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Colonial Cases

Moolataya Yuzo v. Kingdon Schwabe & Co., 1870

[sale of goods, non-delivery]


Moolataya Yuzo v. Kingdon Schwabe & Co.

British Court at Kanagawa
Lowder, 19 May 1870
Source: Japan Weekly Mail, 21 May 1870, 221




Thursday, 19th May, 1870.


Before Mr. Consul Lowder.


W. H. Taylor, Esq.,

G. Hooper, Esq., Assessors.


MOOLATAYA Yuzo, Plaintiff.


Kingdon Schwabe & Co. Defendants,

Mr. Barnard, appeared for the Plaintiff.

Mr. Marks, for the Defendant.


It appears that on the 11th day of January 1870, it was agreed that Plaintiff should buy from Defendant 8,000 piculs of rice, expected to arrive in the Olivier, at the price of $2.55, to be taken delivery of within eighteen days from her arrival in Yokohama, which was expected to take place in about 20 days. Two thousand dollars were paid by Plaintiff on the 11th of January, the vessel arrived with the rice, but defendants refused delivery, thereby inflicting loss upon plaintiffs, who now sue for $7,200 with interest and costs.

Mr. Barnard, in his opening speech, said his clients had fulfilled in every respect their part of the contract, and he trusted that defendants would be made to fulfil theirs. The defendants had thrown obstacles in the way of plaintiff. He should now call as a witness the plaintiff.

Moolatayah stated through an interpreter, in answer to Mr. Barnard; I made a contract with Messrs. Kingdom Schwabe & Co. That was on the 10th day of the 11th month (shown a paper and recognized it as the contract) Mohai, Noaki and Tobe went with me.

The following was the contract made.-We hereby acknowledge to have sold to Moolatayah 8,000 piculs of rice, more or less, per French vessel Olivier, to be taken delivery of by the said purchaser from alongside the vessel within 18 days of arrival at this port. The said vessel to arrive within 20 days from this date. lt is agreed between the said Moolatayah and ourselves that the price of the said rice shall be $2.55 per picul, to be paid by the said purchasers to us before delivery order or orders are handed to him.



Yokohama, 11th January, 1870.


Moolatayah's seal. .

(Mr. Barnard here asked if the defendant Mr. Kingdon might leave the Court, request refused by the Consul.

Exmn.-resumed: I paid $2,000 down at the time of signing the contract. (Box shown to witness.) This is muster given me by defendants compradore, as a muster of the 8,000 piculs I had bought, the seal was put on by the compradore.

A dispute here arose as to the legality of certain questions proposed by plaintiff's counsel to the witness.

Exmn.-resumed: I was to pay $2.55 per picul for the 8.000 piculs more or less. I flrst went to the defendants to enquire if the ship had arrived on the 14th of February or the 15th of the first

month. The time stated was 20 days after the contract was signed for delivery, and 18 days allowed. The defendant's compradore came to my house and asked me to come up, when Mr. Kingdon told me that the ship may be lost or rice damaged and wanted to cancel the contract and pay back the bargain money. I told him that I wanted to see the rice when it arrived, and if it was damaged I would take back the bargain money, but if good I would take the rice. I refused to take the money back then.

Mr. Kingdon did not ask me to pay more than the contract specified or say if I did I should have the rice. I was kept two hours waiting at the defendants office who went away and did not return. I left word with the compradore that I would take delivery on arrival if it was good. The contract was made in my name, but other Japanese were co-owners with me in the cargo, I went into the country on the 21st January and came back on the 12th February. I left the entire sum for payment for the cargo with Mohai, and instructed him to take delivery and store it at Kanagawa, paying the defendants what was due. I have a friend at No. 52 who informed me that the ship had arrived on the 23rd February, he had seen it announced in the papers. I sent Mohai on the morning of the 24th to the defendants to take delivery of the Rice. He came back and told me that Mr. Kingdon refused to deliver the rice, and if he liked he could go to the Saibansho. I did not believe this and went myself, but met the defendant's compradore, who told me that Mr. Kingdon would not deliver the rice and I could go to the Saibansho, I went at once to the Saibansho and made a complaint, (copy handed into Court). I sold 2,000 piculs to arrive soon after I had bought it, the remainder I should have held, as the price was rising. I could afterwards have sold it for $3.25 per picul if I had received it, this was on the 2nd of March.

