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THE HONGKONG WEEKLY PRESS AND interest the representatives of the community took in the matter that Mr. Silas did not answer the letter, and that none of the trustees attended the sale or made any excuse for not doing so. Indeed, from the time of receiving Mr. Moses' letter of the 29th April, informing them of the application, until the purchase of the land, they appear not to have concerned themselves at all in the matter.
With the defendant's letter there was en. closed a memorandum by Mr. Danby, bearing the same date, namely, the 31st July, 1896, and giving an explanation of the facts from his point of view. This memorandum does not bear out Mr. Danby's denial of Messrs. Hooper and Northcote's evidence not does it support the de- fendant's statement in bis letter above quoted as to his instructing Mr. Danby to apply at the beginning of June. On the whole, I come to the conclusion that the defendant did not de- finitely instruct Mr. Danby to apply for the two upper lots until the 17th June, 1896, that is, the day after Mr. Danby's conversation with Mr. Chater.
On the 3rd August, 1896, Mr. Bell Irving, although evidently not satisfied with the defend- ant's explanation, writes to him to say that, "as his application had first reached the Govern ment, the Land Investment Company would not bid for the property in question.'
Now, what is the real bearing of this transac- tion on the main question in the case, namely, on whose behalf was Lot No. 1,381 acquired? We are not now concerned with the question whe ther or not Mr. Danby or the defendant behaved badly to the Land Investment Company, but we are concerned with the question of what connexion there is between the application for and purchase of the lower lot and the application for the two upper lots.-- with the question, What light does the later transaction throw on the earlier? On this point I am satisfied by the evidence before me that the defendant applied for the two upper lots with the idea that he would probably be able to utilize them in conjunction with the lower lot, either in whole or in part. I believe that he bad begun to have doubts whether the com- munity would decide to place the synagogue in that situation, in which case he would have the whole of the lower lot on his hands. I believe also that, whether or not he entertained this notion in the first instance, he had by this time begun to think that the eastern portion of the
lower lot would be sufficient for a site for the
synagogue and that the western portion would be available to him for the making of an approach from Kennedy Road to the two upper lots. If these conclusions are well-founded, the - defendant's action in respect of the two upper lots, taken before the purchase of the lower lot. lends support to his contention that he was not purchasing the lower lot on behalf of the community..
On the 27th June, 1896, Lot No. 1,381 was advertised in The Hongkong Goverħment Gazette for sale by public auction, to be held on the spot on the 13th July, 1896.
On the 1st July, 1896, Mr. Cooper wrote to Mr. Danby stating that the Governor had approved of Lots Nos. 1,382 and 1,383 being put to sale, and mentioning the conditions on up which they would be so put up.
Next, Mr. Elias wrote to Mr. Silas the following letter:
|
On the 10th July. 1896, Mr. Danby wrote to Mr. Choper accepting. On behalf of the defen- dant, the conditions mentioned in Mr. Cooper's letter of the 1st July, 1896, with reference to the sale of Inland Lots Nos. 1,382 and 1.383, and asking that they might be ad- vertised for sale as soon as convenient.
Then we reach the final act in the first part of this transaction Ou the 13th July, 1896. the defendant attended the sale of lot No. 1.381 and bought it for the sum of £6.931. This sum he has paid, and he has also paid all Crown rent due up to the present time. On this date the expected telegram from Mr. J. E. Sassoon had not been received.
**
+
I have now stated and examined, so far as I find them material, all the facts and circum- stances which preceded and led up to the sale and purchase of Lot No. 1.381 on the 13th July, 1896. The plaintiffs case is that the defendant attended the sale for and on behalf of the community and purchased the lot in his own name but for and on behalf of the community," or, in other words, that, on the fall of the hammer, he became trustee of the lot for the community. The decision must therefore turn upon the auswer to the question, What was the true object and meaning of the defendant, as evidenced by his procedent acts and declarations, in making the successful bid? As I have already said. if a clear and satisfactory-auswer can be given to this question, one way or the other, then the case is at an end and it is unnecessary to enter into a consideration of acts and declarations subsequent to the sale and purchase. But, although I am inclined to hold that the plain- tiffs have up to this stage failed to sustain their contention. yet I think, having regard to ambiguity and vagueness which run through much of the evidence, that it will be proper to ascertain what assistance in arriving at a cor- rect decision can be derived from an examina- tion of the subsequent conduct of the peries, I I will endeavour to make this examination brief, because I do not think that, generally speaking, so much importance is to be attached to what took place after as to what took, place before the sale and purchase. I proceed, then, with this further examination.
February 26, 1898.
Nullah (and known as the synagogue site) to be put up to public auction sale, the written application for which was sent Mr. Cooper on the following day, viz., on the 28th April.
"A few days after, during a conversation I had with you on the Club verandah, you in- formed me that your idea in acquiring this. ground was to offer it to the Jewish community, as a site for a new synagogue; whether it would · be acceptable to them or otherwise, you could not tell at the time as the matter had to be referred to Bombay; should the Jewish com- munity, however, decide oventually not to adopt it as a site for their synagogue, you would retain - it yourself, in which case you might possibly. purchase the site above it, and erect European, houses on both lots.
