THE HO GKONG TELEGRAPH, SATURDAY, FEBRUA «Ÿ 21, 1914.
SHEWAN TOMES & OÒ.
Continuent from second Extra,
his in his mind that goodwill is
$
a
3rd EXTRA,
The said the not value shall be it is the right read to the world The Poisne Judgs:' It all depends highest bidder. And it is perfectly the result shown on taking this ac-where you are carrying on the upon the terms of the contract. It clear that a sale with the goodwill count. I Iny stress on the word same business." That is the legal appears to be a rather large order will realise more than a sale without
meaning the popular meaning "ascelain". You have to take an of course is that the goodwill to bind people to attach them. the goodwill Mr Potter has quieted account to ascertain it. You do not is what it consists of and he has selves to successors they do not entirely in our favour (Lindley an, argument from Lindley, which is put it in twice. That I submit is not the right to succeed, but the desire.
part of the business and the proper ty. He has got to mention it for the meaning of this part of the right of sharing or halving what Mr. Alabaster: They have quoted). The benefit of the whole These General Man- concern is that it shall be sok ht the other reasons I have given, and argument which I feel presents di-it consists of. Now they have done so.
л case to-day he very carefully inserts the word fficulties to your Lordships.
It is cited
which gerships go with them. It is a price which will realis, most, and I submit has been totally not a question of a popular man the Court has ample power to see.. "thereof".
a means of ascertaining it. It does misunderstood, that. is the getting
batter. on
than a that it will ronlise most. This is Now, in thres cases ho uses the not my it shall be that, and it has cas of Burchall and Wilde, unpopular man. The General not a Court of pity: it is a Court word "property" and also the word to be paid by instalmouts because It is not under any of the Managerships bring. in · 80 "effects" without either of these the first part makes no provision digests under the heading of good much money for work done, of equity. There can be so pleas will, for the reason that I shall largely by subordinate people in of ad misero cordium owing to the words of limitation. The three for its being sold at all.
The next point my learned friend show. Because in the goodwill the firm, and it does not matter peculiar position of Mr. Shewan cases are the cases I have given
mentioned there, there is no legal very much who does it. It can be owing to the fact that he has drawn Mr. Sharp dealt with was the que goodwill and there is no division done equally efficiently by all more than Mr. Tomes from the Imsi- tion of ambiguity and extrinsic evi- of the partners which is found in first-class, firm. They cannot hess. dence. I mean the possible calling the digest elsewhere-the right to evou divide that. They can divide of extrinsic evidenes to explain the uso a trade name not under at the shares, subject to the approval meaning of these documents if your other goodwill. Although at sec of the Bank, but they could consider is whether the ceir tion four, goodwill in Burchall and not divide the General Manager cumstances ousting Mr. Showan Lordships consider it ambiguous. Wilde it was agreed that the good ships.
from the possibility of being a com can deal with that by saying that will in the legal sense of the word
Mr. Sharp: We do not admit potitor for the firm do not in conse it is quite impossible that such evi- should not be se, but what it this. We say they can be divided. quenes damage the partnership, he dence' shall he called at all, but if
consisted of, this which is the
gause it confines bidding to one. your lordships do not wish to hear me on that, I need not go further
Vint. I refer to 10, 12 and 15. Now, in every one of those instances he has buitted the words of limitation; he has not put in any word to in- dichte any sign-mark of limitation. He has taken the clause bodily from the books and the forms, mud Llac words contain their ordinary shaning, and, he has given them o words of limitation to change them, Does claus 12 The President : come but, of Prideaux.
Mr. Alabaster: They put their option rlanse last of all. They don't meat the word "property" at all, Lut under clause to his uses the
Do your Lordships want to hear me? The President: I do not want to stop you just now.
