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Colonial Cases

Tsung Kee v. Overbeck, 1870

[sale of goods]

Tsung Kee v. Overbeck

Prussian Consulate Court, Shanghai
9 July 1870
Source: The North-China Herald, 22 July 1870



July 9th, 1870.

Before             W. ANNECKE, Esq., Consul-General.

Messrs. PROBST and TEIGE, Assessors.


   Mr. Bird for plaintiff.

   Defendant in person.

   This was an action brought to recover the sum of Tls. 304, paid by Plaintiff under a contract for the purchase of a quantity of Shirtings - which sum he claimed to have repaid to him on the following grounds:-

   Plaintiff contracted to purchase from Defendant 40 bales or Shirtings, "to arrive;" delivery of the whole to be taken within two weeks after ship's arrival.  Plait biff paid Tls. 100 bargain-money; and after ship's arrival, took delivery of two bales, paying the price, Tls. 204.  It had been agreed that Plaintiff might take the goods, on paying the price, in such quantities as suited him.  On inspection, these bales were found to be mildewed, and were therefore forthwith returned to the Defendant.  Also, 18 other bales in inspection proved to be in the like condition.  In short, the defendant admitted in Court that all the bales were mildewed.  The Plaintiff therefore threw up the contract, and demanded a return of the money already paid by him.

   The defendant, however, declined to make such repayment, on the ground that Plaintiff had not come to inspect or take delivery of 20 bales - portion of the 40 bales contracted for - until nearly a week after the two weeks allowed by the contract had elapsed.  The Defendant had, in consequence, to sell the goods at a later date than he would have been able to do, had the Plaintiff come to take delivery within the stipulated time; and as there was, in the interval, a fall in the market, Defendant alleged that he had incurred a loss of more than Tls. 300.

   Mr. Bird, on behalf of the Plaintiff, contended that the contract for the purchase of 40 bales was entire, and that as the Plaintiff had inspected one-halt and found the same to be mildewed, he was justified in throwing up the contract.  He also submitted that, inasmuch as the Defendant was not bound to hold the goods, but might have sold them immediately the time for taking  delivery of them had expired, yet notwithstanding had chosen to hold them in a declining market, the loss must be borne by him, and not by the Plaintiff.  He added that he was instructed by his client to say, that so soon as an order had been given, the Plaintiff had gone to inspect the remaining twenty bales.

   The defendant maintained that the Plaintiff had broken his contract, in not clearing away, or coming to inspect for that purpose, the remaining 20 bales, within the stipulated timer.  The defendant did not adduce any evidence of the actual fall in th4 market; but

   The Court decided to allow the Defendant to deduct the amount of the loss occasioned by the Plaintiff's not coming to take delivery of the 20 bales within the contract time, by estimating such loss at the actual decline of the market, during the interval which the Plaintiff permitted to elapse, after the expiration of the two weeks, before coming to take delivery.  The Court took time to consider the exact amount of such loss.

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