"Some time about the beginning of June, Mr. Chater informed me that he had been given to understand that your community were not in favour of your new synagogue and project, I inferred then from our previous conversation that you would retain this ground for huilding purposes should you become its purchaser, which you did eventually, the site being put up to public auction sale on the 13th inst."
Nothing could be clearer than this statement- of the object and purposes of the defendant in applying for Lot No. 1.381. It is inconsistent with the plaintiff's position that he applied. for the lot on behalf of the community, that is, acting as their agent or representative in the matter; it is consistent with his own position that he applied for it with the intention of offering it, or at any rate a portion of it, to the community. The value of the two letters to which I am now referring lies in the fact that they were written within a little over a fortnight of the purchase of Lot No. 1,381, and before any dispute had arisen with regard to the circumstances of the acquisition of that lot.
On the 11th August, 1896, the defendant became the purchaser from the Crown of lots Nos. 1,382 and 1,383. He thus had the legal title, or at any rate the right to call for the legal title, to the entire block of land which I have already described.
About the middle of Angust, 1896, Mr. Danby began to take levels and make surveys of the block. This work was continuéd from time to time during the next few following months. and by December a plan of the contours of Ce block was completed. Mr. Danby says that the defendant often pressed him to get on with the plans for the buildings which were to be erected, but he told him that he could do nothing until the question of the synagogne
was settled.
Next comes the following letter:-
Hongkong, 27th October, 1896.
J. E. Sassoon, Esq.
Dear Sir,We are in receipt of your favour of the 25th ult. respecting the synagogue in Hongkong and in reply we would now inform you that we are agreeable to all the terms and conditions therein stated and trust that you will kindly instruct your firm here to transfer to us the whole of the property belonging to the present synagogue and the sum of $5,000 you have agreed to contribute, for which we thank you.
:
On the 31st July, 1896, the defendant wrote to Mr. Bell Irving a letter from which I have already read an extract. This letter is so loosely worded that it is difficult to satisfy oue self as to its true interpretation. It was writ- ten in explanation of the time and circumstances of the application made by the defendant for Lots Nos. 1,382 and 1,383, but it incidentally Hongkong, 3rd July, 1896. refers to his application for Lot No. 1,381. On My dear Silas,-Mr. Belilios desires me to the whole, I take its meaning to be that the inform you that the site of the proposed defendant applied for Lot No. 1,381 in his own synagogue in Kennedy Road is advertised for
name but with the object of getting the com. sale on the 13th instant at 4.30 p.m. iu last munity to build a synagogue there; that in the Saturday's Government Gazette. He hopes latter part of May. he learned the existence In the meantime we shall proceed to ne- that we shall get the telegram from Mr. Jacob of an influential opposition to that site; gotiate in concert with your firm's representa- Sassoon before then, and that the trustees-that it then occurred to him that, in
tive for the sale of the present synagogne pro- the three of them-will be present at the sale sequence of this opposition, the lot would property and the selection of the site for the in order that there may not be any outside bably remain his property, instead of being building of the new one, as we deem it advisable competition as several people bave their eyes taken from him by the community; and that he to do so without further delay. on the lot. Yours sincerely,
accordingly, about the beginning of June, asked Mr. Danby to apply for the two upper lots in order that he might utilize them in conjunction with the lower lot. This construction is borne out by a letter from Mr. Danby, which, it will be remembered, was enclosed in the defendant's letter and which the defendant had read and the statements in which be says he "corrobo- rates "* The material portion of this letter is as follows:
ELIAS.
It does not appear to me that this letter helps in any way to a solution of the difficulty in the case. It is a letter which might very well have been written on any one of the three possible bypotheses, namely, first, that the de- fendant was buying the land for the com- numity, secondly, that he was buying it for himself but with the intention of letting the community have it, if they desired to do so, and, thirdly, that he was buying it for himself but with the intention of letting the community have a portion of it, if they desired to do so. In any of these cases the attendance of the trustees, and the public intimation thus made -that it was proposed to erect a synagogue on the land, would tend to avert competition and so keep down the price of the land. To secure that attendance for this purpose was the sole object of the letter. It is a proof of how little
44
con.
Hongkong. 31st July, 1896. "The Hon. E. R. Belilios, C.M.G.
Dear Sir,-In accordance with your instruc- tions. I forward you the following memoranda respecting the two sites on the Kennedy Road on the West side of the Tramway.
"
On the 27th of April last, I received instruc- tions from yourself to send in an application to the Director of Public Works, to apply for the piece of ground on the Kennedy Road, between the Tramway and the Stone Bridge over the
Reciprocating your wishes of the compliments of the season.--We are, dear sir, sincerely yours,
D. R. SASSOON. E. R. BELILIOS. A. J. DAVID.
This letter was drafted by Mr. Silas and was signed by Messrs. D. R. Sassoon and A. J. David and the defendant. The facts relating to the application for and the acquisition of Lot No. 1,381 must be presumed to have been in the knowledge of all these persons. Yet blow do they treat the transaction in writing to Mr. J. E. Sassoon, who had a vital interest in it? Do they write to inform him that, since the date of their last latter to him-the 20th May, 1896-the defendant had purchased, on behalf of the community, the site referred to in that letter; that he had paid for it; and that they were anxious to take it over from him aud to commence building the new synagogue upoù- it? If the three first-named gentlemen had at