By Mr. Marks. I do not know if there was a copy of the contract taken by Mr. Kingdon, (shown a paper) that is my signature I wrote that copy of the contract (translated by the Interpreter).

A great discussion here arose as to the legality of a question as to specification of time in the contract. Question allowed.

Examn. resumed. Mr. Kingdon said "put 20 days to the contract" Mohai went to the defendants house on the 21st day; I was in the country; I instructed him to pay the money and take delivery

within eighteen days after the arrival. On my return from the country, Mohai told me that Mr. Kingdon had said the ship had not arrived, but that he should be informed when she did arrive. There was nothing mentioned by Mohai about eight days more being asked for, on account of the Japanese holidays. Mr. Kingdon informed me when he made the contract that if the wind was

bad the ship might be ten or fifteen days longer than the specified twenty days. The contract was read to me in English, but I did not understand it. Mr. Kingdon read it to me. I should have taken delivery if the price of Rice had gone down instead of up. The Compradore came to Mohai's house several times and brought the bargain money, saying he wanted to break the contract, he was told by Mohai that they intended to hold to the contract until the ship arrived, but if the ship did not come in, he would take the bargain money back. He said, he would wait till he heard that the ship had sunk before he made up his mind about it. I was told this on my return from the country, Mohai was acting for me during my absence. Mohai further said that he would wait for thirty days and then if the ship did not come he would take the bargain money back. It was old Rice I bought. Court adjourned to 1.30 p.m.


Mr. Marks' Motion.

Points at Issue.

1st.- Was the contract, signed in duplicate on the 11th January, voided by any subsequent event, and when.

2nd.- Was the arrival of the vessel within twenty days an integrant part of the contract.

3rd. -Did defendants bind themselves that the vessel should arrive within twenty days. 

Case resumed at 1.30 p.m.

Mr. Marks made application that a motion which he handed into Court, might be entertained for the purpose of definitely stating the issues of the case.

Mr. Barnard strenuously objected to any such arrangement, as he should be prejudiced to a very great extent.

The Court ruled that the motion be dis-allowed.

Moolatayah re-examined by Mr. Barnard, I was distinctly assured that the ship would be here. So I waited for her.

By the Court: If the vessel had arrived within the stipulated twenty days, I would have taken delivery of the Rice. I did not intend to refuse to fulfill the contract, even if the rice of the Rice

had gone down. I would have taken it because I had sold some to a Japanese merchant, and did not want to break my engagement with him.Mr. Kingdon first offered to give back the bargain money on the 15th day of February I would not take back the bargain money because I wanted to see first if the rice was good. If the rice had been the same as the sample I would have taken delivery of it, if different or not so good, I would not. I have no copy of the contract in Japanese. The defendant's compradore interpreted the writing, but I did not understand it perfectly, as I did not know English, I signed it. The Compradore told me that the vessel might be ten or fifteen days over the twenty days, through bad weather, head-winds, &c. About the time the ship ought to have arrived, the price of rice was $2.80 per picul. Eighteen days after, the price had risen to $2.85 per picul. I was ordered by the Government to send Rice into the country, so would have been compelled to take delivery, if the price had gone down.

