May 13, 1899.]
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CHINA OVERLAND TRADE REPORT.
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391
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Counsel then proceeded to argue the ponit as to which side should open and on which side the onus of proof lay, Mr. Follock contending that it lay with defendants and Mr. Francis that it lay with plaintiff.
Mr. Pollock said that his contention was that the only point really which had to be decided was, were these accounts stated and settled accounts as alleged by the other side? Of course if they were stated and settled accounts it must follow that there was due to defendants a greater amount than was due to plaintiff, and it would be for defendants to open.
His Lordship-You say they are not stated and settled accounts, because they are fraudulent P Mr. Pollock said quite so. They said they were not stated accounts because they never soquiesced in them.
shares in the said two Companies which he had | and carried and held for and on his behalf and agreed to sell on time bargains and deliver on accordingly the whole of the accounts which the said two dates, applied in the first instance the defendants rely upon in their Answer as for financial assistance to the second defendant, defence to this suit are founded upon fraud and who referred him to the first defendant, to whom deceit and are without foundation and must fall he (the plaintiff) accordingly applied. Subse to the ground. The plaintiff, in consequence quently the defendants after going into the of the aforesaid discovery made by him, hua matter and after stipulating that the plaintiff applied to both the defendants for the numbers should give them (the defendants) as security (giving particulars of the different scrips) of the whole of his monies, shares, and interests the shares in the Hongkong and Kowloon in the hands of The Hongkong and Shanghai | Wharf sod Godown Company and in the Bangking Corporation and in the hands of Panjom Mining Company which they pro- Mr. David Elias Sassoon (subject to all prior fess by the Accounts referred to in charges theroon), and also make over to them paragraphs 7 and 9 hereof to have been (the defendants) as further security the whole carrying and holding for and on behalf of of his (the plaintiff's) interest in section A of the plaintiff, but the defendants have wrongfully Marine Lot No. 44 and Marine Lot No. 110 and in breach of their duty to the plaintiff as and other land and houses (subject to the then such agents as aforesaid refused to supply the existing prior charges thereou), and should said particulars to the plaintiff because they agree to sell to the defendants for delivery on knew and know full well that they have broken the 30th June, 187, at the price of $150 per their said Agreement with the plaintiff inas- share 1000 to 1,590 (subsequently increased much as they have not taken up and carried and to 2.075) of the shares of the Hongkong held for and on behalf of the plaintiff any of and Kowloon Wharf and Godown Company, the shares which they agreed to take up and Limited, which he (the plaintiff) had con- carry and hold for and on behalf of the plaintiff tracted to purchase for delivery as aforesaid as aforesaid and which by the said accounts on the 30th June 1887 and should also agree to they represent that they have taken up and sell to the defendants for delivery as aforesaid have been and are carrying and holding for and at the price of $9 and $10 per share 2,000 of the on behalf of the plaintiff as appears on the face shares of the Punjom and Sunghie Dus of such Accounts." Samantan Gold Mining Company, Limited, which he (the plaintiff) had contracted to chase for delivery as aforesaid on the 30th June 1887, and that the plaintiff should also enter into the agreement with them (the defendants) which is set out in paragraph I hereof, agreed that they (the defendants) would assist him (the plaintiff) financially to carry through and complete his (the plaintiff's) share transactions for the said 30th June and 30th September 1837 by taking up and paying for and receiving delivery for and on behalf of the plaintiff of all the shares in the said two companies which the plaintiff had agreed to buy forward for the said two dates respectively, and by their delivering for and on behalf of the plaintiff from out of such shares all the shares which the plaintiff had agreed to sell forward for the said two dates respectively, and by their carrying and holding for and on behalf of the plaintiff the balance of the plaintiff's shares remaining in their hands after carry ing out and completing the plaintiff's share transactions for the said two dates, and after the delivery to them (the defendants) of the 2.075 shares of the Hongkong and Kowloon Wharf and Godown Company Limited and the 2,000 shares of the Punjom and Sunghie Dua Samantan Gold Mining Company Limited which are above mentioned. Save in so' far as this paragraph contains admissions and save în so far that the plaintiff admits that provided any mouies were found to be due from the plaintiff to the defendants the defendants were entitled to debit the plaintiff with in- terest upon such mouies at the rate of $7 per centum per annum, the plaintiff denies the ruth of each and every of the allegations which are contained in paragraph 10 of the Answer And in particular the plaintiff denies that he ever entered into any agreement with the defendants or with either of them giving them or either of them liberty to either sell or dispose or make use of any shares which should be taken up by them for the plaintiff until re- demption or to iu any way deal with such shares for their own use and profit. And the plaintiff also denies that he agreed that the defendants or either of them should not be required to hold for or deliver to the plaintiff any specific shares, and the plaintiff further denies that he agreed that the defendants or either of them might deliver to the plaintiff or his order any shares of the same nature and kind accounting merely for any dividends or income accrued upon such shares in the meantime and taking credit for any calls made thereon or other charges of any description." By way of reply to the answer generally, the plaintiff concludes his replica. tion:-"The plaintiff has recently discovered that the defendants in breach of their said agree ment with the plaintiff and of their duty to him as confidential agents have not taken up or carried or bald for and on behalf of the plaintiff any of the shares which in pursuance of their said Agreement with the plaintiff (which is set out in paragraph 5 hereof) they ought to have taken up
