ARTSCO PRODUCTION (a firm) v. FAT EAST TRADING CO (a firm)

Action No. 6938/82

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. The plaintiff's claim against the defendant is based on a contract dated the 6th March, 1982 whereby the defendant agreed to pay to the plaintiff a service fee of $2.00 per radio set which the plaintiff arranged with the Skilful Screen Printing Co. Ltd. (hereinafter referred to as Skilful) to supply to R. J. Reynolds Tobacco Co. (H.K.) Ltd. (hereinafter referred to as the buyers). He claims that he is entitled to $42,768.00 for 21,384 radio sets which he arranged with Skillful to be supplied to the buyers, and to a further sum of $4,276.80 being half of the extra charges incurred in the manufacture of the said goods for printing instruction leaflets and supplying belts of the carry cases for the radio, pursuant to a term of the contract whereby the parties had agreed to bear extra charges in equal shares.

2. The defence avers that under the terms of the hire contract, the plaintiff "agreed to act as a service agent for the defendant in respect of 25,000 sets AM/FM stereo radio, Model No. SFS-107, with headphone Model No. S-2 in a bargain between R. J. Reynolds Tobacco Co. (H.K.) Ltd., the defendant and Skilful Screen Printing Co. Ltd., at $2.00 per radio set." It is averred that it was an express term of the said contract that it was to be valid only when the defendant received the purchase orders and L/C from the buyers, which the defendant denies it received for the goods described in the contract, hence liability is denied. Alternatively, it is denied that the plaintiff "duly arranged for the supply of 21,384 sets or any part thereof", and the claim for extra charges is denied also.

3. In its reply to the defence, the plaintiff avers that the model No. "SFS-107" for the radio as stated in the contract was "a mere typo-graphical error", this model being the same as model SAFS-107 which was in fact supplied. It is averred that Skilful produced only one model of AM/FM stereo radio, which is called by various model numbers, including SAFS-107 and SFS-107. The plaintiff claims that the quotation rendered by Skilful to him dated 17th February, 1982 and the quotation rendered by the plaintiff to the defendant dated 1st March, 1982 and the hire contract were all made on the basis of the sample radio which Skilful supplied to the plaintiff. Regarding the earphones, S-2, the plaintiff averred that it is the same as E-5, save with minor alterations required for by the defendant as a variation of the said agreement. The plaintiff maintained that the purchase orders of the buyers and the letter of credit they opened related to the bargain referred to the agreement. And the plaintiff averred that the model numbers of the radio and the earphone were not material terms and, in the alternative, the defendant is estopped from denying liability under the said agreement.

4. The following three major issues were agreed by the parties:

5. 1) Whether the hire contract related to model SFS-107 or SAFS-107, and indeed whether there is any difference between the two;

6. 2) Whether the earphone models S-2 and E-5 are the same; and

7. 3) Whether it was agreed that extra charges incurred in the production of the goods were to be borne equally between the parties; and whether those charges have been paid by the plaintiff.

8. LAI Kar-man (P.W.1) is the sole proprietor of Artsco Production.

9. WONG Chiu-hon, also referred to in these proceedings as Stanley Wong, (D.W.1), is the sole proprietor of the defendant firm, Far East Trading Co.

10. It is not disputed that these two gentlemen had worked together in 1976 as colleagues for some two years with the American Express, where P.W.1 was the senior authoriser in the Authorisation Department.