MOHAI being warned to speak the truth was examined by Mr. Barnard. I went to Messrs. Kingdom & Co. with the plaintiff to purchase Rice, it was on the 11th of January, I was a part contractor, or co-purchaser, although the contract was made in one name only, that of the plaintiff. I went to No. 89, on the 26th January, I saw the Compradore and asked him if the ship had arrived, and was told that she had not, the Compradare further said he would let me know as she ought to be in. The plaintiff was in the country, but he had given me the money and instructions how to act before he went. The contract was made in the presence of Mr. Kingdon, but the Compradore transacted all the business. On the day I went there to enqulre about the ship the Compradore left the house for a short time, but I could not tell if be consulted Mr. Kingdon. I went on the 29th and was told the ship had not arrived, I remarked that she was a long time in coming, the Compradore said he supposed she had met with bad weather. I went again on the let 1st February. I had part of the money to pay for the Rice at that time. I did not see the Compradore at this time and returned home, the Compradore came to my house in the afternoon, I asked him if the ship had arrived, he replied, No! Mr. Kingdon says as the contract time has expired he wants to annul the contract, and offered me the $2,000 back, I refused; as I was not the only party concerned and must ask the opinion of the others. I went the next day with two other men who were co-purchasers, the Compradore again told us that Mr. Kingdon wanted to break the contract, we replied that we would wait till the ship's arrival, as we had been told she may be ten or twenty days longer than the specified time in the contract and consequently refused to annul the contract and desired the

Compradore to ask Mr. Kingdon not to break it. I did not go to 89 again. I went into the country and did not come back till the 8th of February I went to Mr. Kingdon's on the tenth of February and was told by the Compradore that the ship had not arrived. On the fifteenth of Febry. Moolatayah came back from the country and we all went to Mr. KIngdon, being requested by the Compradore to come, we saw Mr. Kingdon who said the ship might be lost, such a long time having expired, and again wanted to break the contract. We agreed to wait and see if the ship did arrive, before we came to any conclusion in the matter. I heard the ship had arrived on the 23rd of February from Moolatayah, I went early the next morning to No. 89, and took the money with me. I

enquired if the ship had really arrived and was told by the Compradore that he did not know. I then went to the plaintiff and related what had passed. Moolatayah said if the defendant did not

deliver the Rice I should go to the Saibansho and complain, but he would first see the defendant, as he could not believe that he would refuse delivery.

By Mr. Marks. I did not ask for the eight days. I did not consider the contract broken as I had not got the bargain money back. If I had got it back, I should have considered the contract broken. It was offered to me but I refused. I would not have asked for the money back if the price of rice had gone down, because it was sold; or some part of is. If we had lost by the transaction of course

we could not avoid it.

By the Court: I did not make any further agreement, but told the Compradore, I should take delivery. I was prepared to take delivery after the twenty days had expired, having been told that

there might he a delay of ten or fifteen days, but if she had not come in for thirty days, I should have thought she was lost. I was not told by Mr. Kingdon that the ship had not arrived after she had; I did not tell Mr. Barnard to say so nor do I know that Moolatayah told him so.

By the Assessors : I did not after the 2nd February see Mr. Kingdon or have any communication with him on the subject till the15th. I did not see Mr. Kingdon after the vessel had arrived. I consider that I should have been compelled to forfeit more than the $2,000, if I had been unable to fulfill my engagements.

Mr. Dare called and sworn: On the 22nd .March the price of Rice is quoted at $2.87 a $2.95, on the 10th April, $3.5 a $3.12 1/2,  April 21st, $2.90 a $2.94 1/2. These are from the Chamber of Commerce market report. I get these quotations from reliable sources, they are only the prices of the day.

Mr. John Pitman, sworn: examined by Mr. Barnard.

The Olivier's cargo was ordered up by me, and consigned to Messrs. Kingdom Schwarbe & Co. I know that the defendants had made a contract with the plaintiffs for the delivery of 8,000 piculs of Rice, part of the Olivier's cargo. The defendants act as my Agents, They told me that this contract had been effected. I saw a copy in the letter book. The ship's cargo consisted of about 8,000

piculs net weight. I sold the cargo to two Japanese on the eleventh of Febry., it was sold to arrive in five days, the ship not coming forward in that time the Japanese demanded their bargain money

back, which I gave them. I afterwards let them have it at a reduced price, $2.72 1/2 per picul for 5,327 and the remaining portion 2,446 at $2.73 per picul. I sold it the second time because the first contract time had expired eleven days. I have never seen the plaintiffs in this case. I left my interests entirely in the hands of the defendants having the fullest confidence in their integrity. I am not aware that the plaintiff applied for delivery of the rice after the contract time had expired.

