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Colonial Cases

Hey and Mur v. Harvie, 1885

[sale of goods]

Hey and Mur v. Harvie

Civil Summary Court
Mowat AJ, 29 June 1885
Source: North China Herald, 26 June 1885

Shanghai, 29th June, 1885
Before R. A. Mowat, Esq., Assistant Judge.
  This was a claim for $99.99 or the delivery of 140 cases of matches, sold by the plaintiff's request.
  Mr. Edmund Hey said he had sold 140 cases of matches for the defendant at public auction; and the defendant afterwards refused delivery of the matches, alleging that he had told Messrs. Hey and Mur's clerk that there was a limit of Tls. 6 per cent on the matches.  He had sold them at Tls. 4.40 and Tls. 4.45 per case.  He (Plaintiff) had on the 2nd inst. received verbal instructions from Mr. Harvie, no limit being mentioned; and he sold them on the 6th to Chinese purchasers, who had since been to him several times complaining of h non-delivery, and pressing him to take proceedings against Mr. Harvie.
  His Honour said the Chinese ought to have taken proceedings themselves and not Messrs. Hey and Mur, who were simply the auctioneer.  He suggested, however, that since Mr. Harvie was present, it would be better for him to agree to go on with the case rather than to go away and come back on another day in answer to a summons taken out by the Chinese.
  Mr. Harvie consented to go on with the case.  Having been sworn, he said he had instructed Mr. Hey to sell 150 cases of matches for him, and on the morning of the sale, Mr. Hey's clerk came to him asking for instructions; when he (Mr. Harvie) told the clerk that the matches were sold as nearly as possibly at the same price as the last, Mr. Hey having previously sold some for him at Tls. 6 and Tls. 6.20 per case.  The clerk who also asked him if the matches were damaged, and defendant said no, they were in the same condition as the ample which he had sent.  On the following Monday, a Chinaman brought him a bank order for several cases at Tls. 4.40 a case, and he (Mr. Harvie) refused to deliver the matches and wrote to Mr. Hey asking him if he had sold the matches. Mr. Hey replied in pencil in a chit-book that he had sold them at Tls. 404 and Tls. 4.45.
  Mr. Hey said he had been informed before the sale that the matches were damaged, and had twice been put up to auction unsuccessfully.  He therefore sent his clerk to ask Mr. Harvie if the matches were damaged.  The clerk did not go to receive instructions, but only to inquire if the matches were damaged.  He (Mr. Hey) saw Mr. Harvie on the following Tuesday (9th inst.) and Mr. Harvie then complained of the low price at which the matches were sold, but aid noting about having put a limit on them.  He heard nothing about the limit until he received a note from Mr. Harvie on the following Thursday.
  Mr. Harvie said he did not remember seeing Mr. Hey till the Thursday, when he spoke to him about the limit.
  His Honour a sked Mr. Harvie why, when he learnt that the matches had been sold below the limit, he did not at once write to Messrs. Hay and Muir and remind them that there had been a limit on them.
  Mr. Harvie said he did not think that Mr. Hey could possibly have sold them at such a price.
  His Honour reminded the defendant that he had admitted having received a note from Mr. Hey on the Monday informing him that the matches had been sold at Tls. 4.40 and Tls. 4.45.  He said Mr. Harvie did not seem to have acted in the way that a man would have acted if he had been perfectly straightforward in the matter.
  Jose B. da Roza, Clerk to Messrs. Hey and Mur, said he had been sent by Mr. Hey to Mr. Harvie on the morning of the 6th instant, to ask him if the matches were damaged.  Mr. Harvie said the matches was just the same as the sample; he said nothing whatever about any limit.  On the following Thursday witness went to see Mr. Harvie, and Mr. Harvie said Mr. Hey was a fool to have sold the matches at the price he had done.  Witness said Mr. Harvie ought to have put a limit on them; and Mr. Harvie replied that he thought he had put a limit on them.
  His Honour, in giving judgment, said he had no reason to believe Mr. Harvie rather than the plaintiff's witness.  Mr. Harvie's whole conduct made it appear to his Honour that the statement as to having placed a limit on the sale was an afterthought - that finding the matches did not fetch as much as he expected, he made this statement about having given the clerk a limit.  He therefore gave judgment for the plaintiffs.  He asked Mr. Harvie if he would consent to deliver up the matches; if not, His Honour would have to enter into the question of the amount of damages.

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