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Colonial Cases

Ilbert v. Evans, 1887

[sale of goods]

Ilbert v. Evans

Civil Summary Court, Shanghai
Jamieson AAJ, 5 August 1887
Source: North China Herald, 5 August 1887

Shanghai, 30th July 1887
Before Geo. Jamieson, Esq., Acting Assistant Judge.
  This was a claim by Messrs. Ilbert & o., for taels 21.33 from Messrs. Evans, Pugh & Co., for certain telegrams (and interest on the money expended thereon) sent by the plaintiffs to Japan some time since, in consequence of the non-fulfilment of a shipping order granted by the defendants for 100 bales of yarn per the s.s. Ghazee.
  Mr. J. A. Hawes, of the defendant firm, stated that he was away from Shanghai when the claim arose, and it was refused as being most unusual and against the ordinary practice of business.  It was the first instance he ever knew of such a claim being made.
  Mr. Joseph Beattie, a partner in Messrs. Ilbert & Co., sad that the claim was not pressed so much for the amount as for the principle involved.
  Mr. Beattie, having been sworn, stated that toward the end of last month Mr. Ilbert agreed with the defendants to take to Japan per the Ghazee, the yarn which had been purchased from Messrs. D. Sassoon, Sons and Co., and Messrs. Evans, Pugh and Co., thereupon granted a shipping order for the bales, at the same time informing Mr. Ilbert that the steamer would start for Japan in a couple of days.  The yarn was put into cargo boats for shipment in the Ghazee, but subsequently a notice was received from Messrs. Evans, Pugh & Co., to the effect that the steamer would not go to Japan.  But the defendants said that another of the same Company's steamers would leave for Japan in a few days and that the yarn could be forwarded by her.  To this the plaintiffs agreed provided that the defendants paid all the expenses incurred owing to the non-shipment by the Ghazee.
  The defendants sad they would pay for the boat and coolie hire, but not for the cost of the telegrams and interest incurred by the delay.  Witness's firm held that they should be indemnified for the loss owing to the non-fulfilment of the defendants' shipping order, as the goods were bought and paid for at the rime, and on the rate of freight to a great extent depended the selling price.
  Mr. Hawes said that he had frequently during his experience to shut our freight and forward it by other steamers at extra costs.  The occurrence was quite a common one.
  Hs Worship observed that there was a difference between shutting out cargo because a steamer was full, and doing so because it had been decided to dispatch the vessel elsewhere.
  Mr. F. da Fonseca was sworn and said that he had been in charge of the defendants' business during Mr. Hawes' absence in Hankow.  The Ghazee arrived in Shanghai in June with cargo for here and Japan.  Mr. Ilbert himself went to the defendants' office and engaged freight for 100 bales of yarn to Japan by the steamer named, and he received a shipping order for the cargo.  Instructions were afterwards received to the effect that the Ghazee would not go to Japan, and Messrs. Ilbert were informed of this, and told that the cargo would be sent on by another steamer in a fortnight.  There had been no date fixed for the sailing of the Ghazee nor was she advertised for Japan.
  Mr. Beattie handed his Worship a letter received by the plaintiffs from the defendants stating that the Ghazee would sail at daylight the morning after the mote was sent, and concluding that she could take as much (cargo) as the plaintiffs could send.
  Mr. Fonseca said that at the rime of writing the note the defendants had not been instructed as to the change in the Ghazee's sailing and they let the plaintiffs know of it as soon as possible.
  His Worship in giving judgment said that it seemed to him that if the defendants said a steamer would sail tomorrow they should be taken as meaning what they said, and if they made such an agreement they should carry it out as far as possible, although the law did not expect them to do impossibilities.  Bu if, as in the present case, they changed their mind as to the fulfilment of their engagements they should indemnify the plaintiffs for any loss they had incurred by the change.  There would be judgment for the plaintiffs with costs.

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