274
IN SUMMARY JURISDICTION.
BEFORE MR. T. SERCOMBE SMITH
(PUISNE JUDGE).
CONTEMPT OF COULT-PERJURY.
Cheang Moon Chai claimed $25, money deposited for due performance of a lease. The defendant, a fishmonger, (denied receiving the money and said his name was not Tse Fuk Tim, as stated, but Tse Ping Fuk. He called three witnesses, two of whom said his name was Tee Fuk Tim
His Honour-It is quite obvious you have been lying hard. Have you any reason to give why you should not go to prison ?
Defendant-I should ask to have the case adjourned to get legal advice.
His Honour repeated bis question. Defendant-I do not see why you should send me to prison.
His Honour-The reason is, you are not speaking the truth. I give judgment for the plaintiff with costs, and I give you fourteen days' hard labour.
VOJACEK v. VON UFFEL: PILLIS . VON
UFFEL.
Judgment was given in this case. Mr. H. W. Looker appeared for the plaintiffs, and Mr, E. Pollock, K.C., instructed by Mr. Hurst house (of Messrs. Dennys and Bowley) for the defendants.
H.
His Honour
said :-These
are two sations brought by Vojacek and Pillis against the
Von Uffel. same defendant They were heard together, because their circumstances overlapped and they were based
on
for like claims to remuneration
services
rendered. Both plaintiffs must succeed but not to the extent of the whole amount of their claims for $400 and $250 respectively. The defendant was sued in his private capacity and not as a partner in the firm of Schwer, Uffel and Co. It appears that, for some time past, the defendant had been blamed by his partners in Europe for his manner of conducting the business in the East and that matters culminated in an un- successful action for dissolution of partnership being brought in Hamburg. The claims of the two several plaintiffs are for remuneration for work alleged to have been done by them in helping defendant to prepare answers to the complaints made against him in his partners letters and to the charges formulated in the writ in the Hamburg action which was served here on the 6th December, 1904. The claims further relate to work done in the preparation of copies of a private code to be used by the defendant for working with agents other than his partners in Europe, who he alleges, were not carrying out the partnership agreement. The defence to the claims is threefold. First it is contended that the defendant is wrongly sued in his private capacity because the work done was done for his firm. Secondly, it is ontended that there was no express contract to pay for any extra work done, and that the case of Bell v. Drummond 2 Peake N.P. cases 45, lays it down that a clerk engaged on a fixed stipend
These
Were .the
is not entitled to farther remuneration if his -work increases, unless there is an express con.. tract by his employer to pay for such extra work. Thirdly, it was said that the amounts claimed were grossly in excess of the value of the time and labour expended by the plaintiffs on behalf of the defendant, if the Court held that the work was done for the defendant in his private capacity. grounds of defence applicable to both claims. As regards Pillis, there was another defence, viz: that he had already been paid, because Von Uffel had handed money to Vojacek to pay to Pillis. I have come to the conclusion that various suma
from totalling $185 were time to time handed by defendant to Vojacek to
Pillis pay to so paid. But if a master bed money to one servant to be paid to a second servant and that first servant fails in his duty, the master is clearly liable to pay the second servant, and has a remedy against the first servant. As regards the three general defences already mentioned, I am of opinion that when a partner is called upon by his other partners to give explanations of how the business is being conducted, such partners may call on the servants of the firm to do the extra work in. volved in laying the affairs of the firm before
I
and
"
were
not
THE HONGKONG WEEKLY PRESS AND
the absent partners, and that such servants are not entitled to additional remuneration unless it has been expressly contracted for. I cannot therefore allow any portion of these two claims which relate to work of this nature: for I hold that Von Uffel made no promise to remunerate for such extra work. But when it comes to the servants of a firm being employed to do extra work in helping one partner to prepare his defence to an action brought against him by the other partners, I am of opinion that these servants are no longer working for the firm but for the individual partner as a private person. If such work is done with the know- ledge and sanotion of the one partner, the law implies a promise by him to pay reasonable remuneration for services thus rendered. The case of Bell v. Drummond is therefore clearly A@ distinguishable from the present casek. already intimated, I agree with the third ground of defence that the claims are both far too large. With respect to the private Code, I cannot be influenced by the views of the defen- dant as to whether it was being prepared for the firm or for his private use. By the terms of the partnership agreement, his partners in Europe were to be the firm's agents in Europe. This prohibited the defendant from employing other agents in Europe. And so long as the partnership endured, the defendant was not at liberty, without the consent of his partners, to employ other agents. Such consent was never given. Therefore, it was only in a case of dissolution of partnership that the defendant would be entitled to appoint new agents who would be his agents or the agents of any new firm which might be constituted with him as a I am of opinion, therefore, that the work on the private code was work done for Von Uffel in his private capacity.
partner.
In the case of Pillis, I allow $65. That was the sum which the defendant says he told Vojacek to pay to Pillis up to the 15th January, after which Pillis did firm work, if any work. If this sum had not boon enough, I am sure Vojacek would not have cefrained from demand- ing more. And though Pillis was the servant of Von Uffel, yet his work was done under the superintendence of Vojacek.
