Lark International Ltd v. Fu Man Leong

Case No.HCA 15/1977

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCA000015/1977

IN THE HIGH COURT

	1977 No. 15

BETWEEN
	LARK INTERNATIONAL LIMITED	Plaintiff
	and
	FU MAN LEONG (carrying on business as NAM SHAN TRADING CO.)	Defendant

Coram: Zimmern, J.

Date of Judgment: 13th December, 1978.

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JUDGMENT

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1. The Plaintiff by its Statement of Claim claims against the Defendant damages for breach of a contract in writing dated 22nd July, 1976. The breach complained of was that the Defendant under the contract agreed to sell and the Plaintiff agreed to purchase 37,000 yards of cotton indigo dyed denim at a price of $6.30 per yard on f.o.b. Hong Kong terms and paragraph 4 of the Claim goes on to allege:

	"In pursuance of the said contract, on or about the 4th September, 1976, the Defendant and/or its agent delivered to Modern Terminals Limited container terminal at Kwai Chung for shipment abroad the vessel "Far East Friendship" one fully loaded container, stated by the Defendant to contain 445 rolls of denim, and 22 loose rolls of denim.
	In breach of the said contract, the Defendant delivered only 427 rolls containing only 31,953.9 yards of denim."

2. Two contracts were exhibited. One cursory glance of the 1st contract which is exhibit A-14 shows that it is not an f.o.b. contract at all. Indeed the contract is completely silent as to the place of delivery. Be that as it may a few days later the Plaintiff sent the Defendant its own contract form dated 22nd July, 1976 which originally as typed and signed by the Plaintiff shows the following - unit price $6.30 per yard f.o.b. Hong Kong, port of discharge: Osaka, Japan, shipping date 10th August, 1976 (sea) in containers. Upon receipt of this document Mr. Fu of the Defendant told the court that he telephoned a party in the Plaintiff's offices and said that if f.o.b. Hong Kong there will be no contract between them. He, by means of typing, obliterated the words "f.o.b. Hong Kong" and the words "Osaka Japan" and added the words "Ex Godown" on the face of the contract, signed and returned the form to the Plaintiff who did not complain.

3. On the face of the 1st contract there is no express term as to the place of delivery. The law provides the answer by section 31 of the Sales of Goods Ordinance:-

"Whether it is for the buyer to take possession of the goods or for the seller to send them to the buyer is a question depending in each case on the contract express or implied between the parties. Apart from any such contract express or implied the place of delivery is the seller's place of business if he had one and if not his residence."

The second contract reads "Ex Godown". There can be no doubt that it was up to the Plaintiff to take possession of the goods. Be that as it may just before shipment and I accept this from Mr. Fu the Defendant, the Plaintiff asked him to deliver the goods to the Kwai Chung Terminal. If I were to accept that delivery to Kwai Chung Terminal is delivery to the carrier then section 34 of the Ordinance would apply but in respect of this case and on the evidence I do not think it makes any difference. Section 32 provides:

"Where in pursuance of the contract of sale the seller is authorised or required to send the goods to the buyer delivery of the goods to a carrier whether named by the buyer or not for the purpose of transmission to the buyer is prima facie deemed to be delivery of the goods to the buyer."

4. It is the evidence of Miss Lai called by the Plaintiff that she requested the Defendant to deliver the goods to Kwai Chung Terminal and to contact a Mr. Chau Wah. There is no conflict of evidence here at all between the Plaintiff and the Defendant. The Defendant told the Court how he collected the goods in two lorries from two different sources which lorries converged on to Kwai Chung Terminal. There Mr. Fu contacted Mr. Chau Wah whom having seen the shipping order prepared by the Plaintiff and collected by Mr. Fu directed him to deal with a Mr. Leung. Mr. Chau Wah gave evidence, and his recollection of events differed very substantially from that of Mr. Fu. Without for a moment saying that Mr. Chau Wah had lied, it is clear to me watching him as a witness that he had not the faintest memory of the details of this case. He just looked at the documents including the drayage receipt A-48 and told the Court what ought to have happened. I do not accept his evidence where it conflicts with Fu's. I accept the evidence of Mr. Fu. He said the pieces from the lorries were loaded on to a container. He counted the pieces from one lorry with Mr. Leung and Mr. Leung counted the other (Fu knew the number of pieces in that one) and when the container was full there were 22 pieces left. Mr. Fu went to consult Mr. Chau Wah and Mr. Chau Wah spoke to a Miss Kwan of the Plaintiff and then he told them that the balance of 22 pieces might go by Consolidated Container. Nothing in this case turns on the 22 pieces as they arrived in Japan. It is the evidence of Mr. Fu that when the container was full all 467 pieces had been loaded less 22. Before he left to see Chau Wah about the 22 pieces Leung had closed the container but upon his return the container had been locked or sealed. I am not concerned with how the 40 pieces were lost. I am concerned with the contract in this case as to whether Chau Wah and/or Leung received 467 pieces from Fu, the Defendant.

5. On the evidence I hold that they or either one of them did and it could not have been otherwise because the shipping order which had been made out by the Plaintiff and handed by Fu to Chau Wah was amended to read from 467 to 445. The Measurer's Sheet, the work of Leung reads 445, the Dock Receipt was amended from 467 to 445. Furthermore Fu gave evidence that he saw Leung signing the amendment in the shipping order. It is not a question of identification of the signature. It is a matter of the witness saying "I saw him sign". I see no reason to disbelieve him and I therefore hold that the Plaintiff's claim in respect of the loss of 40 pieces fails. The Defendant had complied with his obligation by delivery of the 467 pieces to the Plaintiff's agent at the Terminal. He was not concerned with the contract between the Plaintiff and the Shipping Company. As regards the shortage of 1,000 odd yards it is another matter altogether. Chau Wah and Leung or either one of them received the goods from the Defendant on behalf of the Plaintiff but they did not accept the goods. There is a world of difference in a matter of this nature between receipt and acceptance. I was hesitant over this matter until I was reminded of the Plaintiff's packing list which had given a lot number to each piece which the Defendant's packing list did not do so. Less the 40 pieces missing the Japanese surveyors checked the 427 pieces and found a shortage of 1,244.6 yards. It is clear that the Defendant never measured these individual pieces and the only evidence called by the Defendant on these pieces is the last witness, a Miss Chiang Lai Kuen. She said she had made the packing list but the yardage per piece was marked by the workers. The evidence shows that these goods were woven by East Asia and then sent to Tak Man for pre-shrinking. It is impossible to say on the evidence whether the pieces were measured before or after shrinkage or indeed when in the process of shrinking. I accept the Japanese measurements and I find that there was a short delivery of thousand odd yards and the Plaintiff succeeds in its this claim. There will be judgment for the Plaintiff in the sum of $8,089.90 but as far as costs are concerned the Plaintiff would have to pay the Defendant 75% of his costs of this action. Almost the entire time of this trial was devoted to the Plaintiff's abortive first claim which was not supportable by the contracts or evidence. The second claim on which it succeeded could have been disposed of in the District Court in half a day.

Representation:

Patrick Fung (Johnson, Stokes & Master) for Plaintiff

William Stone (Chu & Lau) for Defendant.