Mr. Alabaster: ' Well, on the ques- |
tion ambiguity, I submit that ex trinsic evidence is admissible to ex-
Mr. Alabaster Of course, that is
reply. There would be no suc-
The President: The gestion for
Your Lordship
popular constituent part, to to your argument, and this is my Mr. Alabaster: divided and there was an agreement, cessors in a piecemeal, sale that can get rid of that by fixing an silent, as to the use of the name, is the whole difference between upset price which Mr. Tomes could and the Court merely held as the selling a going concern and a not bid uniter. "" name was floating about anybody piece-meal sale. These general The President: I think wo had did not represent he was soleby grab for these managerships. If thing more was entitled to have it so long av managerships would be lest and better adjourn now.
everybody in Hongkong would Mr. Alabaster: I really hava me
to add, my Lord.
general form of Prideaux exactly plan ambiguity, but "it is inad. I elso-page 553 in the Summary of the goodwill were sold the purde, not. think there is any point-
He has
and firets," "property sesed it without thenwords of limita- ·
chaser takes the benefit of the
Je intends the goodwill to be in has two fanus named Blackacre,disputes and the arbitrater (9 quot that on a piecemeal sale each can
to
missible to explain patent ambiguity.
eases, last paragraph (quoted If a farmer' says I'give him to so Then Mr. Justice Burns (quote right of connection and the prin- innde which I have not dealt with. tion which he has put in in the and so; that is a patent ambiguity. There was someone else of the ne ciples laid down in Trego and or any case cited.
Hunt apply, that the vendor can- The President: We shali havo to earlier glauses. And therefore, and you are not allowed to give of Burchall entitled to use it not scramble for these things, bier this, lit na the matter in clause 15 stond alone, apart from evidence,to explain it, but if he says
(Lard Lindley quoted-court. He is certainly entitled to, do a very tiressing one, I hope we mave 10 and 12, it is purivelly clear that I gave him farm Blackner and he Appeal). And there were weveal the same class of business that be able to, at all events, indicate he wants to,, Their contention is what way our decision is before I ollers according to page .562- cluded in the property and effects in you can call him to give evidencë
Teava ingkong,, so that the part. 13. Now we come to 10,, which is which he meant.
Then they go on to say that to call himself the successors The ambiguity, Is.
Shewan Tomies.
les may be in a position to wak also taken from Prideus. Ten ari not in tha: document; it is in the and Company and the other auth' fact be successors.
should call himmeli Burela!! Wilbe
The President: They would in any application to the Court which. 12 hotli come from Prideans. All working out of it afterwards came. She from these people, Mr. Alabaster:-They could day that we should sit.
they may wish. It would be bi Mon- the other sich have been able to say "cording to these principles of Chitty being able to represent themshes hot both enforce these contracts. Mr. Sharp: We shall be ready
Actually these connections as successors-that is "inte," they with these companies would be if your Lordships require us. cannot do it-if they could they thrown into the sea. could do so, that is because of care whether they are valued at you. I think we shall either sit at I do not The President: We will notify breach of agreement. The whole of $100,000 or $50,000. Thus a very half past nine on Monday or during the legal goodwill which must be enormous sum of money is the adjournment. soll, is the right of sucerssiin. thrown into the soa. There Mr. Sharp In Court, my in Where you have a pice meal sale on morning on the question of the
was
dissolution the right to sneerscha is upset price, introduced by them The President: Oh, in Court.
is that in subse years we have in- cluded goodwill in the accounts and in some we have not. Now in this particular form it is really impos- sible bake the true position of the Jeromnts without taking the good
will, franse the goodwill is, as. I Before sind, their "sapoflife." It is a sul stantial asset capable of a definit Valuation, and
some argement this
Chambers t
1163 L Patinets. This may be illustrated as follows (Chitty quoted). Now here the ambiguty if there is an anbighty is in the con struction of the comment and there are no lasts extrinsic of the detent, sendi say attempt to call the draughts man to usurp time inte in this Court interpreted as the drut, is
gone although you may grab' with in this Court. I said nothing There are the Criminal Bessions isolately admissable. The as the rest of the world, or disite about the upset price in this probably it will be some time during
point referred to was with regantenually, the dividable proportions--
Court, and as your Lordship tlevadjournment. The President: i prop set stop the goodwill must be sold. I go rather late in the Court below.
remarked, it was mentioned The Court then rose. at half jaŝt fönf.
back to clause 15-in case of death. I don't know whether your Lord On their construction, if the con ships want me to deal with this tinuing partner is in a much better question, because it was not in
fus and away begant much of the goodwill usually, purseated in there cases. And it is perfectly easy to put in we balance-sheet. They have put it in because it has a figure, and it has had a figure right away from the start of the business. And 10 and 15 both come from Prideaux if possiblu, Therefore 1. submit that Prideaux
Me. Altbusters I will by get finished before half past four.