the end of June and September 1887 and the balances on such transactions were in the then state of the market very heavily against him. He was entirely without means to carry out his contracts in respect of such sales and purchases and could obtain no financial as sistance from the local banks or financial institutions. The said Hormusjee Nowrojse Mody was then and still is, amongst other things, a large dealer in shares and securities of all descriptions and had large credits at his dis- posal. The first defendant, the said Catchick Paul Chater then bad and still has a half share and interest in this share and security busi- ness but took no active part in the general management thereof, doing himself and on his own account a large business inland aud house property in Hongkong and Kowloon, and in the promotion of companies in connection therewith. In some of the transactions in land and house property then pending the plaintiff had a share and interest with the first defendant and the then stated and settled accounts between the plaintiff and the first defendant herein before mentioned are in respect of such joint interests. In his said difficulties he plaintiff applied to the said Hormsjee Nowrojes Mody through the first defendant to complete and carry out all his (the plaintiff's) theu pending transactions in shares both purchases and sales, and the said Hormusjeo Nowrojes Mody (for himself and the first defendant) agroed so to do and the plaintiff in consideration of such agreement oharged the whole oa his monies and interests in the hands of the Hongkong and Shanghai Banking Corporation, in the bands of David Elias Sassoon, and in the hands of the first de- fendant (subject to all prior chargs) in favour of the said Hormusjee Nowrojee Mody by way of security for all monies lent or advanced or to ba lent and advanced by the defendants to the plaintiff or paid ou his account in respect of his said share transactions. The plaintiff farther agreed for the considerations aforesaid to pay to the defendants interest on the seid ronies at the rate of $7 per centum per annum and that the defendants should be at liberty to sell or dispose or make use of th shares taken up by them for the plaintiff until redemption and should not be required to hold for or deliver to the plaintiff any specific shares but might deliver to the plaintiff or to his order any shares of the same nature and kind accounting for any dividends or income accrued upon such shares in the meantime and taking credit for any calls made thereon or other charges of any description." The remainder of the answer gives particulars of the transactious alleged to have been carried out. In the replication filed in reply to the joint answer, plaintiff denied that either the said sum of $24.506 22, or any portion thereof or any interest thereon, was payable to defendant Mody either for account of himself and of first defendant or other wise or at all. He also denied that any sum of money whatever was now due owing or payable by him to defendants on any accounts whatsoever. Plaintiff repeated his state- meut regarding the verbal agreement. He admitted that previous to such agreement being come to he had bought and sold shares largely on time for settlement at the end of June and September, 187, and that owing to the state of the share market he became, unless helped fin. ancially, unable to carry out his contracts. denied that he could obtain no financial assist- ance from the local banks or financial institu- tions, and be further said he never attempted to obtain such assistance. He denied the allega- tion that the first defendant took no active part in the general share and security business mentioned in paragraph nine of the defendants' joint answer. The replication continued :- "In reply to paragraph 10 of the Answer the plaintiff says that at the end of April or tue beginning of May 1887 he, in consequence of the then weak state of the share market, which then gave him no hope of being able to fulfil his share contracts on time which would mature due on the 30th June and the 30th September 1887, in consequence of his having contracted to purchase on time bargains for the said two dates a larger number of shares of the Hongkong and Kowloon Wharf and to- down Company Limited and of the Punjom and Sunghie Dua Samantan Gold Mining Company Limited than the number of
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Mr. Francis said their defence was an admis: sion practically that they owed this $24,506. They would be perfectly willing, when they had authority from Mr. Hughes, to pay the money over to themselves in settlement of any claims which might arise, and they put forward as their evidence in support of the existence of this transaction, and of its having been osrried through, and of the amount due, a statement that there were stated and settled accounts between the parties. They alleged in their pleadings that on the 31st April, 1887, they rendered fully detailed accounts of all their transactions with Mr. Hughes, and that Mr. Hughes accepted those accounts as being true and signed them as correct. These accounts were made out in 1887, and they said. that until recently they had never been ques- tioned.
On the Court resuming after tifin. His Lordship decided that it was for Mr. Francis to open.
Mr. Francis, having called attention to a cer- tain point in the pleadings, proceeded to deal with plaintiff's antecedents. He said that in 1881 plaintiff was taken up by Mr. Chater and given certain shares and enterprises in which Mr. Chafer was interested. He had not the least doubt that Mr. Chater got value, in the shape of services rendered, in return. The re- |sult of these speculations was that Mr. Hughes made some $30,000 or $40,000. In 1889 Mr. Hughes went away to Australia, and in the meantime Mr. Chater went in for what had proved a most successful speculation. He pur chased land and a syndicate was formed to work the Kowloon Wharf and Godowns Company, and Mr.. Chater gave Mr. Hughes a fifth share in that syndicate. Mr. Hughes did not contri- bute a cent towards it. An expenditure of $600,000 was incurred in building these wharves and godowns. Mr. Chater supplied the whole of the money ont of his own packet for Mr. Hughes and for himself in respect of their one- fifth share, and when ultimately the concern was transferred to a company and handsome pro- fits were realised, there was a profit of something like $40,000 for Mr. Hughes alone. But by that time Mr. Hughes had involved himself vary