June 17, 1899.1
CHINA OVERLAND TRADE REPORT.
Original JURISDICTION,
BEFORE HIS HONOUR W. MRIGH GOOD
man (Acting Chief JusticE.)
March, 1896, nearly two months before the business was actually started, and Leung Tun press Po produced the letter book-
oopy of this letter. The CURRENT PASTOO
ments sent round to the eight partners were dated the third moon of the twenty-second year of Kwang Sui, i.e. between April and May, 1896, and in place of the name of Leung Tan Po appears the name of Leung Shan U Tong as the holder of a five hundred dollar share. It became, therefore, necessary, before much progress could be made with the winding up of the firm, to determine whether Leung Tan Po was a partner or not. If he is the same man as Leung Shau U Tong he is a partner. If Leang Shan U Tong is another person alto- gether, then Leung Tan Po is not a partner.
port of Victoria, and lastly to give the people of the district means of access to a market for their produce. There should not be a day's delay in the carrying out of this undertaking. We hope that Sir HENRY BLAKE will not listen to every suggestion of delay, every device of red tape for post poning progress. The colony has suffered badly from these causes before. What is wanted now is a good stiff back and a rendi- ness to accept responsibility. There are some public works, it seems, that the clerks in Downing Street will not permit us to inaugurate without their consent first se- cured in writing, but these bureaucratic orders of the Colonial Office do not extend to all the roads and other necessary works, and the Governor of the colony should such. He is left with some discretion and to have an account taken of the partnership should have been glad of the assistan not hesitate to accept the responsibility for
should not fear to exercise it.
SU REME COURT.
13th June.
IN ORIGINAL JURISDICTION. BEFORE HIS HONOUR W. MEIGH GOOD- Man (Acring Chier Justice)
TAK LI WINJ V. THE HONGKONG LAND
INVESTMENT AND AGENCY COMPANY, LIMITED, AND ANOTHER.
In this case Mr. Pollock (instructed by Messrs. Wilkinson and Grist) appeared for plaintiff, and Mr. Francis, Q.C. (instructed by Messrs. Deunys and Bowley) for defendants.
BETWEEN TAM TEZ KING, CHAN SUI CHOW, YIP CHEUK KAI AND NG CHEUNG PAU, YIP TAT CHO, No Yui TUNG TONG, LEUNG TUN Po alias, LeunG SHAN YUI TONG, YIP Cheuk Bau. Mr. J. J. Francis, Q.C., instructed by Messrs. Dennys and Bowley, appeared for the three plaintiffs and for Yip Cheuk Pan, one the defendants; and the Hon. H. E. Pollock, instructed by Messrs. Mounsey and Brutton, for the remaining defendants.
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His Lordship delivered judgment in this suit
as follows.-
The writ in this suit was issued on the 25th January, 1898, and the plaintiff thereby claimed dealings between the plaintiffs and the defen- dants in the business of the Cheung Shing firm of No. 171 Queen's Road Central, Victoria, Hongkong, and of Kobe, Japan, and to have the said partnership business wound up. Some of the defendants were added by order of 25th February, 1898, the defendants men- tioned in the original writ being only two, name- ly. Ng Cheung Pau, the partner who managed the Japan branch of the business, and Yip Tat Cho, who resided at 171, Queen's Road Central, and was the manager of the Hongkong business, Among the defendants so added was Leung T'un Po, whose alias is given in the amended writ as Leung Shan Yui Tong. The main ob- ject of the partnership business was to trade in matches to be imported from Japan and sold in Hongkong and the Southern ports of China, The Cheung Shing firm commenced business about 20th May. 1896, and suspended payment about 15th January, 1898.
Mr. Francis, in making a motion for the dismissal of the suit, said this was a suit by the In their petition, the three plaintiffs charge Tak Li Wing firm, a firm of building con- the defendants Yip Tat Cho and Ng Chung Pau tractors, against the Hongkong Land Invest- with having, improperly and without the know ment and Agency Company, Limited, who were ledge and consent of the other partners, and the principals, or the owners of the houses to be contrary to the terms of the partnership agree built, and Willian Danby, who was their archi- ment, traded in goods other than matches, and tect. The writ was filed on the 25th July, 1898. with having, thereby, caused heavy losses to the In that writ there was a claim against first de- firm. Bat, for the purposes of the present fendant for accounts with reference to extra and judgment, it is unnecessary to decide precisely additional works done on the contract and for how the business got into difficulties, because payment of whatever was found to be due to him it is clear that, in any case, the plaintiffs are on the taking of the accounts. Against second entitled to an order declaring the partnership defendant only, there was a claim for damages business of the Cheung Shing to be dissolved for refusing to give certificates in respect of as from the 15th January, 1899, and directing extra works and additional works, and there the accounts of the dealings and transactions was a claim against both defendants as regarded of the said partnership to be taken and all costs and general relief. The petition was
necessary inquiries to be made. The Court filed on the 6th October, 1-98, and the order was given to understand that the creditors of to amend was made on the 25th November, the Cheung Shing had been paid or settled 1898. As to the petition, paragraphs one, two, with, chiefly or entirely by the three plaintiffs, three, four, five, and six were immaterial, and that what remained to be done related rather but in paragraph seven plaintiff alleged that to the adjustment of the sums which the re- when the houses were nearly complete second maining partners had to contribute as their defendant, by the authority of first defen-share of the indebtedness of the firm which dants, ordered certain departares from the existed at the time its doors were closed. The original plans which involved considerable alter-original capital of the business was fixed at tions and additions and were altogether outside four thousand dollars, divided into eight shares the terms of the contract, which rendered the of $500 each. completion of the work by the 31st Decembor, 1897, impossible and put plaintiff to considerable trouble and expense. With reference to that allegation, it showed no cause of action. because in paragraph 11 and subsequent paragraphs of the contract plaintiff expressly agreed that the principal and the engineer should be at liberty to direct alterations and additions to any extent that they might consider necessary, such addi- tions to be paid for according to schedule. Then by section 13 of the contract plaintiff agreed to commence the work immedia. tely on the order given to him and pro- ceed with the work with such diligence as the engineer should approve, and complete the same to the entire satisfaction of the engineer, including any extras and alterations, on or be. fore the 31st of December, 1897, unless the engineer should in writing extend the time. Therefore he contended that plaintiff could not make it a subject of complaint that alterations were made in the original plans. Mr. Francis dealt with the other sections in the contract, and contended that they went to show that plaintiff had no cause of action.