11. In January, 1981 when D.W.1 joined the South China Morning Post, he stopped operating his business. At the material time he was the Advertising representative of the Morning Post. Around the 9th or 10th February, 1982 he went to the buyers to discuss the sale of advertising space in the Morning Post and saw the Marketing Information Manager, Norman Lo (D.W.2) who told him that his company were interested in obtaining portable radios with headsets in the promotion campaign of one of its brand cigarettes, CAMEL. D.W.1 said that the kind of radio the buyers wanted was the 'walkman' type, of which the estimated requirement was given as between twenty thousand and thirty thousand. D.W.1 then approached P.W.1 to whom he suggested that, as he did not have the time to look for factories, they should work together, that is, P.W.1 was to look for a factory. It is common ground that at this initial stage there was no mention of any fees to be paid to P.W.1. P.W.1 agreed and proceeded with the search of a manufacturer. He found Skilful and, during the period 17th February until the 4th March, 1982, obtained certain sample radios with headsets and quotations which he gave to the defendant. On 6th March, 1982 P.W.1 prepared two contracts, both headed 'Hire Contract', one with Skilful (Ex. P12), the other with the defendant, which is Ex. P13. The former refers to the plaintiff's commission to be paid by Skilful of $4.70 per radio set, the latter to a service fee to be paid by the defendant of $2.00 per radio set. The contract with the defendant states:

"HIRE CONTRACT"

"Artsco Production is hired by Far East Trading Company as a service agent in a bargain between R. J. Reynolds Tobacco Co. (H.K.) Ltd., Far East Trading Company and Skilful Screen Printing Co. Ltd.. For this bargain, R. J. Reynolds Tobacco Co. (H.K.) Ltd. orders 25,000 sets AM/FM Stereo Radio (model No. SFS-107) with Headphone (model No. S-2) thru Far East Trading Company from Skilful Screen Printing Co. Ltd. Artsco Production is fully responsible for manufacturer source research, communication, paper works, production supervision and delivery.

Far East Trading Company will pay Artsco Production HK$2,00 for each radio set totally amounting HK$50,000.00 as service fee. Artsco Production will issue invoice for immediate individual payment after every partial delivery. By return, Artsco Production will share any lost (sic.) caused by this bargain with Far East Trading Company equally.

Finally, Far East Trading Company also agrees that Artsco Production will still be its service agent at the next bargain if R.J. Reynolds Tobacco Co. (H.K.) Ltd. repeats order and Artsco Production still shares the benefit mentioned above.

 

12. It is not disputed that on the 8th March, the buyers issued three purchase orders to the defendant.- Ex. D8 (A-C) - dated the 8th, 10th and 12th March, the quantity being 10,000; 8,000 and 7,000 sets respectively. These purchase orders are based on the defendant's quotation of the same day, Ex. D7, which he handed to Mr. Michael YEUNG, the buyer's Product Manager. The description of the goods ordered is set out as follows:

"Model SAFS-107 AM/FM/Stereo 2 Band Receiver and Model E5 Stereo Head-phone and P.U. Bag with Belt and Golden Colour Hot Stamping (CAMEL logo) on the Receiver and Bag.

 

13. Payment was to be by irrevocable documentary letter of credit with retention money of HK$1.20 per unit deducted, to be paid 30 days' after complete delivery of the goods which, according to the purchase orders, was on or before the 1st, the 3rd and the 13th May respectively. It is not disputed that on March 18,1982 the Bank of America issued an irrevocable straight letter of credit (Ex. D9) for HK$1,695,000.00 for account of the buyers in favour of the defendant, setting out the term of the three purchase orders. On the 24th March the Hang Seng Bank transferred the credit to the extent of HK$1,507,500 to Skilful - Ex. D10. By their letter dated 11th May to D.W.1 - Ex. D12 - the buyers extended the delivery dates while maintaining the expiry date of the letter of credit at 1st June, 1982. At the time of each delivery, the buyers issued an acknowledgement letter to D.W.1, according to which the following deliveries of the goods were made:

14. P.W.1 referred to the first four acknowledgement letters of the buyers, copies of which are at pages 36, 37, 38 and 41 of his bundle of documents; the total of which comes to 21,384 sets of radio and head phones. Based on these four deliveries, P.W.1 made out various invoices to Skilful in respect of his commission, viz., Ex. P25, Ex. P26 and Ex. P27. And on 21st July, 1982 he sent his composite invoice, Ex. P24, to the defendant, the details of which are as follows:

15. It is this amount which the plaintiff now seeks to recover from the defendant.

16. It is time now to consider the issues.

17. First and Second Issues. It was submitted by learned counsel for the defendant that the words used in the contract, Ex. P13, in describing the goods are clear and unambiguous, and clearly referred to model S-2 (headphones) and model SFS-107 radio which is different from the SAFS-107 model. He argued that in all the circumstances of this case, two transactions with the buyers were disclosed: one which materialized and was completed, that is, the supply and delivery of SAFS-107 AM/FM Stereo radio with E-5 headphones; the other which in fact became an impossibility, that is, the supply of SFS-107 radio with S-2 headphones.