M.r Barnard here informed the Court that the difference in the price of the Rice, amounted to $1,500.

Examination of Mr. Pitman continued. Of course I considered the contract was broken between the plaintiff and defendant as the time had expired.

By the Court, I recognize this as the copy of the contract I saw in Mr. Kingdon's ofiice within a few days after it was made. Those blue pencil marks were there then I believe. I have had three

other contracts that have expired in a similar way and in which I have had to return the bargain money.

By Mr. Barnard, I will to the best of my belief assert that those blue pencil marks were on the contract when I saw it.

Court adjourned to 9.30 a.m. of the 20th instant.


Friday, 20th May, 1879.

Translation of the Contract.

Chinese old Rice 8,000 piculs at $2.55 per piiul, out of which $2,000. have been paid as bargain money. The above (is to arrive) in a ship, to be in port, twenty days from this date, from which

date, rainy days and holidays excepted, it is to be taken delivery of within eighteen days. It is agreed that the Rice shall be accepted as per muster. Dated this 11th January, 1870.

Ah Sing, the defendant's Compradore being warned. was examined by Mr. Barnard. (Shown a paper), I have seen this before, it is a copy of the contract, it is dated the 11th

day of January. Mr. Barnard here strongly exhorted the witness to speak the truth. I was not told by Mr. Kingdon that the contract would expire on the 31st January. Those blue pencil marks were not put on in my presence, but the were shown to me after the twenty days had expired. I was told by Mr. Kingdon to go to Moolatayah on the 31st and tell him that the time had expired and if he wanted the Rice he must make a new contract. Moolatayah requested me as the contract had expired to ask Mr. Kingdon to grant him eight days cumshaw. It was eight days after that I went to Moolatayah and told him to come and take back his bargain money. Mohai came to the ofiice and asked for eight days because of the holidays, that was on the 2nd of February.

Mr. Barnard here demanded that Mr. Kingdon should leave the Court. His Honour would not give any such order, as he considered by so doing he should be casting relections on his Mr. Kingdon's character, and he should not do so on any consideration whatever, for whatever his, Mr. Barnard's opinion may be of commercial morality in Yokohama, he was happy to say that his widely differed, for during the ten years he had been in Japan, the generality of merchants he had met with, were most upright and honourable.

Examination resumed, I forget the date that Mohai came to the ofiice, but it was not in January, it was on the 1st or 2nd of February. Here there was great difficulty in making the witness understand, the learned gentleman's pigeon-english being defective, the matter was fully explained, however, by Mr. Hooper one of the Assessors.

I went several times to Mohai's house with the bargain money. On the 15th of February I went to Moolatayah's house and asked him to come to No. 89, to take back the bargain money, Moolatayah refused, saying he wanted the Rice. I told him Mr. Kingdon said if he wanted the Rice he must make a new contract, at the present market rate. I told him when the contract was made that I would come and tell him if the ship arrived, but after the twenty days had expired the cargo did not belong to him so I did not go. On the 24th February Mohai came to the ofiice and

asked if the ship had come; I told him she had. Mohai did not ask for the Rice. He was not told to go to the Saibansho for redress. The market price of Rice on the 15th of February was $2.75 per picul; it was about the same when the ship arrived. I went on board the ship. The Rice was not damaged. There was about 8,000 piculs in the ship. (Shown the muster in the box). That is a sample of the Rice in the Olivier. The box was scaled up by Mr, Schwabe, I put the writing on it.

