July 8, 1907.Į
liberty to insert one, and an inference had been drawn from the fact that the debts or rather their exclusion was not mentioned. Nor, may it beremarked, was their inclusion. Too great an inference had been drawn from the advertise- ment.
After referring to other exhibits His Lord. ship concluded: I entirely agree with the find. ing of the learned Puisne Judge.
1
CHINA OVERLAND TRADE REPORT.
alteration in the assignment was prior or sub-. action on the main points as to whether the sequent to execution, my decision as to which is mainly based on the evidence given by, and on behalf of, the plaintiff. I think the appeal should be dismissed with costs.
Wednesday, July 3rd.
IN SUMMARY JURISDICTION.
BEFORE MR. A. G. Wran (PUISNE JUDGE).
A DISPUTED CONTRACT.
of 4, Queen's Buildings, against the Kwong Action was brought by F. K. Tata, merchato
8595.32 being the amount of damages suffered Wo Cheong frm and another to recover by the plaintiff in consequence of the breach by the defendants of a contract dated April 3rd.
and Barlow; appeared for the plaintiff, and Mr. P. W. Goldring (of Messrs. Goldring
Mr. A. Holborow (of Messrs. Deacon, Looker and Descon) for the defendant.
Mr. Goldring said the plaintiff was a merchant who dealt particularly in molasses, and on April 3rd he entered into a contract with the defend ant for the sale of 374 cases. contract were that delivery was to be taken by The terms of the
April 30th, when the price was to be paid. On May 2nd delivery was not taken, aid a letter to take delivery within seven days. On May was written to the defendants calling upon them 8th, as the goods were still on plaintiff's bands. notice was given to d-fendant's so icitor that the goods would be sold by auction. Delivery not being taken then, the goods were sold by auction the result being the loss shown in the writ of absence of any special defence being raised, the Mr. Goldring submitted that in the defendant's solicitor was not entitled to raise
The Puisne Judge-This is an appeal from a decision of my own (sitting in Original Jurisdio- ! tion). The question arose on the transfer of the business, etc., of the Wab Hing Loong firm by some of the partners to the other partners. In the original draft of the memorandum of such transfer certain debts due to the Wah Hing Loong by the Wah Tai and Fang Shing firms were excluded. This admitted that this draft! was altered and in the document produced in Court and sued on those debts were included, so that the question before the Court was whether that alteration was made before or after execu tion. I was of opinion that it was made after and, therefore, of course, fraudulent and a forgery, and
gare judgment accordingly for the defendants with costs. Whatever doubts I may have had or
am supposed to have had on that point at that time, I have none now. This opinion was and is mainly based on the evidence of the plaintiff himself and his witness (the accountant). The plaintiff stated that previous to the date of the agreement the parties had not consulted and arranged that an account was to be made out that the price agreed upon excluded these debts, and it is obvious that the plaintiff was a party to that agreement. Further where the plaintiff goes in to give reasons for such exclusion, that the Wah Tai had a counter claim for $15,000 against the Wah Bing Loong, and they were evidently in fear and trembling that that claim might be successful and in that case their claim against the Wah Tai would be swamped and the Wah Hing Loong would be ruined. The accountant stated that he drew up exhibits and deducted the Fung Shing debts (which of course includes the Wah Tai defendants, as both stand on the same footing so far as this case is concerned) and he further states that on that basis the agreement was drawn up. It is, therefore, clear that up to the date of the execution of the assignment or possibly a short time before, the plaintiff had agreed for the exclusion of these defendants. He then says he changed his mind at the twelfth hour. I must say if the case had ended there and there was no further appearance on behalf of the defendants. I should have had to give judgment for the plaintiffs; I should have done so with great reluctance. course what happened was that when the plaintiff began to think that these debts had some value he, with his accountant, altered the assignment. On the appeal Mr. Pollock laid stress on certain exhibits. One was the advertis ments inserted by the plaintiffs and defendants respectively, and it is true that they con aio no reference to the exclusion of these debts, and it was, therefore, argued that this was evidence in favour of the contention that the alteration Was made in the assignment before execution. As to the exhibit 4, this had been characterised either directly or iu- ferentially by the defendant and his witnesses as a forgery. Mr. Pollock argued on this point that it was highly improbable the plain- Tiffs should have unnecessarily
gone in for forgery, on such a large scale and pressed the point that there was no object or reason for usuch forgery and, therefore, that, if the Cot rt came to the conclusion that exhibit 4 was no a forgery, this would throw such discredit on the evidence for the defendant as a whole that the court could not hold that the assign- ment was a forgery, as it would be, if the defendants' contention was correct. Although I agree that the authority or falsity of the defendant's evidenos as to exhibit 1 has a bearing on the credibility of the de fendant's evidence to the assignment. yet holding as I do (oa the evidence as a whole) that the altera ion in the assiga. ment was made after exeontion, I cannot think (supposing for the sake of argument the defen. dant's evidence as to exhibit 4 to be false) that the absenos of mention of exclusion in the advertisements under the special circumstanc of this case and false evidence as to exhibit 4 can debar the defendant from sucoseding in this
as
Of
summons.
one now,
His Lordship-What sort of special defence can you possibly conceive?
Mr. Goldring-I don't know what there is. His Lordship-He can contract.
say there is
|
no
Mr. Goldring-He admits the contract. Mr. Holboro-This action is for damages for breach of a contract which I say we have not broken.