18. Learned counsel for the plaintiff submitted that the description of the goods is far from clear. He said that the model number is not an ordinary English word, it being a badge or label which to outsiders is private language. He argued that this necessitated looking behind or outside the contract for its true meaning.

19. In making his submission, Mr. Hoosen referred to various documentary evidence both prior and subsequent to the contract. He said that the defendant relied on the various documents as they stood, that is, documents which have a connection with himself. To that extent therefore the whole transaction is thrown open and brought into scrutiny to resolve these two issues. In the circumstances, where the plaintiff also relies on the various documents, I think that it is only right and proper to consider such evidence upon which the parties seek to draw support for their contentions.

20. It is manifest that the buyers gave a general description of their requirements to the defendant. No particular model as such was mentioned, except that it was to be a portable type, or the 'walkman' type as D.W.1 said. He said that two or three days later, he obtained two separate types of 'walkman' radios from two factories which he delivered to the buyers with two quotations. There is no documentary support in this regard. Meantime, the plaintiff obtained a quotation from Skilful on 17th February, Ex. P2, which quotes for two models: SAFS-107 stereo radio with headset AM/FM and SAPS-107 (M) Mono radio with headset. He also purchased a sample of the mono radio as is evidenced by the invoice, Ex. P3. D.W.1 admits that on 13th February, he received the sample radio from P.W.1, which he later showed to the buyer. On 22nd February, P.W.1 bought another sample radio from Skilful which according to the invoice, Ex. P5, was SAFS-107 AM/FM Stereo radio with headset. Later, D.W.1 told him that the buyers were willing to accept this second sample but wanted a carry case with a strap and a handier headset. This, P.W.1 obtained from Skilful on 25th February, together with their quotation for these two items, Ex P7, which describes the radio as SFS-107 and the headphones as S-2. And on 4th March he bought another sample of the SAFS107 radio with headset as evidence by Skilful's invoice, Ex. P11, at the defendant's request.

21. It is at this juncture that the quotation of Skilful to D.W.1 dated 24th February - Ex. D3 - comes in. He said that on 23rd February when he told P.W.1 that the buyers wanted some other type of radio and headset, he was given the name card of Mr. SUNG Kwok-ming, the managing director of Skilful, whom he saw the following day and was given samples of the two models stated in the quotation, Ex. D3, which Miss CHAN (P.W.2) typed out on the instructions of her boss. This quotation is for the model SAFS-107 which is Ex. P17 with headset E-5, which is Ex. P17(A), and for SFS-100 as shown in the pamphlet, Ex. D4, with headset S-2 which is Ex. D1 and can be seen also in pamphlet, Ex. D2. The plaintiff maintained that he took D.W.1 to Skilful and introduced him for the first time to Miss CHAN after the 11th March, that is, after the defendant's purchase order to Skilful had been delivered.

