Volume Eleven - Pre-Victorian to the Present Day - some more aspects - A Dispute at Yokohama -  1889 . . .

For that, proposition counsel referred to Taylor on Evidence, 6th ed., page 716 and sec. 734. No objection was made to any other item in the account; therefore it was an account stated. Passing on to the question of the construction of the word “cost,” for the purpose not of the set-off but the defence, counsel drew attention to the clause of the charter party referring to the payment of the remainder of the freight on the right and true delivery of the cargo.

Of course the contract was made somewhere in England, but that clause had reference entirely to Yokohama; the contract was projected to Yokohama; the clause was for payment of the freight in Yokohama on the delivery of the cargo in Yokohama, for deduction of the cost should any be delivered short in Yokohama. If there was an ambiguity in a contract made in one place to be performed in another, the meaning of any word which was ambiguous must be construed according to its meaning in the place of its performance.

In support of this contention counsel cited Storey on Contracts, section 803. The reason for that construction was that the consignee was the person who had to pay the freight “less cost of coals delivered short” which would only mean cost of coals to the person, the consignee, who was paying the freight. He would deduct the cost of the coals and naturally the only cost he knew was what the coals had cost him. The other side suggested that there would be a difficulty in apportioning freight, it being a lump sum — if the defendants claimed a shortage.

Whether there would be any difficulty or not he was not concerned to enquire because he did not seek to apportion freight at all. He had proved what the cost was to the defendants; that their contract was made by Messrs. Pirie for coal and coke to be delivered in Yokohama; and had shown what they paid Messrs. Pirie for the coal and coke. What contract Messrs. Pirie made with the ship was no concern of the defendants. They did not seek to deduct anything from the freight payable by Messrs. Pirie to the captain. If necessary they might seek to do so, but in these circumstances it was unnecessary because they had paid Messrs. Pirie who had made the best terms they could with the ship.