaintiffs then say that subsequently to this, but before any silk was actually delivered, one of the defendants represented that their godowns were insured, but as to the exact nature of this representation I am by no means clear.  I think however the course pursued by the plaintiff with reference to sending silk and taking it away again, rebuts the presumption that while it was in the defendants' possession, the plaintiffs concurring, it was covered by any insurance.  But even if this were not so, I should be inclined to hold that it was only so covered against any casualty by fire happening  during the time it was being pressed and packed, and that if allowed to remain after the process itself had stopped it was not so covered.  The facts show distinctly that the plaintiffs were in the habit of sending every day sufficient silk to fill the press, and that when it got empty they were so adviser and sent more, and when pressed, except on one or two occasions, they took it away to their own godowns, where they had a special insurance in respect of it.

Now I do not see why they did this, if it was as safe in the defendants' godowns as it was in their own.  The inference is that, the contract being only for pressing and packing, part for storing, they felt nit was uncovered except while being pressed and packed, and therefore took care that no quantity of undressed silk should be in the defendants' godowns either before it was wanted for the process, or after it was pressed and packed.  It is true that on one occasion 119 bales were left for a night in the defendants' godowns, in order that they might be more early shipped next morning, and that one of the defendants said they would be as safe as their insurance would cover them; but I cannot construe this into a contract that all future bales if left would be covered by the same insurance.  If the defendant had few goods of his own at that time in his godown the insurance might have been sufficient, but at another time he might have had it full, when the insurance would not have been sufficient.

It is true that the defendant Clark was not called; but this omission arose I think  from a mistaken idea entertained by the judges of the Provincial Consular Court, that the parties to a case are not themselves competent witnesses, as it is clear from the repiort that, when the absence of Abegg, one of the plaintiffs, was commented on by one of the defendants, he was informed that he would be allowed to call him for defence, thus braising the presumption that it was thought he could not depose to facts in his own behalf.  Moreover I am not disposed to attach much weight to what it is said Mr. Clark remarked after the fire.  My experience tells me that phrases and words are recollected with marvellous accuracy when an event has happened which gives to such recollection a great importance, and it is certainly not in my experience that men burdened already with a heavy loss are inclined to show any great readiness to assume additional obligations.  I don't say that the witnesses actually misrepresented what they thought Mr. Clark said, but I think the importance of the admission he is said to have made may have induced them to suppose that he said a great deal more than he actually did say.  Another evidence of an uninterested witness does not certainly support the view taken by the plaintiffs of what actually passed.

On the best consideration I can give the case, I cannot say that on the evidence I am dissatisfied with the finding of the Court below.  The whole case was before them.  There were two competent experienced mercantile assessors, and there was no want of talent shown by either party in respectively bringing forward their points and demonstrating the working of each other's case, and I think I am fairly meeting the justice of the case by dismissing the appeal, leaving both parties to pay their own costs of this appeal.  I am aware that this is an unusual course, but I think the appeal was a bona fide one, and that the appellants were entitled to take the opinion of the Court above.  In all three cases I wish it to be understood that in such contracts there should be no room for doubt.  If a man intends to insure he should say so, and take care by proper precaution to make it apparent to a Court of Justice that he actually did what he thought he had done or intended to do.]

Appeal dismissed without costs.

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