The President : 1 you like wo will sit to-morrow, int we will finish now
Mr.. Alabaster; 1 will go used in that sense in the corres-way in half an hour. ponding clanse, They are nged in.)
The President: 'I don't want general terms here, and the only new thing is 12 (Clause read).
irry you at alt
some
k
I
reply to me. It was not in reply
HANKOW PAPER, MILL.
position than widows and clergymen and all sorts of people are he cat
to anything I said. The position The work of filling the Hankey cannot be put botter thum say I won't boy from you at any it is put by the
Government Paper Mill at Seven solicitors price because if this firm must who instruct me in their lottor Miles Creek is proceeding rapidly, on and without me you must after which your Lordships will find articles and everything. I will give on page 189 of the file, dated, 6th The Peking government has voted of January. This says that on nothing for it, you can sell the the sale of the business as a going a large sum for repairing the dani- shares at a loss at once, theref I concern, as asked for, the pur-
will take it over. He is enabled chaser will not only undertake to age done during the revolution thereby to stent from theur the right indemnify the vendor from liabili- and completing the equipment of they have of continuing in the tsi. ties but also obtain his release.
the works. hoss-and they have no right t».
and discharge therefrom,
The Puisne Judge:-That is stoal that goodwill. It is stated
either partner? Rolls in the case I have referred to, very clearly by the Master of the
Dunesy and Cooper, (quoted),
submit on their construction
Mr. Alabaster:-Whoever
was.
it
A good deal of outside work--
bünding and roading for instance has been done of late; and it
compares well in solidity with the
"The meaning of that clause," Mr. Alabaster: 15, there is sabout, is this:--that you pay what. aqbiguity that is why it is ever your pay by pistalinents. So fore the Court for construction and much of what you pay for as-con- that is why it is with the Court to sists in goodwill shall be taken at deal with it. My learned friend the price mutually agreed-say referred to some case 'with regard' 325,000 in this ense. For the other to the company, on the point that part of the property and effects, yoù, the Court had no power to sell this are to take it at an unknown but business as a going coneera.
The Chief Justice:-They could not speak for anybody else." ascertaiimble price. You ascer- thought it was common ground as} These General Managerships will Mr. Alabaster:-It would be, tain this price by taking an account stated in the judgment under gon-be of value to any firm hore, but a condition of the sale. The of everything, but you don't pay oral law, apart from the agreement, probably of more value to them. I whole idea of a sale as a go buildings of what will probably be the result of that account. You you could soll as a going concern,
that ing concern is that the purchaser the most magnificent--and most ex- have to find out the net value from but this case cited was in the end two lakhs or one lakh is to be thrown takes everything and the vendor
gets rid of everything. And the pensive paper mill in the world. that account. You take your gen of a company--I haven't even taken into the sen at the whim of a part-(only way to wind up this busi eral account, and from that general the name of it because I saw theer who says "I won't sell or I mess at all is by a sale as a going It is said that yet another.million account, if properly taken, you as answer at once-there is no power, won't buy",..
firm, whose assets consist of two tacls will be required before the certain what is the net value of the for it to be liquidated in the usual'
The Chief Justice: You say the
things-shares and goodwill: mill is able to work to its full capa property *other than goodwill." way. (Palmer quoted), italess power goodwill has a inngible value out. In a piecemeal sale the good- I haye just a few figures høre to is conferred upon it to du side?
will is thrown away and the city, show how it works out, Working so (Palmers Precedents quoted), Mr. Alabaster: Unquestionably shares are flung on the market and
The eight American experts that out clause 12 you wentkl take a gen-is olivious that must be has. It is the main thing.
