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Colonial Cases

Fung Ta v. Telge, 1891

[sale of goods]

Fung Ta v. Telge

German Consular Court, Shanghai
5 August 1891
Source: North China Herald, 7 August, 1891

Shanghai, 5th August.
Before Dr. Stuebfel, Consul-General, and Messrs. C. H. Overbeck and W. Meyerick (Assessors).
  The hearing of this case was resumed from the previous day. The claim was to recover the price of 40,000 superficial feet of best teak-wood, which the defendants agreed to purchase from plaintiffs through Hopkins, Dunn and Co., on 26th August, 1890, payment at the rate of 82 ½ candareens per cubic foot, on delivery within one month at Taku. The value of the timber claimed was Shanghai Tls. 2,822,23, but plaintiffs made a further claim of HK Tls. 109.89 under the following circumstances.
  They stated that, in accordance with the custom in Shanghai, when they delivered the wood they handed to defendants Customs passes to enable them to obtain the drawback on 3,420.89 cubic feet of timber re-exported, which, at the rate of 3 ½ candareens per cubic foot, amounted to HK Tls. 119.73.
  Instead of returning to the plaintiffs the passes for the remaining portion of  3, 235 cubic feet, the defendants, it was alleged, apparently passed the whole lot, thereby inflicting upon plaintiffs a loss of HK Tls. 109.69, the amount of the import duty paid by plaintiff s.
  In answer to this, defendants stated that they had returned the Customs passes to Hopkins, Dunn and Co., to be sent to plaintiffs, and defendants urged that it was not their duty to return the passes to the plaintiffs. With regard to the principal item of the claim, defendants alleged that on the arrival of the timber at Tientsin it was found to be badly rent, badly wormed, and to have a great deal of rot among it; and it was not marketable as good timber. Defendants paid Tls. 1,400 into court as representing the full value of their timber.  
  During the first hearing, the evidence of the head of plaintiffs' firm and their godown man was taken, to show that the timber was in accordance with the contract. Mr. Ottomeier, of the firm Hopkins, Dunn and Co., gave evidence with regard to the contract. One of the managers of the Kianguan Arsenal gave evidence as to having bought timber from plaintiffs and found it of good quality.
  Mr. R. E. Wainewright appeared for the plaintiffs, and Mr. H. Parkes Wilkinson for the defendants. Mr. Dzu Kit-foo acted as interpreter.
  At the opening of the proceedings on Wednesday a compromise was suggested, but Mr. Wainewright said he preferred calling further evidence before attempting a compromise.
  Mr. A. McLeod, member of the firm of Gibb, Livingston & Co., deposed that in June last year the ship Dorothy arrived to his firm with a cargo of 14,873 cubic feet of timber from Bangkok. The cargo was almost equally divided between plaintiffs and Boyd & Co., Plaintiffs paid 80 candareens per cubic foot, less a small reduction for short logs and planks. Plaintiffs took what was called "best selected" teak.
  Witness here explained, in answer to questions by the Consul-General, that there are four qualities of teak-wood.  The first, known as best furniture teak, which is selected as being in large planks free from knots, is worth 1 tael per foot; the next quality is best selected, 9 mace; the third, ordinary market teak, 8 mace. The fourth quality, the witness said, was very cheap and  was principally used in Hongkong.
  The Consul-General asked if plaintiffs could fill a contract for "best teak" out of what they received ex Dorothy.
  Witness replied that they certainly could not. They could supply good market quality at 82 ½ candareens, but he did not see how they could make a profit out of it, as they had to pay witness's firm 80 candareens per foot and defray expenses of landing. Witness could not say that plaintiffs, by agreeing to deliver "best" teakwood, were bound to deliver the best quality, or furniture teak. It depended on the interpretation of "best," Witness himself would never word a contract in that way. He understood "best" to mean furniture teak, the best of the four kinds.
  Plaintiff was recalled for further cross-examination, in the course of which he said that he did not know what was meant by "best" teak; but he knew that all his wood was good and it was for the purchasers to pick out what they wanted.
  Re-examined, plaintiff said there was no timber in his yard when he bought the Dorothy wood.
  The case was adjourned till Wednesday next, the Consul General expressing  a hope that in the meantime the parties would be able to come to an arrangement.

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