April 13, 1901.]
SUPREME COURT.
Thursday, 4th April.
VERSAL SIN ORIGINAL JURIS: 10 ION.
BEFORE HIS HONOUR SIR JOHN CarriNG- TON, C.M.G. (CHIEF JUSTICE).
LUK LAI CHO V. T. H. KINGSLEY,
The following is the judgment delivered by His Honour Sir John Carrington, C.M.G. (Chief Justice) at the Supreme Court on Thursday, the 4th inst., in the above suit, which was brought to determine the legal rights of the parties with -respect to a contract for the sale of a Marine Lot at Kowloon.
Mr. H. E. Pollock, K.C., for Mr. J. J. Fran- cis, KC (instructed by Messrs. Deacon and Hastings) appeared for the plaintiff, and Mr. E. H. Sharp (instructed by Mr. C. Eweus), appeared for the defendant.
The judgment ran as follows:-In this case the plaintiff asks the Court by its decree to order the defendant to specifically perform a contract for the sale by him to the plaintiff of Kowloon Marine Lot No. 39 for the sum of $325,000 on the terms mentioned in the petition and to execute a proper deed of conveyance to the plaintiff upon payment of the purchase
money.
The facts of the case are so little in dispute that no oral evidence was taken at the hearing, but the case was argued upon the admissions contained in the pleadings and upon certain documentary evidence which was put in by con-.. sent. The facts appearing in this way may be shortly stated as follows:-
The plaintiff resides in Victoria in this Colony, while the defendant generally resides at Shanghai. The defendant is, or at any rate at the time of the issue of the writ was, the regis tered owner of Kowloon Marine Lot No. 39. It was stated by Mr. Francis, counsel for the plaintiff, with the consent of Mr. Sharp, counsel for the defendant, that at the time of the con- tract in question the Lot was in the occupation of certain tenants who were storing ecal on it, and the last of these tenancies expired on the 31st December, 1900. Apparently the delendant wished to dispose of the Lot, and in October last Kinghorn and Macdonald, consulting mechanical engineers and surveyors, were his agents in the Colony and were authorized by him to obtain offers for the purchase and sale of the Lot. It is material to consider what took place in the way of Kinghorn and Macdonald receiving and transmitting offers before the plaintiff's offer was made. On the 3rd October they telegraphed to the defendant at Shanghai inquiring whether they should sell for his ac- count for $300,000. On the following day they wrote a letter to the defendant in which they mentioned this telegram and said that, at the time of writing, they had not received any reply to it. They went on to say that, since their telegram had been despatched, they "had receiv- ed a better offer and would advise him to accept the sum of $320,000, less the usual brokerage,
as soon as he could."
To this letter the defendant on the 13th October sent a telegram in reply in the following terms accept the offer $320,000 net, if you cannot do better, but try all you possibly can do to get $5,000 more. Purchaser will be compelled to take over Government con- ditions of sale.
CHINA OVERLAND TRADE REPORT.
this little telegram that the noise of battle rolls.
On the same day, on receipt of this telegram, Kinghorn and Macdonald wrote the following letter to the plaintiff :—
20th October, 1900.
Lnk Lai Ch
Dear Sir,We are now in a position to accept your offer definitely for the purchase of Kow. loon Marine Lot 39 for the sum of $325,000 net and will not enter into further negotiations with any one.-Yours faithfully,
807
I hope you will be able to arrange this, mat ter without much trouble na
my fault. I had no right to give them at all, and only my anxiety to have the settled and my not understanding the telegram can be my excuse, :14
→ Yours faithfully,||-
JOHN W. KINGHORN," On the 27th October the writ was issued. ** On the 30th October the defendant arrived in the Colony, and on the 5th November he sold the Lot to the China Commercial Co., Limited, KINGHORN & MACDONALD." for $325,000 and received the purchase money. Terms of payment to be 10 per cent. cash and. On the 16th November an offer was made by the remainder in six months from date." the plaintiff, through his solicitors, to purchase On the same day Mr. Kinghorn telegraphed the Lot for $325,000 "cash down on com to the defendant at Shanghai as follows:-Ipletion," but the answer made to this offer by have sold to-day. I have arranged for the the defendant's solicitor was that the Lot had payment within the time mentioned."
been already sold as above-mentioned. This offer was made without prejudice to the position taken up by the plaintiff in this suit. mar
To this telegram the defendant on the same day sent the following telegram in reply I confirm sale of Yaumati lot only if terms are in accordance with my telegram 20th October payment in full to myself telegraph me when documents are all in order and payment in full can be made see Deacon Hastings"
On the 22nd October Mr. Kinghorn tele- graphed to the defendant at Shanghai saying that the sale was suspended and asking him to wait until he received his letter of the same date. This letter was in the following terms:-
Hongkong, 22nd October, 19.0. T. H. Kingsley, Esq..
65
Shanghai.
Dear Sir,- On the 3rd inst. I sent you a wire saying "Shall We sell for your account $300,000," and received a reply on the 10th inst. saying that our offer had been forwarded to you at Tientsin. In the meantime I wrote you on the 4th inst. increasing the offer to $320,000 and advised you to accept it; on the 13th inst. I received a wire from you saying I accept your offer $320,000 net if you cannot do better, but try all you possibly can fire thou- sand more, purchaser will be compelled to take over Government conditions of sale, wire reply Shanghai, will most likely arrive there 18th October.