they must depreciate in a limited market, for your Lordships will were engaged for the mill before eral account, and the necessary itens so. A company is a creature of would take the property and the take into consideration the size will work out like this The value statute; it has no rights outside shares of these companies and world of Hongkong. These huge blocks the revolution will come to set it- * of the goodwill as agreed, sain,onu; | statuto or outside of those rights, bo in exactly the mama position mull of shares, worth lakhs, would
and those rights are derived have the same hold over these dont be thrown on the market and running. The superintendent is oither from the statute or underpanies as Shower, Tonics have. the statute. If the stature gives
the value of stock in trade, etc, and
debts due to the Arm, $100,000, furniture, etc., and shares $150,000; Jess liabilities, $100,000; à balance of $400,000. Half that, "$200,000.
They
The Paisno Judge: Partly by
it away of winding up it must adopt that way none other than the pro-holding i vision of the statute. It says in the memoranda "I can govern my own
.concern. That is a sale of the
would cause a depreciation. Bút
1
a buyer taking over all the already on his way to superintend shares would not result in any de the setting up of the machinerý, ; preciation in value, because they
'would remain exactly as they were, and the rest will follow, arriving
unde showing them to stand in
The President: How do you as- castle." I can state I am going to holding and partly by reason of con, except that a book entry would be in about five months' time, when
certain that?
Mr. Alabaster: These are fancy then under the present Companies £guros.
The President:" Don't you tho goodwill in twice1
get
Mr. Alabaster: No, because you have to ascertain it in that way.
The President! taken it out 'again.
Mr. Alabaster: Partly by reason of.
govern my own castle but even tract.
somebody else's name. There is no the mill is expected to be ready to Ordinance the company can bei Puisno Judge: You might buy the practical trouble at all, and if there begin manufacturing operations, sold as a going concorn; the liqui- good will of Shewan, Tomes and the are practical difficulties they can be dator can sell it. It is quitoiffer-companies might tell you that they disposed of-ovidence and argu- The funds for the mill are com- is nothing in the general law ent under their partnership; there did not want you as General Mann ments can be heard as to the con- ing from the Five Powers' re- ditions. But I submit that this organisation loan. During Novem- ber the outlay on the mill was one Mr. Alabaster They would have question does not turn on what con- there is nothing in the genora to perform their agreements.
fitions the Court will impose. The of the largest expenses met from
which prevents the parties fromers.
But you have
selling to the best advantage. and
י,
Mr. Alabaster: You go to your from assisting them to do so. The tract for a long time?
law which will prevent the Court The Puisne Judge: It is a con- Court will impose conditions to the the loan funds. The only others General Account and ascertain it in
case which he cited to-day was that way. You certainly do not pay twice because it is already paid, but you ascertain what you have to pay by going to that account.
best advantage of the firm; it must that were larger were the expenses a case of principle which he tried
Mr. Alabaster: Now we are ot say that the partner who has of disbandment of old troops and to draw into it, and was, I
going outside of things. They aten his cake and cannot afford to of erecting the imperial tombs. thought, destroyed entirely by my would have to perform their agree way as much as the other shall be (By the way can the building of argument from my point of view,ments, they cannot got out of their nabled to buy it if the other wants tombs be described as "reorganisa- tions') The Peking papers give The President: "The said not ac of the case of Trego and Hunt agrements and we know from the the benefit of the firm as a whole amounts spent on the paper mill as to the moaning of the effect contracts without breaking their it too. The Court will have regard to the following statement of the count is an account of the property Trego and Hunt is the leading balance sheet, that these firms have and it is to the benefit of the firm during November:- other than goodwill." You will find case and it will be followed, as enormous holdings in shares and the ts a whole that the goodwill of the Hankow paper mill no property being talked about as explained, by Hill and Fearis, practical difficulties of getting rid of firm is sold and realises the highest Machinery for the mill
and they say what goodwill
$174,071 means (Quoted). That is the the General Managorshipa would be price. It is the right that every Hankow paper mill
$9,840 agree. meaning I think of goodwill and enormous.
partner has that it shall go to the Hankow paper mill (Dec.) $19,177
property other than goodwill,
Mr. Alabaster:
I
$40,540