22. Miss CHAN is the executive secretary of Skilful, in charge of marketing. She said that she came to know D.W.1 several days after she met P.W.1 in early February, but before the hire contract, Ex. P12, was signed by her. She was cross-examined about this quotation, Ex. D3. She said that she typed it on the instructions of Mr. SUNG after the completion of this transaction, and was back-dated in accordance with the instructions of her boss. She said that she gave it to D.W.1 about a year or several months after that date in February. She said that normally they would back-date some documents and not mind the purpose for which such back-dating was required. D.W.1 maintained that Miss CHAN was mistaken. This is one of the documents on which the defendant relies. Mr. Merry submitted that this touches upon the veracity of D.W.2 who agreed under cross-examination that this quotation was not exhibited with his first affirmation in the Order 14 proceedings; he did not know why this was not done but was exhibited with his third affirmation of the 20th November, 1982. It is obvious therefore that this quotation could have been prepared anytime between February and the date of the third affirmation. Miss CHAN was emphatic about its back-dating and it is manifest that there is nothing in the defence case to controvert her at all, nor was she shaken in this respect. It is to be noted also that the defendant claimed to have been given the samples of the radio sets mentioned in Ex. D3, but was not able to produce any documentary proof in that regard. He explained that he could not buy samples before confirmation of the order. On the other hand, P.W.1 had to pay for each sample that he got from Skilful. Also the mass of evidence indicates, as will be seen presently, that the headphone model E-5 was quite unknown in February.

23. I have no hesitation in finding that Miss CHAN is an honest witness, having no apparent stake at all in this matter. I conclude that Ex. D3 is a quotation which was prepared months after the completion of this transaction and was back-dated to the 24th February, on which date it did not exist, for the sole purpose of showing that the defendant was in direct contact with Mr. SUNG as early as that date.

24. Some other matters may be considered at this stage, being closely connected with the issue of credibility. First among those is the defendant's assertion concerning the radio model SFS-107, which he said was non-existent at the time of signing the hire contract. He said that it was a new design according to the instructions given to him by the buyers. I take this as a reference to what he was allegedly told by Mr. S. K. LEE of the buyers on the 4th March in that they would prefer a radio the size of a cigarette packet with a spring clasp for attaching it at the back of the trousers. Mr. Merry submitted that such a putative model was only in the mind of D.W.1. Under cross-examination D.W.1 said that this putative model was to be developed by the plaintiff. It is significant to note that this part of the defence case was not put to P.W.1.

25. The second refers to the, headphones S-2. D.W.1 had maintained that as early as the 26th February when he telephoned Mr. SUNG, he was told that Skilful would not supply this model because of a SONY product which was similar to it. In view of what I have said about the creation of Ex.D3, I view this evidence with just as great suspicion. There is however more cogent evidence in that when the defendant saw Mr. S. K. LEE on the 4th March, he was shown a notice of SONY in this regard in the Morning Post of the 3rd March - Ex. D6. Considering this evidence it must be that a sample of the S-2 headphones was produced to Mr. LEE and Mr. Norman LO (D.W.2) beforehand, so that they were able to compare it with the picture in the notice. The only basis upon which the defendant could have had a sample of the S-2 headphones was Ex. D3 which I reject as a fabrication of evidence. That will leave the evidence of the plaintiff who said that he gave D.W.1 a sample of S-2 headphones on the 1st March, together with his own quotation, Ex. P9. D.W.1 admitted under cross-examination that it was this sample and another of the SAFS-107 radio, both provided by the plaintiff, that he showed to Mr. LEE on the 4th March.

26. I must refer to the evidence of Miss CHAN who said that she pointed out the same copyright problem with regard to S-2 when the defendant went to her offices, together with P.W.1 several days after she met P.W.1 but sometime before the signing of the contract. P.W.1 said that he introduced D.W.1 to Mr. SUNG and Miss CHAN after the 11th March, that is, after he had typed the purchase order of the defendant to Skilful, Ex.P14. I view the evidence of P.W.1 and Miss CHAN, which at first sight seems to be contradictory, as showing, in all the circumstances, that P.W.2 could not possibly have mentioned this problem before the 4th March because the defendant was not with P.W.1 on 1st March when the latter obtained the sample of S-2. Also, the quotation of the defendant of the 4th March, Ex. D5, which he prepared before seeing Mr. LEE, mentions the S-2 type headphones. Mr. Hoosen submitted that this must have been in the hope that the buyers would not be aware of the copyright problem. I disagree. I find that this was because neither the plaintiff nor the defendant knew of this problem, at least not by the 3rd March. I further find that it was first mentioned by Mr. LEE on the 4th March when he asked the defendant to look for other samples, unless the copyright problem could be solved.

