November 26, 1906.)
CHINA OVERLAND TRADE REPORT.
Tuesday, November 20th.
IN SUMMARY JURISDICTION.
PROMISSORY NOTE DISPUTE.
Mrs. P. Watling sued Mrs. R. White to recover $424, balance due on a promissory note dated July 7th.
Mr. E. J. Grist (of Messrs. Wilkinson and Grist) appeared for plaintiff and Mr. P. W. Goldring (of Messrs, Goltring aud Barlow) for defendant.
Mr. Grist I understand, my Lor, that the defendant admits the making of the note, but that she proposes to set up a defenes of fraud and misrepresentation.
His Lordshin (to Mr. Goldring) - Da you admit the bote?
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Cross-examined-There was not a distraint for reat, or an execution issned. She did not owe any rent and left the house because sho Plaintiff was offered $500 for the good-
was ill
would give Mrs White that price for it now. Plaintiff's daughter wrote the promissory note.
Mr. Goldring submitted it was perfectly clear the plaintiff represented to def-ndant that the fittings belonged to Her, and that she was selling them. It was quite impossible that the promissory note did not contain some allusion to them. but either of the bills produced said a word about goodwill. This was a case in which defendant had been, by fraudulent misrepresentation, induced to sign a promissory note
Mr. Grist contended that the onus was on defendant to prove that the bill was drawn up for the purpose of decaiving, and that plaintiff knew it was wrong. The worst finding his Lordship could come to against plaintiff would be that she hat made a mistake. On the eridence he could not take the view of fraud. Regarding the mistake it would be purely as to amount. Part of the amount claimed must have been for the goodwill of the house, as his Lordship knew there was always a certain amount paid for this.
taken more consistency than paragraphs in the newspapers could give it, it would have been the duty of the Attorney-General to have brought it before the Court. But, wisely. the solicitors whose conduct has been impugned BEFORE MR. A. G. WISE (PUISNE JUDGE). will of Zetland House by a Mrs. Cook, and bave themselves brought the matter before me and asked for protection, and I am certain that if it is a proper case the Court is bound to afford them that protection, and will do so in the most ample and effective way it can. The facts are as brief as they can be certain in- structions were in fact given to Messrs. Wilkinson and Grist by John Clifford Wilkin son of Kobe to commence an action against & Shu for infringement of their trademark in tansan mineral waters. Correspondence followed with regard to cases against other alleged infringers of the trademark, Mr. Wilking son,the judgment debtor, was invited to telegraph the word "proceed if he wished the actious proceeded with, leaving their conduct in the hands of the solicitors and counsel. Later, when a compromiss seemed to be in process of being effected he was invited to telegraph the word "withdraw" if he decided to with. draw. That is to say, to withdraw from actions which he knew were already begun in accordance with his previous instructions. These are the statements as reported in the Kobe Chronicle. The statements as re- ported are as follows:-J. C. Wilkinson, defendant, who appeared to defend the case in person, stated through his interpreter. Mr. Kuroyagi, that he refused the claim. proceeded to depose that he had instructed the plaintiffs to take steps against Ea Shu and Co. He denied having asked them to pre-ed against Ritchie and Co., the Nippon Yusen Kaisha and Iram Hiaz Long as alleged by plaintiffs. They took steps against these three firms entirely ou their own responsibility, with out being asked, and for these latter actions the costs of the Court and remuneration totalled a very high figure. Plaintiffs had no legal grounds whatever for demanding remuneration of services which were unasked for. Defendant added that he had paid 100 yen in April 193 for services rendered on instructions, and that was quite enough. In answer to the Court, defendant stated he had paid 1,000 yen for the services of plaintiffs in conducting the action against a Shu and Co. Defeudant denied having applied to plaintiffs to take action against the Nippon Ynsen Kaisha and two other firms, Knowing that plaintiffs were making preparations to bring action against the three firms, he wrote and instructed them to refrain from taking such action. The facts are sufficiently before the public to justify notice being taken of them at once; and further, it is clear on these facts that I have sufficient information before me to express an opinion in the absence of the judgment debtor, and his absence ought not to preclude me from doing so, and so affording the solicitors the pro. tection they ask for. On these facts there is
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not the shadow of a doubt that Messrs. » il- kinson and Grist acted in every step within the scope of their instructions, and to bring the matter into narrower compass within the ex- press words of their instruction, and that if they had not acted as they did they would have rendered themselves liable to an action for breach of instructions. These things being stated, and the jurisdiction of the Court being clear: this Court on this motion declares that having regard to the written documents, Messrs, Wilkinson and Grist had express authority from the judgment debtor to take each and every step on his behalf; that the statements made, in this respect by the judgment debtor to the Japanese Court are statements calculated to prejudice them in their professional capacity! and also calculated to deceive the Japanese Court, and that those statements as they appear in the reports laid before this Court are without any foundation. I can only regret that this Court has not the means at its command for bringing this declaration to the notice of the Japanese Court.
On Nov. 22nd Mr. G. P. Lammert, auctioneer. offered for sale the wreck of the hulk Stanfield as she lies at Yaumati with all anchors, chains and appurtenances. The purchaser was Yaumati shipbuilder, Mr. Wing Cheung, bought the weeck for $725.