The further-bearing was adjourned.
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but As regards seven the eight partuers. the partnership is ad- mitted. The main difficulty in this case has been to ascertain the identity of the re maining partner, whose name appears in the partnership agreement supplied to the partners as Leung Shan Yui Tong. It was contended by Mr. Francis, who appeared for the three plaintiffs, and for Yip Cheuk Pau, one of the defendants, that Leung Shan Yui Tong was simply the alias and Tong name of Leang Tun Po. It was, on the other hand, contended by Mr. Pollock, who appeared for Leung Tan Po, that Leung Shan Yni Tong, the partner in the Cheung Shing firm, was another person alto. gether, and that he, Leang Tan Po, never had the alias or Tong name of Leung Shan Yui Tong and never became a partner in the firm.
Leung Tun Po admits he had, at one time, intended to take a share and had signed the preliminary agreement in his own name Leung Tan Po) but he declared he wrote very shortly after so signing to Yip Tat Cho, who was getting up the partnership, telling him that he had altered his mind and asking him to get someone else to take the share he had in tended to take. This letter is dated the 27th
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The parties, therefore, desired me to decide that question; and that was the real issue with which I was asked to deal. If I had known that the evidence would be so voluminous I jnry, but as neither party seemed to & jury I have had to decide the question upon my own responsibility. This apparently simple issue was vigorously fought out for nine whole days. If there had been no false had been spoken by the witnesses, the matter evidence given, if nothing but the truth might, in my opinion, have been settled in al- most as many minutes.
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There were three people who knew for certain whether Leung Tun Po was a partner or not, namely Yip Tat Cho, Leung Tan Po, and a man named Leung Yuen Kwan, who stated that his Tong name was Leung Shan Yui Tong and who alleged that he, and not Leung Tan Po, was the partner whose name appeared in the final partnership agreement. He gave evidence that he paid his five hundred dollars to Yip Tat Cho, personally, on the 6th April, 1896, and received a receipt from him and only returned him that receipt when be received from Tip Tat Cho his copy of the partnership agreement in which his name appeared as a partner, that is to say his Tong name, Leung Shan Yui (or U) Tong. If this is true, and if Leung Tan Po, as he alleges, never paid 'one cent for any share in the firm and never became a partner at all, it is obvious that Yip Tat Cho's account of the transactions in question is a deliberately false statement made for the purpose of misleading the Court and fastening upon Leung Tan Po the responsibilities of a partnership with which he had nothing whatever to do; whereas, if Yip Tat Cho, the sole managing partner in Hongkong, is speaking the truth it is equally clear that Leung Tan Po and Leung Yuen Kwan are guilty of the most deliberate Per- jury. I will not speak so strongly as to those of the other partners who gave evidence; all, or nearly all, except Yip Tat Cho and Ng Cheung Pau, the latter of whom had more to do with the branch of the business in Japan than with the Hongkong office, were merely dormant partners or practically shareholders in the venture. I observe, more over that Ng Cheung Pau, who filed a separate answer in the suit, states therein that he does not admit that Leung Tan, Po was a partner and does not admit that his Tong name or alias was Leung Shan Yui Tong. I presume Ng Cheung Pan was not in the colony when this case came before the Court. At all events he did not
give evidence. It is possible that the three plaintiffs who gave their evidence believed and relied on Yip Tat Cho's statements and having seen Leung l'un Po's name in the preliminary agreement may have supposed that the sub- stituted name in the final agreements a month later was merely an alias of Leung Tan Po and have thought they were justified in going a little beyond actual facts in order to prevent his escaping from his responsibilities as a partner. It may be well, at this point, to state shertly Yip Tat Cho's version of what occurred.
He declared that after "eung Tan Po had signed the preliminary agreement that gentle man called and told him that he noticed some of the intended partners had used their Tong names in signing and that he too would like his Tong name inserted instead of his ordinary name; that his Tong name was Leung Shan Yai Tong. Thereupon Yip Tat Cho told the accountant, who was not produced as a witness. however, to write that name in the margin of the preliminary agreement against the name of