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1 correction by markauturnbull - Show corrections

"FULL COÜBT.

' (Before Slr'Wm. Cullen, C.J., Nr. JuBtlce

Pring, - and Mr. Justice Wade.)

GOODS LOST IN TRANSIT.

Malick v Ayers and James Propty., Ltd.

An action was recently disposed of by Mr. Justice James and a jury in which Constan- tine Nicholas Malick, trading as Stanton, Mallck, and Co, merchants, claimed -5350 lompensation irom Ayers and James Proprie- tary, Limited, importers Plaintiff; stated that ho agreed to purchase from the defendants a, quantity of Bilk-cotton stocltings, to be ship- ped from America through a New York firm. It was agreed that tho purchaser should meet drafts after the goods had been shipped, cover- ing their value with freight and insurance on 3>iesentation of tho shipping documents A consignment was bhipped on September 13, -"IS, by tho steamer Tamar, and on arrival in Pjdnoy ono of tho cases was missing. A draft < ovuring the missing case had in the meantime hoon'met by tho plaintiff A second consign- ment' ivas forwarded, a draft presented and liouourcd, and ag.in a case of the goods was

fuiind to be short. Each case was supposed I to havo contained 200 dozon btockings Plain- ¡

tilt claimed lo recover the value, and the ae - tion arose, tho principal question for dcter

uination being whether, under the contract, it v_s reasonable and proper tor tho dofondants < to tako steps through their agents in America

to seo that the goods were declared, and ship- I red undei a special contract of affreightmeut, | giving protection under sec 42S1 of the United States Revised Statutes Defendants denied contracting as alleged, and pleaded exonera- tion and discharge) from tho promise and per- formance oi*" it, The parties had apparently been trading for a number of years on a parti-1 cular bill"" of lading and form of contract habitually used, and It was provided in the contract In dispute that tho goods should be delivered by the shippers "a3 usual " Under the American law, silk stockings are includ- ed amongst a number of articles ennumerated, for the loss of which tbo master Bnd owners of Vessels Bball not bo ordinarily answerable. Tho trial judge held that the plaintiffs direc- tion that tho goods were to be "delivered by the shippers as usual" relieved the defendants of the liability ol going into any special form of contract, and, therefore, diroctcd a verdict for the defendants on certain counts of the declaration, and non-suited on others. This decision was appealed from on Beveral grounds, it being contended that his Honor sbbuld have ruled that nothing In the evi aenco adduced by the plaintiff or ia cross examination of plaintiff's witnesses prevented lilm from recovering against the defendant for omission to make a proper contract of af- freightment or for malting what would bo an ?unreasonable contract of affrelghtraont. Mr. Langer Owen, K C, nnd Mr. Halse Rogers (in- structed toy Messrs. Sly and Russell) appeared for tho plaintiff (appellants); and ,Mr, Alec Thomson, ICC, and Mr. Harrington (instruct- ed "by Messrs. Perkins, Stevenson, and Co )

for the defendants (respondents). \

The Court unanimously dismissed the appeal with costs against the plaintiff In the course of his judgment, the Chief Justice sala that on the law applicable to the case he

did not think thero was any dispute between, tho parties. In the Sale of Goods Act, which > was espressivo of the common law on the ¡subject, it Wa3 laid down in Halsbury that unless otherwise authorised by the buyer, the seller must make such contract with Hid carrier on behalf of the buyer as may be trnsonable, having rogard to the nature of

the goods and other circumstancos of the case ' Tho question in this case was whether the .oller was authoriicd to make the contract

of affreightment In the form in which ho i dUl The contract ¿or sale contained the ' expression) "as usual" under several heads in the printed form, such as "goods dollverod," "mark," and "insurance" with tho addition of "Including war risk" Looking off hand at tho conti act, it would be a matter of evid- ente, tho expression "as usual," admitting a different interpretation as to whether the parties meant that tho delivery by the ship- pers should ho in accordance with the prac- tico followed by them in tho caso of previous orderb by the plaintiff, or whether it meant tho practico which was usual at tho poit i.f bhipment in the case of similar goods But Hie case below was clearly fought out on tho assumption that tho expression meant, "as uiual between the particular parties to tho contract in previous transactions between Hiern" That won put beyond doubt by tho leport In the transcript of what happened when tho Judge at the trial was disposing of tho caso, and refusing to send it {o Ino jury Lest tuoro had been any inaccuracy In the transcript report the Court had re- ferred to the Judge, who reported that from beginning to end the case was contested on the basis that the expression in the contract had reference to the previous dealings be- tween tho parties. Under these circumstances, although tho interpretation of a contract w is primarily a question of law, but in cases of ambiguity might be only resolvable by tho

decision of a Jury where different 'meanings might bo possible, it was hero perfectly clear that it was,open to the plaintiff to bind himself by that particular iutorprotation of tile contract. The question, therefore. Was what was the result of the contract being interpreted , in that- light? On a review of th'o evidence on both sides it was plain that the usual way in which the shipper had' the

1 goods shipped was on a bill of lading in the I

form in which the present one was put; and

that the shipper did not qualify by paying!

a higher amount of froight to get his rem- edy against tho ship, having in view the pro- visions of tho United States statute. His Honor on other points upheld the trial Judgo's action and directions, and was supported by ' Mr. Justice Pring and Mr. Justice Wade.

(Before Sir "Win. Cullen, C.J., Mr. Justice

Ferguson, and Mr. Justice Wade.)

ARBITRATION SETTLED.

Grifllth v Upton.

Tho parties appeared by counsel on tho re- turn of a rulo nisi granted last term, in which Arthur Griffith, cx-M.L.A., and Rupert Smythe, of Katoomba, newspaper proprietor, were called upon to show cause why an award made by Mr. Smytho in an arbitration should not bo set aside. .The disputo was in connection with a lease by GrifDth of a poultry farm at Medlow, known as Wcstmeado Farm, and the applicant for the rulo. Rupert Henry Upton, alleged that the award was improperly pro- cured, and that tho arbitrator had transgress- ed tho rules in his conduct of the arbitration. llr, Jprdan (instiuctod by Mr. A. II. W. Baum), ?who appeared for the respondent, announced . that his client did not dcBiro to pross his

application for tlio enforcement of the award, nor 'did ho propose to oppose the application that the a*\ard should be tut aside. Counsel

added that nr, the grounds of tho application I for the rule alleged mibconduct on tho part of the arbitrator, although there had boon un-

doubtedly technical irregularities, there had1 boon nothing in tho nature of collusion or improper conduct on tho part of Mr. Griffith and the arbitrator. It appoared that accept- ing an invitation' ftorn tho arbitrator to in- terview hlra% his client did so, and the otber party also, and corluiu communications wore

nudo which wero not made known to (ho rt spectivt) disputants. Tho irrogularlty was tluo merely to tho fact that tho arbitrator was not familiar with the practico, and, It waa tlosliod to cvonorato him from any charge of " intontlonal misconduct in the mutter. Mr.

Novillo Mcwilliam (instructed by Mr. R. A. Monro King), who appeared for tho appli- cant, said that his client imputed no dis- honesty or corruption to tho arbitrator.

The motion to enforce tho award was dis- missed with costs, and the motion to set it asido mado a*bsoluto. ' '

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