By the Assessors, I heard the contract read at the time it was made, Mr. Kingdon did not say anything about ten or fifteen days longer in case the ship should meet with bad weather and not

arrive. The bargain money was not offered to plaintiff before the 8th of February. I only went to him to ask that a new contract might be made on the 31st January.

Mr. Barnard here wanted to call Mr. Kingdon as a witness for the plaintiff, this was strongly objected to on the part of Mr. Marks.

Court adjourned to 1 p.m.

Case resumed at 1 p.m.

Mr. Marks addressed the Court as follows :-

Sometime towards the end of December 1869, the defendants were commissioned by Messrs. Pitman &. Co. to purchase rice in Saigon, this was done to the amount of 8,000 piculs and sold by

defendants at $2.56 per picul to arrive in Yokohama. The rice was shipped in the Olivier. There was a contract drawn up between the parties, specifying a certain time for this vessel to arrive. This specified time having expired and the vessel not arriving, the defendant sent to plaintiff and wished to make a new contract, this was declined by the plaintiff, who instead asked the defendant to give him eight days longer time, as there was a probability the ship may come in during that time, these eight days also elapsed; when defendants made out a cheque for $2,000, and sent it to plaintiff for

his acceptance and for the purpose of annulling the contract, this the plaintiff or his agent would not accept. On the 18th of February plaintiff went to defendant's house and asked if the ship had arrived and was told she had not, and his contract having expired his bargain money was offered to him, but he refused to accept it. The ship arrived on the 23rd February and Messrs. Pitman

and Mackintosh demanded the rice should be handed over to them the defendant's having failed to dispose of it. This was accordingly done and the rice was sold by Messrs. Pitman & Co. to two other Japanese. There is an impression existing among a great many people that in all contracts entered into by Japanese and Foreigners that the Japanese are invariably the losers, this I certainly deny; having, during my residence here, been professionally engaged on both

sides. Let the foreigner enter into a contract with a Japanese and in any way fail to complete the same, he is immediately brought before this, or one of the other Consulate, and generally gets the

worst of it. On the other hand, if the Japanese fails to complete his bond, he either goes up the country or hides himself in some way, and if application is made to the Saibansho for redress

the plea is that the Japanese did not understand the contract, or some such paltry excuse.

Mr. Barnard  here protested against his learned brother making any such observations as they were altogether irrelevant to the case.

Mr. Marks requested that the Court would interfere and prevent Mr. Barnard from interrupting in such a manner. The Court pleaded its inability to stop Mr. Barnard, having repeatedly desired

him not to interrupt, but it was entirely useless, and their only remedy was to sit patiently until he had finished.

Mr. Marks continued: I maintain that this specified time, viz., twenty days is a precedent in this case, and this time having expired the whole contract was null and void.

Mr. Kingdon called by Mr. Marks.-I am a Senior partner in the firm of Kingdom Shwarbe & Co., (shown a paper) I recognize that as a copy of the contract. I had no conversation with the

plaintiff before the day on which the contract was signed, on that day there was some conversation relative to the purchase of the rice. I told him the ship left Saigon on the 13th November, and the chances were that she would arrive within twenty days, he wanted a specified time and we ultimately agreed to twenty days, with eighteen days to take delivery after ship's arrival. That is the

general form of contract. The meaning of that sentence in the contract is that if the Ship arrived within that time the Rice belonged to plaintiff. The whole thing was fully explained to plaintiff. I did not intend to guarantee the arrival of the ship. The contract expired on the 31st January. On that date I told the Compradore to go to the plaintiff and tell him the contract had expired, and to come to the office in order to take back his bargain money or enter into some new arrangement, and that he should have a preference over any other intending purchaser. He did not come that day, but the next day Mohai came and was brought into the office by the Compradore who told me that he wanted to speak to me about the contract, and that Mohai wanted a "kumshau" of 8 days more. I

explained to him that the term of the contract had expired, and they had no further right to the Rice and offered him back his bargain money, but if he wanted the Rice he must make a new contract,