27. It seems to me to follow from this that D.W.1 suggested to P.W.1 that he should take legal advice about the possibility of infringement of SONY's copyright. This, P.W.1 did a few days after the 10th March, and later received an opinion from Messrs. Chung & Tong, solicitors, dated 26th March, Ex. P15, addressed to the defendant at the plaintiff's address. The relevant portion appears at p.3 of the opinion as follows:

"In the light of the above, we have advised Artsco that should they manufacture or sell the sample concerned, they will run risk of being sued for infringement of copyright and/or Registered Design."

P.W.1 said that the defendant wanted the opinion to be sent direct to his firm, without any references to Artsco as he did not want the buyers to know of their participation in the transaction. As a result the solicitors sent an identical copy of the opinion to the defendant, which is Ex. P16. The same opinion is now expressed this way:

"In the light of the above, we have advised you that should you manufacture or sell the sample concerned, you will run a risk of being sued for infringement of copyright and/or Registered Design."

The defendant said that the only legal communication he received from P.W.1 was the one at p.21 of his bundle of documents, which is the second opinion, dated the 29th March, i.e. Ex. P16. He said that he did not receive any other letter. I find his denial about seeing the other letter hard to believe. The circumstances in which legal opinion was sought seem to point to the probability that he must have seen the other letter first.

28. The third matter refers to the handwritten notes of the defendant on a small piece of paper, Ex. P8, which the plaintiff claims was given to him towards the end of February. The defendant said that he jotted those notes during his meeting with Mr. Michael YEUNG of the buyers on the 8th March at the time he handed them his own quotation, Ex. D7, the notes being about certain instructions concerning the goods which were being ordered. P.W.1 said that these indicated the alterations that were required to be done to the radio, SAFS-107, viz., the carry case and its belt were to be brown in colour, as were to be the end plastic pieces of the headphones which is therein stated as E-5 and it was to have earpads, the radio was to have the Chinese name HOTLINE with smooth surface, dispensing with the name plate of Shinning. Stated on the paper is a figure of $50,000.00 which was the retention money to be settled 30 days after delivery, and guarantee coupons were required for each set. It is to be noted that on 1st March, the plaintiff made out his quotation, Ex. P9, and whereas the original which went to the defendant does not have any handwritten notes on it, there are some on the plaintiff's copy, which he said he made one or two days afterwards. Looking at those notes some similarities can be seen with those of the defendant's notes, for example in the colour and the guarantee coupons. It is obvious that when the plaintiff made his quotation Ex. P9, he did not have that information which he subsequently scribbbled on its copy, the only source for that information in the absence of any evidence to the contrary is the note of D.W.1. Accordingly I find that Ex. P8 was handed to the plaintiff after the defendnat's meeting with Mr. YEUNG on the 8th March.

29. The fourth matter that need be mentioned is the plaintiff's claim that he was concerned with some artwork in relation to the manufacture of the goods, and he produced Ex. P18 and Ex. P19 in respect of the two metal plates on the pads of the earphones bearing the brand name 'CAMEL', and the letters 'L' and 'R'. Both these exhibits bear the plaintiff's chop. The defendant said and in this was supported by D.W.2 that the buyers' appointed advertising agents were the Team B.B.D.O. who produced the artwork, which he collected from them on 31st March and personally delivered to Skilful. Miss CHAN said that some artwork was delivered by both of them. A look at the radio, Ex. P17, indicates that some artwork was required for it also, that is, the brand logo of 'CAMEL'. It seems probable that not all artwork was undertaken by the Team B.B.D.O., at least that delivered by the plaintiff was done by him.

30. Considering what I have said thus far in the totality of evidence, it seems to me that the preponderance of the evidence points to the plaintiff's version being the more credible.

