112
contract ander the following circumstances. It is al'eged that on the 4th of October, 1904, the plaintiffs sold to the defendants a £2,000 sterling draft at exchange 1/94 to be tak n up on the 30th November, 1901, that defendants failed to take up such draft on the due date and that plaintiffs, to ever themselves, sold a draft for £2,000 sterling at exchange 1/10 11-16, thereby losing $785.84 being the differen e between £2,000 at 1/97 viz. $21,912,86 and £2,000 at 1/0 11-16 viz $21,157. 2. The con- tract sued upon was in the following form:-
No margin al owed
DEUTSCH-ASIATISCHE BANK.
Hongkong, 4th ct., 1904. Messrs. Wui Shing Hing. Amount Usance Rate On Delivery Rmrks.
£2,0 0 0/d 1/10 Lon'n Oct., 1904. 1/97
Nov.,
Broker.
at his opti n
This form was endorsed Wai Shing Hing, Li Yuk-chee." The defendants resist d the claim on four grounds:-
(") That the Den'sch-Asiatische Bank are not proper parties to the ac ion :
(b) That the transaction was a gamble in differ- ences forbidden by 8 and 9 Vič-C-109 section 18: and, fai ing that Statut, by 7 Geo-II C-8:
(c) That Li Yuk-chee had no authority eithe direct or conferred by defendants' conduct to purchase forward drafts :
(d) That Li Yuk-chee in buying forward drafts wage: gaged in private transactions on his own behalf.
was a
As regards defence (a), it was the plaintiff bank which entered into the contract; that bank was therefore pro erly made the plaintiff, and it makes no difference that the ultimate liability for any loss would fill on the plaintiffs' compradore. As regards defence (b), even on the assumption that this tran-action gamble in differences, 8 and 9 Vict. C. 109- S. 18, passed in 1845, which rend red uch tran actions null and void i- not io force in this Colony; and 7 Ge. II . 8. (A.D 1734.) being An etto prevent the infamous Practice * of ot ck-jobbing," does not touch this cas So that we are thrown back on the Common Law which forbade only such wagers as tended to indecent evidence, or to d sturb the peac of were no' the individual or of society, and against public policy. This transaction is therefore not within the law. There being
in this Colony
against gambling in differences, it is not necessary to dec de het er the pr sent transaction was one
then no
law
Was
THE HONGKONG WEEKLY PRESS AND
We also sold for bank and paid for in cash. cash. We also deposite'l such drafts as security Obviously then the for loans from banks business of the bank had overflowed beyond the channels of business defined by the rules Li Ng-t'ing further said that the rule prohibiting
forbade contracts for sterling drafts
cou- tracts for future gold and silver bills only, and that his back never bought drafts to be pail We have got this far for at a future dite. then viz: that the rules of the bank prohibiting contra ts for the purchase of sterling drafts had been relaxed at any ate to the extent of the bank purchasing sterling drafts for cash The and not for settlement at a future date next question is, what authority if any do the ( rules confer on the assistants in the defendant bank? The preface to the rules says "We hope that our various assistants will be careful and just and united in mind and action so that riches may come in abundance and profits may
Enle 1 lays down that remain in perpotuity.” if an assistant secretly makes a contract for the pu chase of sterling, drafts he will be dismissed, I think that the inferencs to be drawn is that the assistants had power to tran act the business detaile in the rules and were only prohibited from buying sterlin: drafts.
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But this prohibition has been relaxed to the extent that the purchase of sterling drafts to be paid in cash and not at a future date has been practised by the defendant bank. It follows therefore that the assistants had direct authority to purchas sterling drafts for cash down and not on cre 'it.
In this state of affairs it is contended line between buy- for the plaintiffs that the
for cash and buying ing sterling drafts
80 fine that sterling drafts on credit is when it is proved that a person had actual author ty to purchase for cash, it is a fair inference that the same person had actual auth rity to buy on crs it; or at any rate that the actual authority to buy for cas', coupled with the p ove i anthority to sell s'erling drafts for cash and to pledge st rling drafts against loans, justify the inferenc that the defendan's hare held out Li Yak chee as having authority to transact all the classes of business usual in Ianks and therefore the authority to purchase sterling drafts to be settled at a future date. I have just spoken of the proved authority -to sll sterling drafts for cash, and to pledge sterling drafts against loans. The plaintiffs have shown that on seven occasions, Li Yuk-chee, purporting to act on behalf of the defendant, depos ted either sterling drafts or American gold of that nature or not. Defence (c) is, in my dollars or English sovereigns with the plaintiffs as security for loans, and that these transactions judgment, the only defence open to the Wai Shing Hing Bank If Li Yuk-chee was acting appear in the books of the defendants. They within the apparent sc pe of bis authority, have also shown that, on two occasions, the unknown motives by which he
Li Yuk-chee so'd, on behalf of the defendants.