On the 19th inst.I sent you a wire saying We can sell $325,000 piyable 10 per cent. cash remainder make the time six months what com..
mission will be allowed, and received your reply on the 20th Cannot accept less than $325,000 net cash," and on, the same day I re- plied, "We have sold to-day, we have arranged payment with (in) the time mentioned," and received your reply on the 21st, "I confirm sale Yaumati lot only if terms are in accordance with my telegram of 20th October payment in full to myself telegraph me when documents are all in order and payment in full can be made see Deacon Hastings.
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In this state of facts issues were settled for the determination of the questions in contro- versy between the parties. The defendant in his answer set up the defence inter alia that the Statute of Frauds had not been complied with, and the first issne therefore raised this question. It was in the following terms :
Assuming that Messrs. Kinghorn and Mac. donald were acting for and on behalf of the defendant io writing the letter of the 20th Octo bor, 1900, set forth in paragraph 8 of the plain- tiff's petition, and assuming further that they had anthority from the d-fendant to write the letter, is the letter a sufficient memorandum in writing under the provisions of the 4th section of the Statute of Frauds to charge the defen- dant upon the contract therein referred to ?"
On its
This issue is of vital importance to the plain. tiff, for if it is decided against him his case is at an end. It was argued by Mr. Sharp that the letter is defective under the Statute in not containing the defendant's name or any descrip tion or identification of him, and that there is nothing in it to show that Kinghorn and Mao- donald signed it as agents. But it may be observed that this latter point seems to be pre- cluded by the form of the present issue, which says in so many words that, for the purposes of the issue, Kinghorn and Macdonald are to be assumed as having acted for and on behalf of the defendant in writing the letter. But even if the point were not precluded in this way, I do not think it could avail the defendant. face the letter is an agreement which amply satisfies all the requirements of the Statute; the only difficulty which arises is that it is shown by parol evidence that the apparent ven- dors are in reality not agreeing to sell on their own account but as agents for the actual vec- dors. But, as was said by Park, J., in Wilson v Hart, 7 Taunt. 303, "it is the constant course to show by parol evidence whether a contracting party is agent or principal. That case, it is true, was decided on the construction of the 17th section of the Statute, but this section in its terms as to the kind of writing required, when 1- required at all, almost exactly follows those of the 4th section. Jede
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Now I am afraid I have made a dreadful mess of it. Immediately on receipt of your first telegram on the 20th, viz. Cannot accept less than $325,000 net cash," which I thought refer red to the question of commission only, I gave them a note saying that their terms as to time were accepted, and then did what I ought to have done at first, i.e. wired for confirmation In answer to this objection of the defendant, of the time, which your next telegram entirely Mr. Francis relied on Filby v. Hounsell, [1806]. upset, as you then distinctly say payment in full.2 Ch. 737. In that case, which was decided Now the question is, what is to be done? I under the 4th section of the Statute, the vendor's have consulted Messrs. Deacon and Hastings name was omitted from the conditions of sale and they advise me to write and explain the by auction of a house and from the indorsed whole matter to you and wait your instructions, form of contract to be signed by a purchaser." which I hope you will send by wire if possible. The house was not sold at the auction; but The buyers have offered me the 10 per cent. subsequently the defendant sent a letter to the this morning which I refused to accept as I do auctioneers, in their own name, offering to par- not care 10, nor do I feel justified in committing chase the house for £350, and stating, that if you any further until I have sent you an ex- the offer was accepted he would “sign contract plauation. The reasons that tempted me to on auction particulars." The auctioneers replied. make this blunder was the incorrect reading of by letter stating that on behalf of their client your tele.ram of the 20th inst partly induced (who was the vendor) naming her, they accept- by the fact that nearly the whole of the grounded the offer, "subject to contract as agreed.” is rented and it will take some time to clear it It was held that as the offer contained the of the large quantity of coal stored on it, and at names of both contracting parties (though one least three months would elapse before the was only agent of an undisclosed vendor), on On the following day Kinghorn and Mac-buyers could take possession, and all the large its acceptance there was a valid contract within donald telegraphed to the defendant at Shang-
the Statute of Frauds. In the course of his hai in the following terms: We can sell three
judgment Romer, J.
-at p. 739 -—« hundred twenty-five payable 10 per cent. cash
point arising on the ples of the statute is that remainder make the time six months what com-
which concerns the name of the vendor. mission will be allowed. "
defendant says that he has signed which directly or by sufficient refere forth ho the vendor is. And tru the
the
On the 18th October the plaintiff made to Kinghorn and Macdonald an offer to purchase the Lot for $325,000, less brokerage to the pur. chaser and less an amount paid by the Govern- ment to the defendant by way of compensation or refund for a portion of the Lot then lately resumed by the Goverment. The plaintiff fur- ther proposed to pay 10 per cent of the pur chase money on acceptance of this offer and the balance in six months.
To this telegram the defendant on the next day, the 20th October, sent the following tele- gram in reply →→→→ Cannot accept less than three hundred twenty-five net cash." It is round
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land sales that I have heard of here have been based on somewhat similar terms, and I don't think it would have been possible to obtain such a high price had I not allowed the time payment, The buyers seem determined to hold me to my note, in fact their lawyers notified me to that effect this morning, but I have told him Ion do nothing until I have further instruo tions from you.
per
names vendor
offer of purchase signed by