As regards Vojacek's claim, I must preface my finding by saying that I think that Von Uffel has given the more reliable account of what occurred. I need not say more. I find that Vojacek did some work for Von Uffel in connection with the private code; but it was For it I allow him $10. very slight work.
|
[May 1, 1905.
Mr. Beavis said he understood that the only point Mr: Almada raised was that the docu- ment was not a promissory note and, therefore, not negotiable.
Evidence for the plaintiff was led. Mr. Almada called no evidence.
The arguments are set out in His Honour's judgment.
His Honour said:- -This action is between Li Fung Man and two persons called Tam Chak Ữ and Tam Sun Ting. Tam Chak signed a document in favour of the Lai Fung Bank, and Tam Sun Ting was guarantor of that document. That document was endorsed by the Lai Fung Bank to the plaintiff, who sues the maker, Tam Chak U, and the original guarantor, Tam Sun Ting. The document is in the following words :---
("I) have now borrowed from the Lai Fung Bank the exact sum of $1,000 in current bank-
exsot It is optional to notes.
re-pay- ment at any time and no default will be made, This is proof.
Guarantee for re-payment Tam Sun Ting,† Kwong Sui 30th year 6th moon 18th day (30-7-04)
Tam Chak U True handwriting,
(Endorsement on the back)
The money in this note please hand over to Li Fung Man to receive.
Kwong Sui 30th year 12th moon 18th day (23-1-05)
Shi Wan Chi handwriting
(Chop) The Lai Fung." The defence is that this document is not a negotiable instrument: that only the original party, the Lai Fung Bank, to whom the docu- ment was given, could sue upon it and that, therefore, the present plaintiff, Li Fung Man, not being the party to whom the document was made òught to be non-suited, because he has no cause of sotion against the maker and guarantor. And it is said that the only way by which could accrue to the plaintiff would be by a written notice of assignment given to the original debtors.
Cause of action
I remembered in the course of argument that a few years ago I delivered judgment in an action very similar to the present, and on looking up the records I find that in that action No. 1,056 of 190, Chan Yik Cho . Chan Po Shan, the plaintiff claimed from the defendant $600, money due on a promissory Vojacek also helped Von Uffel to prepare for note, dated the 7th April 1900, made and given the trial of the action in Hamburg. He worked by the defendant to one Li Lai Chiu and at this for about a month from 6th December endorsed over by him to the plaintiff. The to say the 10th January; but that he worked only difference between that document and the on an average 5 hours overtime a day for that one in the present action is that the following period, I do not believe. Moreover, I hold that words occur in the document the subject of the "No default will be made." he was never paid at the rate of $1 an hour or present action:-" at any other rate, for overtime work for the In the document the subject of the former firm. He is wrong, therefore, in computing action these words did not appear. It is
on the basis of 81 his claim
an hour, argued for the plaintiff that these words make I am aware that overtime work is more highly all the difference, and that they are words from paid than work in ordinary hours. But which a promise to pay on demand can be allowing for that, I am of opinion that a sum implied. That is, those words read with the of $50 will adequately compensate him. He has words which immediately precede them, mean received $185 out of firm money to be paid to "You can come and ask me for this money st Pillis and has not paid it. That sum may have any moment, and when you ask me for this to be accounted for later: but I cannot set off money I will promptly pay you."
In the former action I reviewed the firm money against money owing personally from Von Uffel. There will, therefore, be judg-authorities at some length, and I made these ment for Messrs. Vojacek and Pillis for $60 | remarks :—
"These five cases are the only cases which and $65 respectively with costs. There will be
"I can
find in the reports in which an two sets of costs up to the hearing, but only one set of costs for the hearing.
implication of a promise to pay has been "deduced from language which did not contain
an explicit promise to pay.
Wednesday, 26th April.
IN SUMMARY JURISDICTION,
BEFORE MR. T. SERCOMBE SMITH (PUISNE JUDGE).
li fung kan v. TAM CHAK U AND TAM
SUX TING.
This was a claim for $1,000, due on an alleged promissory note dated 30th July 1904, given by the first defendant to the Lai Fung Bank, and secured by the second defendant and endorsed Mr. C. E. H. to the plaintiff by the said bank. Beavis (of Messrs. Wilkinson and Grist) appeared for the plaintiff, and Mr. Almada e Castro for the defendants.
+
64
64
44
#
· Each of these five cases contain words which manifestly indicate that an act is to be done
by the person who gave the instrument: from "this is inferred a promise to perform that "act. The money is to be paid by the giver of "the instrument: or the giver directs himself "to pay the money or the giver is-to pay on demand. The principle governing "these decisions appears to be that where a person who makes an instrument uses fanguage therein which unmistakably points "to an sot to be performed by him he thereby "promises by his language to perform that not.”
44
44
Now I have already raid there is a difference between these two documents. the old document and the present one. I remember that in deciding the old action I felt regret, that I was