drafts
the to
Chartered Bank actuated in
sterling making the contract do not
and that these exempt his principal the Wui hing Hing which paid realy money, Bank from liabili y: therefore defence (d)stands transactions are recorded in defendants' books. or falls with defence (c). Now the plaintiffs Upon the evidenc the conclusion force upon contend that they have proved (1) direct me as a jury is that the defoudants have, by authority to Li Yuk-che to purchase forward their e nduct, represented that their assistant drafts; (2) that te defend is hare by their | Li Yuk-chee had authority to purchase sterling conduct held out Li Yuk-chee as having such drafts to be paid for in the future. They authority; (3) th t the def ndauts made an offer authorised him to do certain acts of a class of compromise and t ereby admited liability.usual in their business as bankers and thereby From the introduction to the rul & and from the represented him as having authority to do other rules themselves framed for governing the bus: acts of the same class of business ness of the Wui Shing Hing Bank, Ï take the following extracts; "This Tong has purposely established in Hongkong the busiers of the Wui Shing Hing Bank especially doing th business of deposits nl loans and undertaking tle business of exchange, and sales and pur- chases of subsidiary coins and dollars." Again This firm pec ally does business in silver, deposits and kaus. and undertakes the busines: of exchange. It does not make contracts for the purchase of old_coin and ster ing drafts. If any ones cretly makes a contract of purchase, this wil Lot concern the firm, and the assistant will be dismissed." From these extracts it is clear that deposits, loans, exchange, and deal ings in silver were the business of the defendat bank, and that contracts for the purchase of -sterling drafts were excluded. But Li Ng-t'ing (who, I hold, is the managing partner of the defendant bank) says in evidence "We received deposits, leut money, bought and s·ld dollars and small coin, received remittances from Caaton, Fat-han and Maogo, and bought and sold sterk ing drafts. Sterling drafts were brought to our
"
i.
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the
wrong
As regards sme miscellaneous points in the case, I am of opinion that the presence character Wui on the | of
and back
the
of of the contract,
T50 Yuk-chee in two different characters by Li writing the third character in his name, are I think that he words at his immaterial. option "in the contract refer to the Wai Shing | Hing Bank and do not indicate that the contract was made with Li Yuk chee alone. The absence of the" chop" of the Wui Shing Hing from the contract does not affect the question whether Li Yuk-chee was held out as having authority :hat a' se ce means no more, on the facts of this case, than that the defendunt bink was, as was very likely the fact, ignorant of this particular transaction on the part of their authorised agent. If a tank is started it must be presamned, in the absence of expr ss notice to the contrary, to und~rtake the usual business of a bank. has been proved that the buying and selling of sterling drafts, without limitations as to the of such drafts, are part of the nature usual business of Chinese banks.
And it
Whether
by
the
[February 20, 1905. n offer of $1,100 or thereabouts was iii de
the defendants to compromise plaintiffs claims on this and other transactions, was a matter of very conflicting evidence. As I have been able to decide the case on other am relieved from expressing an grounds, opinion on that point and upon the effect of such an offer, if it had been mad~, as an admis- The books sion of liability by the defendants. of the defendant bank appear to have been kept The effect of the absence of any prop rly.
婴
referenc in them to, the present tra: saction extends no further, on the facts of this case than this, viz. that the defendants had no know. le lge that Li Yuk-ohead negotiated the c-n- tract now sued upon: this however canot affect the d-fendan's' liability. There will be judgment for the plaintiffs for $785 84 and costs. I certify for Counsel.
Mr.ollock applied for immediate execution. Mr. Ferrers-On behalf of the defendants I think I should have t me to consider your Judgment.
Mr, Pol ock--Will your L rdship give leave to issue execution immediately on the exp ration of the period, seven days, in which notice to appeal must be given.
Mr. Ferrers had no objection and the application was granted.
Thursday, 16 h Februa y.
IN ORIGINAL JURISDICTION.
BEFORE SIR S. II. BERK-LEY (Chier JUSTICE)
THE YAN CHEUNG FIRM V. THE SAN YEE CÓ.. LD
The hearing of this claim. for $11,991 dan- ages sustained by the plaintiff irm on account of the defendants' no.-delivery of yarn was con- clude. As before. the Hon. Mr. H. H. Sharp, K.C., instructed by M. John Hastings, ap- peared for the plaintiff firm; and Mr. H. E. Pellock, KC.. instructed by Mr. R. F. C. Master (of Messrs. Johnson, Stokes and Master) for the defendants.
The haring of evidence on behalf of the plaintiff firm ended, h Hon. Mr. Sharp said :
The evidence called is equally applicable to the second action between the same parti-s, Action No. 82 of 1904. As the contracts are identical in each case, when this case comes on for trial the evidence may be read. Each of ns might have to add something, but it would save an amount of time if this evidence is regarded as evidence in the second action, with
tnessps. liberty to call other witnesses. It is the same yarn.
Mr. Pollock concurred.
Hon. Mr. Sharp-And in the third action, so far as it is applica le this evidence might be read. The broker's evidence, for instance, is the same, and with other evidence ther is little difference. Instead of calling the samo parties their evidence might be rad.
is different ya n.
Mr. Pollock -I cannot concur in that, as it His Lordship-Wait till the hearing of the action.
Mr. Pollock-I have considered the case very arefully and the evidence given on behalf of the plaint ffs, and I must frankly admit It would be waste of that the case made by the plaintiffs is too strong to get over. time to call evidence which I do not think would affect Your Lordship's judgment. I think there are on or two points that still remain, bat they are points of law, so I do not intend to call any evidence. A pint I wish to raise is whether the plaintiffs can reasonably come before the court to recover a loss which they have not actually sustained, and the plaintiffs ask the court to award damages which they have not actually sustainel. There are 500 bale, for instance, which the plaintiffs went into the market and bought, and with reference to these, of course, damag-s must be paid. 1er- haps my fri nl wants an adjournment to consider the po.nt.
Hon. Mr. Sharp-No, not at all.
His Lordship this is Mr. Pollock's posi tin :-he do not call evidence of fact bat submi's that the plaintiffs have not shown any actual loss, and therefors no judgment för damages can b· given.
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