Mohai replied that he could not act without the consent of his partners, but asked that the eight days may be allowed, as the Japanese holidays were taking place, I gave him the eight days and he expressed his gratitude and left. On the 8th day of February a cheque was made out for the sum of $2,000 and sent by the compradore to Moolatayah. The Compradore came back saying that he could not be found. During the whole of that week the Compradore went regularly to Moolatayah's house, but could not find any one but an old woman there. On the 15th February they all came together to No. 89, and told me they would take the Rice when the ship came

in, if it was good, but if it was bad they would not; I again told them that their contract had expired and the Rice not being my own I could not make any arrangement with them different to what I had

already told them. They did not come for the Rice on the day the ship arrived, but two or three days afterwards some Custom House officers came and asked me to come to some amicable arrangement with the plaintiff, I refused to give them any explanation of the matter. I went to the Saibansho to see Moolatayah, to make sure that the bargain money had been offered him, he was there, I tendered the cheque to him which he refused. I had a contract. similar to this in the "Bonito." The contract in that case was made with one Yusattai Sadakichi. The plaintiff's never came to me and offered the balance of the money or asked for the delivery of the Rice.

By Mr. Barnard, I did get a petition or something of the sort, but that was some very long time after all the accounts had been settled up. (shown a paper) Yes! I believe that is the paper that came to me on the 24th March, I see that it is dated the 23rd February. I did not know it before. I handed it over to Messrs. Pitman & Co., to answer, as they were the real owners. It was some two or three days after the arrival of the ship that I handed over the cargo to Messrs. Pitman 5 Co. I got a guarantee from Messrs. Pitman & Co. certifying, in case any suit was instituted that I should not suffer. The plaintiff's never asked me for rice at the and of the twenty days, they wanted the rice by the Olivier, and never asked for any other. The man whom I made all the arrangements with was Mohai, I do not remember seeing the other man Moolatayah, until the 15th of February. I certainly do not think, in fact I am convinced that the plaintiff did not expect to get the rice after the twenty days had expired at the time they made the contract. They stipulated expressly for 20 days. The proposition came from the plaintiffs. I did explain the nature of that clause, they were fully alive to it themselves. They came on the 15th February. That was the first time they had refused the bargain money in my ofiices. It had been taken to their house by the comrpradore several times but he could not find any one to give it to. I will swear that Mohai asked me to extend the time by eight days.

Mr. Schwabe, sworn and examined by Mr. Marks: I made this annotation about five days after the contract was signed for my own guidance.

By Mr. Barnard, I was present when the contract was made. I did not understand Japanese so Mr. Kingdon arranged the matter and explained it to me afterwards. I know the clause about the

twenty days was fully explained, the proviso was not put in, that if the ship did not arrive within the specified time the contract was null and void. All our contracts are made similar to this one. I am sure the plaintiffs would not have taken the rice if the markets had gone down. I was present on the 15th of February when the plaintiff came, I heard Mr. Kingdon offer him back his  money, as it no longer belonged to us the contract having expired.

Mr. Robison called and sworn, I have been seven years in Japan and had considerable experience with the Japanese in business matters. With regard to the clause in the contract about the twenty days, I do not look upon it as a guarantee that the ship should arrive in that time. Messrs. Kingdon & Co. could not guarantee any such thing.

His Honour before giving judgment said he wished to make a few remarks.

It is always customary for a Counsel in opening his case that he be careful not to make any observations, but what he is prepared to prove. The Counsel for Plaintiff in his opening speech impeached the character of the defendant as a merchant, and imputed a want of commercial integrity to the Europeans in Yokohama. Such remarks were entirely uncalled for, and I must say that such accusations are entirely without foundation; and I trust that these

remarks may have the desired effect, and act as a warning for the future.

Mr. Barnard in answer to his Honour said that the nature of the instructions received from his client, led him to believe that the defendant had acted in a manner towards him different to what

he ought to have done, and he thought he should have been able to prove it.

Judgment for defendant's with costs.



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