31. Having rejected Ex. D3, it is clear to me that after the first meeting between the parties in February, 1982, P.W.1 collected the various samples of the radio and the headphones together with Skilful's quotations. It is not without interest to note that in their previous quotation, Ex. P2, and their invoices like Ex. P3 and Ex. P5, Skilful consistently mentioned the radio as model SAFS-107 but gave no model number for the headphones. This seems to bear Miss CHAN out who said that their only concern was that a stereo headphone was supplied with a stereo radio, unless the customer wanted a particular type of headphone in which case they would give it the same number which its manufacturer had assigned to it. Then, for the first time, in their quotation of the 25th February, Ex. P7, appears the radio model as SFS-107 and the headphone as S-2. Miss CHAN said that in the description of the radio, the number and not the lettering prefix is important. She confirmed writing a letter dated 16th September, 1982, Ex. P30, to the plaintiff which reads:

"Please be advised that the correct Model No, for our product AM/FM Stereo Walkman Radio with headset is SAFS-107. If there is any wrong Model No. appears previously in all our documents and quotations such as below, it is only due to our typing mistakes.

We hereby guarantee that all the above no are the same Model No. as SAFS-107 with the same description. Once again, sorry for the inconvenience caused."

She was not cross-examined on the contents of this letter. She agreed however that the Skilful contract with P.W.1 described the radio as SFS-107, whereas the purchase order sets it out as SAFS-107. It will be recalled that in Ex. P13, the radio is also described as SFS-107. P.W.1 explained that when he was typing these contracts, he copied these numbers from Skilful's quotations. SFS-107 appears in their quotation Ex. P7. I recall also what D.W.1 had to say about this model SFS-107. I commented earlier that this part of the defence case was not put to P.W.1, the inference clearly being that there was in fact no such thing as a putative model, SFS-107. The totality of the evidence indicates to me and I so find that the plaintiff was never asked, and he never agreed at any time, to develop any such model.

32. The defendant introduced one other pamphlet which shows a FM Stereo radio SFS-100. He said this was one of the two samples which he obtained from Miss CHAN on the 24th February. Having rejected that evidence I find that this pamphlet and the evidence it represents must go also. I find that it did not figure in this transaction at anytime.

33. So, it is evident that the three samples of radio which P.W.1 got from Skilful were all SAFS-107, the first being the mono. I have no doubt that it was on those samples that the buyers accepted the AM/FM Stereo radio, SAFS-107, like Ex. P17.

34. Looking at the contract (EX. P13) the way in which the goods are described is significant, the model for both items being mentioned in parenthesis after the description. It was submitted on behalf of the plaintiff that the words in the parenthesis are not material; on behalf of the defendant it is said that the transaction based on these model numbers was an impossibility. With that aspect I have dealt already and rejected the defendant's assertion that SFS-107 was non-existent and only a putative model. It is then submitted that at the time the contract was signed, the defendant and the plaintiff realised that nothing had been concluded and they appreciated also that if the copyright problem concerning the headphones S-2 could be resolved, it could be represented to the buyers who had shown interest in it. In so far as the radio is concerned, it is quite clear from the evidence that soon after the plaintiff's quotation of the 22nd February, the defendant told him that the buyers were willing to accept the second model radio which was similar to Ex. P17. That remained constant throughout until of course the 6th March when the plaintiff typed the contract and mentioned the model SFS-107 radio.

35. I accept Mr. Merry's view that to outsiders the prefix lettering would seem private language. Where such description is apart from the popular sense the Court is entitled, I think, by considering the circum-stances and the situation of the parties at the time, to ascertain the special meaning or to prove the true nature of the agreement. Besides the various models of radio that were provided by the plaintiff which led to the purchase orders being placed by the buyers on the 8th March, the evidence of Miss CHAN seems to be conclusive in that the letters in the prefix of the model, like SAFS, SFS and so on, were not material. The circumstances clearly indicate to me that the parties who seem to have remained in close contact, even during the production stage when they supervised the manufacture, were never at cross purposes and all along were ad idem that the radio which was the subject matter of the contract was to be the AM/FM Stereo radio, the sample of which had been provided to the defendant who had confirmed the buyers willingness to accept it. Accordingly, it seems to me that the defendant accepted the offer notwithstanding the slightly different lettering prefix knowing what it meant and in no way in any fundamentally different sense from that intended by the plaintiff. That was the position of the parties as it seems to me when they signed this contract.