After hearing the evidence of the plaintiff, his Lordship intimated that he would like to hear Mr. Holborow.
Mr. Holborow said he entirely on the contract under which the only based his defence right the vendor had was a lien on the goods. the price and to sne, and on getting judgment His only right was to retain the goods against be would be able to realise on the goods. This is not a case of loss, because the molasses were hard.-
His Lordship-I don't know. I see there is a good round sum for leakage.
Mr. Holborow-For which my clients had to goods, even if they had deteriorated. suffer. The plaintiff had no right to sell the His Lordship was of the opinion that the plaintiff must succeed in this case, as there was no undue pressure
or hurry. He gave the defendant quite a reasonable time considering the quality of the goods. Judgment would therefore be for plaintiff with costs.
Thursday, July 4th.
IN SUMMARY JURISDICTION.
Mr. Holmes-Fifty dollars.
regarding the sale of the house.
Plaintiff was called, and gave evidence
for $50?—Yes.
His Lordship-Yon mortgaged it to Lo Fuk
Very well, why do you say Ip Fuk owes you $50 P-I sold the house to Ip for £200, and received $150 on account, leaving a balance of $50.
Have you got any papers or anything ?- Nothing in writing.
After hearing the evidence his Lordship gave judgment and costs for Ip Fuk in each action.
DR. WYNDHAM'S CASE.
The case was concluded in which the Indo- China Steam Navigation Co. Ld., sued Dr. 81, 00 for breach of agreement. Lancelot Wyndham to recover the sum of
Mr. C. F. Dixon (of Messrs. Hastings and Hastings) appeared for the plaintiff, and Mr. O. D. Thomson for the defendant.
We
Mr. Dixon-The-d-fendant's evidence in this case was taken de bens esse on Saturday. I understand that my friend admits that have suffered damages to the extent of $1,000 but he wishes to ask Mr. Sutherland one or two questions as to whether he had any reports from captains reflecting on the sobriety of the defendant.
His Lordship-The sobriety?
Mr. Thomson-Yes, there seems to be an impression abroad that he has exceeded himself. His Lordship-So far as I am concerned I know nothing about it.
wishes to
Mr. Thomson-The defendant have Mr. Sutherland's evid-nce.
His Lordship-I may say at once I never took any impression on the intemperance portion.
Mr. Thomson-But there is an impression in the colony reflecting on the defendant's sobriety, and I want to clear his character.
His Lordship-I consent to that and further I want Mr. Sutherland to prove damages. (To Mr. Thomson). Do you admit $1,000 if there is a breach of the agreement?
necessary
Mr. Thomsou-Yes, if there is a breach. His Lordship-That is purely a legal point. kong Office of the Indo-China Steam Naviga. Robert Sutherland, manager of the Hong. tion Company, was called and stated that in consequence of the refusal of the defendant to proceed on the Hopsing, the Company suffered à loss. The defendant left at Singapore on the offer of a chirter for the Hops ng from February, 8th, just when the company had
Saigon to Singapore. It Was pore, and in consequence of the for the ship to carry a doctor to Singa ant failing to proceed they could not carry out the proposed charter, so had to carry out an- other from Hongkong to Hongay and back. The difference between the earnings in these two voyages was $3,000, and the plaintiffs had to get another doctor from England. Whea doctors were brought out they were usually provided with a first class passage costing about £60. In consequence of the defendant leaving the Company's service they sustained repetitions of the Hopsing incident.
defoud-
Mr. Thomson-Did you ever have complaints from captains of other steamers as to the de- fendant's behaviour, especially as to his sobriety?
Witness-As to his sobriety, no.
Mr. Thomson-I submit on the legal points that under this agreement the defendant was perfectly entitled to act as he did
The agree ment is a badly formed one, and I don't think
BEFORE MR. A. G. WISE (POISNE JUDGE). it was drawn up by the defendant. We may
A MORTGAGED PROPERTY.
Liu Wong, stonecutter, of Hunghom, sued price due for the sale of a house. There was a Ip Fuk, farmer, to recover $50 being the cross sotion in which defendant sought to recover $50, being money advanced to the plaintiff.
Mr. f. K. Holmes, who represented the defendant in the fist, and the plaintiff io the second action, said there was a am ill piece of ground at Mautsnobia kuow as lot 6, which belonged toh plaintiff, and which h、 sold to ip Fak for $20) when there was a mortgage on the property held by a min named Lo Fuk.
His Lordship-A pre-existing mortgage? Mr. Holmes- east
His Lordship-For how much ♬
take it that it was drawn up by the plaintiffs.
His Lordship-We know that.
That
Mr. Dixon-It is not wisely drawn up. Mr. Thomson-The agreement states that "should the defendant refuse to carry out his duties through intemperance
or wilful disobedience this
agreement sball come to an end".
clause states in definite terms that
the happening of o-rtain off nows the agreement is par at an oud. It gives to the defeudaat prastically the option of d, ermining the agreem at at any time by wilfully d.sʊbaying tue orders of The Geuer Maagers.
од
His Lordship—Y..., that is your cɔatuation. Mr Thomson-Y«s, fr that agreement is drawn up by the plain iffs, presumably with a knowledge of what that clause means.