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September with the broker. They all went down to Gilman's Bazaar. The defendant look. ed at the houses from the outside. Then they went into the ground floor of house No. 34. The defendant looked round, going into the kitchen and cook-house, and then upstairs. This was the only house which the defendant inspected, the defendant saying there was no occasion to inspect the other houses as they were all prac tically the same. He never told the defendant that the houses were family houses and that it would be difficult to inspect them. He told him that they were all shops and that he could go and look at them any time. After the signing of the Chinese agreement the defend- ant told him he would pay the bargain money in two or three days' time. When the time was due the defendant sent him a letter stating that the money was not ready and asking for two days further time and he agreed to let him have an extension of time. A few days afterwards he met the defendant at Messrs. Wilhinson and Grist's office, and while an agreement was being prepared the defendant examined a plan of the property which was on the table. After examining the plan the defendant went out to get the bargain money. He borrowed the plan in question from Fung Wah Chuen. The plan produced was a copy of the same plan. On the plan which was lying on the table at Messrs. Wilkinson and Grist's office the measurements as to the length, breadth and the area were given exactly as on the plan before him. The defendant was examining the plan about half-an-hour. He then went away to get the bargain money. The agreement was signed on the same table that the plan lay All the $6,000 was paid in bank notes. The further hearing was adjourned.
THE HONGKONG WEEKLY PRESS AND
[December 1, 1900.
The Chief Justice-You must remember there is an alternativa claim for damages.
Mr. Francis-(h, yes, there is. He added that this claim for damages was only in the alternative in an equitable sense of the word. It was not put in as a common law claim for damages. The defendant said he refused to complete the contract on equitable grounds. He said he entered into the oɔntract under a mistaken impression, and he said that this was not a mistake solely and entirely owing to his own fault and carelessness, but a mis- take which originated in the misdescription of the property which they in the first instance furnished to him. If that turned out to be 80
tions providing for back-yards. Some time in | dinary common law suit. They were not ask- November of last year the defendant sont ing for damages for breach of contract but him several letters asking him to release that an order might be made insisting upon him from the agreement as to the purchase the contract being still in foros and com- of the houses. He did not answer any of thess polling the defendant to specifically parform, letters in writing, but he saw the defendant not by paying damages, bat by taking over and once on the subject about the date of the first paying for the property. or second letter. The defendant told him he was going to Manila and that he wished to hand these ten houses back to him. He begged him to cancel the contract, saying that he was willing to pay him one or two thousand dollars compensation. This the witness refused to do, adding that the price of the houses was going down about $10,000, and to pay him one or two thousand dollars would not do. He never agreed to cancel the contract in consideration of the defendant paying him $42,000 or any other specifio sum. It was because he de- clined to cancel the contract on any account that he did not reply to the defendant's letters. He did not remember at any time giving the defendant the second memorandum produced. On the payment of the bargain money the defendant asked him to endeavour to secure him a purchaser for the property, and in order to show them to any probable purchaser he copied certain partionlara from the plan. The defendant subsequently asked him for the paper containing these figures and he let him have it. He knew a clerk in Wilkinson and Grist's office called Lee Ah Sing. He did not think he gave him the paper before giving it to the defendant but he might have done so. It was on the 30th November that the defen- dant told him the measurements were not correct, but he did not show him the memoranda produced on that day. The defendant took him in to see young Mr. Deacon, He did not see any papers relating to this mat- tor
There Mr. Deacon's desk. on heaps of papers lying on Mr, Deacon's desk at the time. Mr. Deacon put some questions to him, but he did not answer. When he was just about to leave the office the defendant said to His Lordship gave judgment in this case, his | him, "The measurements
are not correct, out the judgment being in favour of the plaintiff for the and I am not going to sum claimed and costs against the second defen-contract." He replied, What! you are not dant, and judgment for the first, third, and fourth going to carry out the contract? You defendants and costs.
have inspected the houses; you have also inspected the plan; the sale should have been put through on the 20th November; and you on that day asked for one day's extension of time as the money was not ready. To-day is the day for completing the sale and you now raise the question that the measurements are not correct. You should not have taken me here to see Mr. Deacon." Witness was very indig. nant and went away. It was not true that as he was going away he said, "If it's wrong, put it right."
on.
IN SUMMARY JURISDICTION.
BEFORE HIS HONOUR T. SERCOMBE SMITH (ACTING PUIsne Judge).
LI U SAM V. LAM TSIT KWAI AND OTHERS.
The plaintiff, Li U Sam, of the Tang Lou village, in the New Territory, sought to recover from Lam Tsit Kwai, Lam Pam Kwai, Lam Pat Kwai and Lam Fan Kwai, of Shan Pui village, in the Yuen Loong district, $302, being the balance of principal and interest due on a promissory note dated 26th Jan., 1895, and given by the defendant to the plaintiff.
Mr. Grist (Messrs Wilkinson and Grist) ap- peared for the plaintiff, and Mr. Reece for the defendants.
Monday, 26th November.
IN ORIGINAL JURISDICTION.
BEFORE HIS HONOUR SIR JOHN CARBING- TON, C.M.G. (CHIEP JUSTION).
CHIU WAH V. CHUE KAN.
