This document summarizes a court case between Fraser and Everett regarding a breach of contract for shares in the Bentong Tin Mining Company. Fraser contracted to purchase 100 shares for Everett at $13 per share, with terms of cash on delivery of transfers and scrip expected to be mailed around the end of March. However, the scrips did not arrive until May 15th, which the court found was not a reasonable time given the shares were of a fluctuating nature in the mining industry. Additionally, Everett contracted for scrip but Fraser attempted to deliver bearer warrants instead, which the court ruled Everett could not be compelled to accept. Therefore, the court found for the defendant Everett,

1. FRASER v. EVERETT.
A person who contracts for the purchase of “transfer and scrip,’ cannot be compelled to take a "barer warrant.”
There is no rule of law like the saying “Silence gives consent" applicable to mercantile contracts; and an omission to reply
{in connection with such a contract] does not constitute a waiver.
under a contract for scrips for Mining shares “expected to be mailed about the end of March,” and which if mailed would
have arrived on 23rd April, it is not a delivery within a reasonable time, to have the scrips mailed early in April, and to
after them on 15th May.
This was an action to recover $600! damages for breach of contract in refusing; to accept certain shares in the Bentong Tin
Mining Company, Limited. The defendant, through a broker, requested plaintiff’s firm to telegraph to London for 100
shares in the above Company which had its Registered Office in London. The contract was as follows:

2. Messrs. FRASER & Co.
Dear Sirs,
I have this day sold to E. E. Everett, Esq., on account of your principal in London, 100 Bentong Shares at $13 = $12
and 1/2; net to F. & C0, Terms--. Cash on delivery of transfers and scrip expected to be mailed about end of March.
Yours faithfully,
R. DUNMAN, Broker.
Confirmed,
E. E. Everett, Buyer.
The “principal in London” referred to in this contract, was John Fraser, the plaintiff in this action.
In pursuance of this contract, Messrs. Fraser & Co., on the 2nd March telegraphed to the plaintiff, in London, to
purchase the said shares. By the Article of Association of the Bentong-S. T. M. Co., Ltd., the Company might issue
share-warrants to bearer, and at the date of the contract it was known in London and to the plaintiff that shares for
which such warrants had been issued were more readily saleable, and commanded a better price in Singapore, than
registered shares; accordingly, the plaintiff applied to the Company to issue share-warrants for the 100 shares so
purchased by him for the defendant. On the 29th March, the plaintiff advised the said firm that the said shares were
being so exchanged to “Bearer” scrip, and that they were not ready to send by that mail. Fraser & C0., on receipt of
this advice on the 25th April, 1889, gave notice to the defendant that the shares were being so exchanged, and were
not ready to be sent by the mail which had that day arrived. The said share-warrants arrived by M. M. mail steamer
Melbourne on the 15th May, 1889, the mails carried by which steamer had left London on the 19th April, 1889, and
on the same day, the plaintiff through Messrs. Fraser & Co. tendered the same to the defendant, but the defendant
refused to complete his purchase and to pay the contract price for the shares, whereupon this action was brought.

3. Donaldson, for plaintiff contended, there was nothing fixed as to time; it was not one of the essentials of the contract.
The shares were “expected” to be mailed about end of March. Defendant was informed by letter of 25th April, that
warrants were being obtained and he did not reply that he did not want them, or else he might have got scrips. He
never told the plaintiff of the mistake, but allowed him to pay money out of his pocket. The former were more
valuable and saleable in Singapore.
Napier, for defendant contended, that the contract was for scrip, and the defendant was not bound to take what he
did not want. Warrants were less safe because when lost there was no remedy; whereas in case of scrip, further
transfers could be stopped. As to time, the contract fixed a time-a month was lost by the plaintiff trying to get
something for defendant which he did not want, and his market had in meantime fallen. The value of these shares
was fluctuating. Singapore was a small market, and the decisions of the Courts were strong in favour of time being
essential. He referred to Dolaret v. Rothschild, 1 8. 8L S. 590, 598.
Donaldson, replied.
Wood, Acting OJ. As the defendant in this case has contracted for transfer and scrip, he was entitled to what he had
bargained for, and cannot be compelled to take a bearer warrant. Mr. Donaldson argued that by not replying to
Messrs. Fraser Co.’s letter of the 25th April, informing him that the certificates were being exchanged for bearer-
warrants, the defendant must be taken to have waived this objection. Bat there is no rule of law like the saying
“Silence gives consent” applicable to mercantile contracts, and the omission to reply does not constitute a waiver.
With regard to the question of time, I hold as a fact that the shares in question, were mining shares of a very
fluctuating character, and that a delivery of the documents of title to the shares, on the 15th of May, when, if they
had been mailed on the 29th March, they would have arrived on the 23rd April, is not a “delivery within a reasonable
time under the terms of the contract, “expected to be mailed about the end of March.” In the result, judgment must
be given for the defendant with costs,