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Mr. Goldring-We admit the making of the note. It appears, my Lord, that the plaintiff, Mrs. Watling, was until July this year the tonant of the second floor of 14 Queen's Road; Central, known as Zatland House. Ahont that time an execution was put in against her, the majority of her furniture was put into &E auction room and she left the premises. The defendant then made arrangements with the landlord for & fresh lease, and being in need of some mare furniture made arrange. ments with the plaintiff to take over cer'ain articles. She was informed by the plaintiff that the electric light fittings on the prem, ises belonged to her, and was told that the plaintiff had paid a sum of $30 for such fittings. The plaintiff made out a bill, including the fittings, which amounted in all to $535, and on the faith of this bill the defendant signed a promissory note. It now transpired that the plaintiff never purchased the fittings at all, that they belonged to the Electric Light Co., and in point of fact the plaintiff was very much in arrears, eseu in payment of rent for the fittings.! His client admitted liability for the beds and other articles of furniture taken
over, and having already made one payment on secount hal paid the balance she admitted due, 8124, into Court Mr. Goldring called
W. H. Wickham, manager of the Hongkong Electric Co., who said the electric light was put into Zetland House about May, 1902. Plaintiff paid over $30 for the hire of workmen and the
fittings. Mrs. Watling owed the Company, $120 in respect of hire of fittings and rent of current. Her statement that she paid $3 4 for filings was quite incorrect.
Cross-examined - On February 26th, 1903, the Company offered to sell the fittings to Mrs. Watling for $188. The fittings which could be taken away now would be worth $49 or $50. The others the Company could not take away. They put the fittings in cheaply for plaintiff. The total cost of the whole installation put in would be about $230. Immediately after it had been put in they could have got back about half
that amount.
Mrs. White said she had been proprietress of Zetland House three and a half months. When she took possession witness agreed to purchase the furniture and fittings from Mrs. Watling for $300, and to pay this amount by monthly instalments. She did not read the promissory note before signing it, but plaintiff said the fittings belonged to her. She said she paid and would only charge witness half. Defen lant found out they were not plaintiff's after entering the premises, when she went to se the manager of the Electric Company. When Mrs. Watling heard witness wanted the house she called on her and asked her to buy some of
the furniture.
Cross-examined-Witness made no arringe. mants to pay for the goodwill of the house, as it had a very bad name.
Mr. Grist called
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Mrs. Watling, who said the defendant first. offered to buy house and all for $4,000. Then she found she could not arrange to pay the amount, and it was agreed that she should take over house, goodwill and fittings for $400. addition to this amount she bought furniture to the extent of 8'35, and the promissory note was signed for $535. Ilaintiff knew nothing about the bill produced for 8300 for electric light fittings. It might have been written by some of the boys in the house, but she did not authorise them.
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His Lordship considered the allegations of frand and misrepresentation must fall. With rference to the two bills it looked rather odd, but this was not a c ș- of a pro widow being caj led by some business man into siguing a promissory noto, The matter was between two women in the sam- eliss of business, and there was no excuse for defendant not having read the note before signing il. At first blush of the thing he felt inclined to give judgment for the whole amount, but since Mr. Grist had given him a lo phols through which to escape, he would give judgment for the amouut in Court plus $150, and make an order for payment out.
Wednesday, Novembar 21st,
IN SUMMARY JURISDICTION. BEFORE MR. A. G. WISK (PUISNE JUIKE).
ALLEGED FALSE IMPRISONMENT.
Cheang Li sued Cheang Tsui to recover the sum of $1,000, bing damages for false im- prisonment.
Mr. A. Lang (of Messrs Deacon. Loker and Deacon) appared for plaintiff, and Mr. C. F. Dixon (of Mr. John Hastings' office) for defendaut.
His Lordship In reference to this particular instancs I ordered pleadings. It is an action for false imprisonment. The statement of claim states that the plaintiff was arrested by the defendant, and that he acted in the capacity of clerk and accountant to the defendant in Hongkong. The statement of defence admits the first five paragraphs includ ing that about a fortnight ago four actions were brought against these two paintiff and defendant. In one action no solicitor appeared and julgment was given against them as partners. In the other actions they were represented, and the second defendant now says he was clerk and accountant to the
It seems first.
o me you had better amend or you'll both be getting into trouble.
Mr. Dixou-I was going to submit that It
men, the
this actiou has b-ea misconceived. is not an action for false imprisonment.
His Lordship- It has ben admitted that plaintiff and defendant were partners in three previous actions. Now they say one is clerk and accountant. They cannot be both.
Mr. LangThat makes no difference to the claim, my Lord,
His Lordship-Except that I won't take the pleadings when they furnish false particulars; The parties are liable to go to jail. What are you, plaintiff or defendant?
Mr. Lang--Plaintiff.
His Lordship-Read your pleadings. Mr. Lang (fter reading)-That is simply reciting the charge that is brought against him. His Lordship-If you are going to go on with the case you must both amend. I am not prepared to take the pleadings as they stand. Mr. Dixon-I am prepared to consent to an amendment of the pleadings at once. His Lordship would not allow this.