In this case (the hearing of which was re- sumed from Friday) the plaintiff is a trader residing at 54, Staunton Street, and the de- fendant a clerk in the employ of Messrs. Deacon and Hastings, solicitors. It is a claim for the specific performance of an agreement, the de- fendant counterclaiming for $8,000 deposited by him with the plaintiff.
Mr. J. J. Francis, Q.C. (instructed by Messrs. Wilkinson and Grist) appeared for the plantiff, and Mr. E. H. Sharp (instructed by Messrs. Deacon and Hastings) for the defendant.
The special jurors were Messrs. R. G. Showan (foreman), A. Haupt, P. Jordan, 8. Hancock, J. 8. Van Buren, G. Stewart, and J. M. Beattie.
!
The plaintiff, continuing his evidence, said the defendant asked him to arrange a mortgage for him and he did so for $45,000. When the bargain went off he had to take up the mortgage himself. The first price he asked for the pro- perty was $62,000, and the defendant offered him: $59,000. This was on the 19th or 20th September, 1899. In October and November last year, so far as his experience went, the price of land and houses was going down a little, this being in consequence of the new law in troduced by the Sanitary Board, who called upon property owners to make certain altera.
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The plaintiff was cross-examined at some length by Mr. Sharp. Two or three other witnesses were called, the whole of the evidence being concluded when the Court rose.
Tuesday, 27th November.
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IN ORIGINAL JURISDICTION.
that they misdescribed the property to any serious extent, and if as a matter of fact the defendant did enter into the contract under a greatly mistaken impression as to what he was buying, a mistake originating in a misdescrip- tion furnished to him by them-it was perfectly clear that they would not be entitled to a de cras of specific performance. So far as the first memorandum was concerned it would appear to have originated in a mistaken notion existing in the plaintiff's own mind for want of sufficient information, because he had not then seen the plan. He appeared to have got the statement as to the area from Mr. Fung Wa Chuen, from whom he purchased the property. He saw no plan himself before he entered into an agreement to purchase, and he conveyed the mistaken idea which had entered into his own mind into the mind of the defendant. With referencs to the second memorandum, he was perfectly willing to admit in the doubtful state of the evidence that it was given to the defendant at the time and place men- But as his friend. put tioned by him. it, the second memorandum was B little matter in the case, being merely an extension of the first. Before a mistake of this character could give rise to any equitable relief it must be clear that that mistake constituted the basis or foundation upon which the defend- ant entered into the contract. Therefore the two questions of fact which it seemed to him the jury had to answer were-first, it being admitted that there was a misrepresentation made by the plaintiff to the defendant as to the measurements of the property, was that mistake afterwards corrected by the exhibition of a plan of the property to the defendant? The second question was, did the defendant in fact, quite apart from the question of plan, enter into this contract in reliance upon that memorandum, or was that memorandum a mere incident in the transaction on which he was not relying at all? The defendant's case was that he was relying absolutely from the beginning to the end of this transaction on the statements contained in the memorandum. Mr. Francis asked from the defendant's education and from the nature of his
very
BEFORE HIS HONOUR SIR JOHN CABRING-employment was there any reason in the world
TON, C.M.G. (CHIEF JUSTICE).
CHIU WAH V. CHUE KAN. In this case (the hearing of which was re- sumed from Monday) the plaintiff is a trader residing at 54, Staunton Street, and the defen- dant a clerk in the employ of Messrs. Deacon | and Hastings, solicitors. It is a claim for the specific performance of an agreement, the de- fendant counterclaiming for $6,000 deposited by him with the plaintiff.
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Mr. J. J. Francis, Q.C. (instructed by Messra. Wilkinson and Grist) appeared for the plantiff, and Mr. E. H. Sharp (instructed by Messrs. Deacon and Hastings) for the defendant. The special jurors were Messrs. R. G. Shewan (foreman), A. Haupt, P. Jordan, S. Hancock, J. S. Van Buren, G. Stewart, and J. M. Besttie. The evidence being concluded, counsel de- livered their final addresses.
Mr. Francis said that the plaintiff was suing in this case for the specific performance of a contract which was entered into by the defen- dant with the plaintiff for the purchase of some property in Gilman's Bazaar for the sum of $60,000. The particular character of the suit in which they were concerned was not an or.
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why he should not have made these calculations himself? He contended, however, that supposing the plan had never been exhibited, from the very nature of the transaction the defendant did not and could not have relied upon that memoran- dum. Mr. Francis proceeded to deal with the evidence in the case, arguing as to the points raised therein.
Mr. Sharp, touching on Mr. Francis's admis- sion as to the second memorandum, said he could not pass the point over as his friend soomed dis- posed to do, because he thought the jury would agree that it was very vital indeed It was very vital indeed as concerned the trust worthiness and credibility of the plaintiff. It was sil. mitted in cross-examination by Mr. Fung Wah Chuen that some time before the signature was put to this agreement he had lent the plan of the property to the plaintiff. He submitted that it was perfectly clear from the evidence that these figures were taken from Fung Wah Chuen's plan in all human probability, as the de- fendant said, some time before the 22nd Septem- ber, when Fung Wah Chuen lent his plan to the plaintiff. His friend said they could not explain how the error arose in the first memorandum, He (Mr. Sharp) could, however, explain the