36. With regard to the headphones it seems that the model number E-5 appears for the first time in the defendant's note, Ex. P8, which he handed to the plaintiff after his meeting with Mr. YEUNG on the 8th March. As I have said, by the 6th March both sides were proceeding on the basis that the headphone S-2 would possibly accompany the radio. But on the 8th March, the buyers decided to abandon it for fear that it might infringe SONY's copyright and the promotion campaign was imminent, it being in mid-May, in favour of the bulkier sample which is Ex. P17(A) to which the defendant gave the label E-5. The plaintiff said that when he was typing the defendant's purchase order to Skilful on the 10th March, the defendant told him that they did not have to pay attention to the numbers used by the manufacturer and, instead, would give it the number E-5 so long as they understood what it referred to. In conveying this message to Skilful the plaintiff told them that since the hire contract and the purchase order between the parties all referred to the S-2 type headsets, he suggested that this number need not be changed on the understanding that it referred to the bulkier type.

37. Mr. Hoosen said that the plaintiff's explanations regarding the model numbers in the contract stretched credulity to breaking point. I find that upon close and critical scrutiny that certainly does not appear to be the case. Not only do I find those explanations reasonable, I find that the weight of the evidence indicates clearly that the defendant was ad idem with the plaintiff up to the 6th March and beyond when on the 8th March, the buyers finally decided for reasons I have mentioned above to go for the bulkier headphones instead, to which the defendant admittedly applied the label E-5.

38. My answer to the first issue therefore is that the hire contract between the parties, Ex. P13, related to the radio model SAFS-107, which is in no way different from SFS-107.

39. The answer to the second issue is that whereas the earphone models S-2 and E-5 are in fact different, the former being the slimmer or the SONY type and the latter the bulkier, in my view the facts and documents here clearly call for one or more juristic bases upon which to support the plaintiff's claim. In the circumstances, it would, I conceive, be wrong to allow the defendant to insist on the model number of the headset, and indeed of the radio, as stated in the contract to avoid his obligations to which he had agreed. I hold that by his conduct he is stopped from denying liability.

40. The third issue relates to the extra charges. The last sentence of the second paragraph of Ex. P13 states:

"By return, Artsco will share any lost (sic) caused by this bargain with Far East Trading Company equally."

41. Mr. Merry said, and I do not think that it was disputed, that the word 'lost' should read 'loss'. The plaintiff referred to an oral agreement between the parties and Skilful during the production stage that expenses incurred in the provision of any instruction sheet and a clasp or buckle to the shoulder strap were to be shared equally between the parties. Mr. Hoosen said that this oral agreement was not disclosed by the pleadings, particularly in the further and better particulars supplied by the plaintiff. Mr. Merry concedes this, but says that these were additional or unforeseen expenses and came within the ambit of loss. This is resisted by Mr. Hoosen who says that there is nothing in the contract to justify such charges. The way in which this sentence is drafted is curious and indicates that the loss contemplated by it refers to such as might flow from the discharge of the obligations of the plaintiff, that is, in the supply of the goods. Surprisingly the defendant agreed to pay half of such loss. According to Black's Law Dictionary, 5th edn., loss is a generic and relative term. It signifies the act of losing or the thing lost, it is not a word of limited, hard and fast meaning and has been held synonymous with or equivalent to "damage', "damages", "deprivation", "detriment", "injury" and "privation". In the context of the contract and the language in which it is expressed in the sentence, I do not construe the extra charges now being claimed as falling within any one of these meanings, and clearly they do not relate to the performance of the obligations of the plaintiff. I find that the plaintiff is not entitled to the sum of $4,276.00 under this head.

42. I therefore give judgment for the plaintiff the sum of $42,768.00 claimed as service fees with costs, upon which I will now hear parties.