THE HONGKONG
TUESDAY, TELEGRAPH.
FEBRUARY 22,
1938.
Plaintiff Awarded $17,500 Damages On Breach Of Contract GERMANY'S
(Continued from Paye 1) ed it was the duty of plaintiffs disclose the claim.
to Plaintiffs denied knowledge of the adverse claim by Lee, but submitted that even if they had knowledge, it was not their duty to disclose it.
His Lordship, in his judgment, held that there was no misrepresent ation by the plaintiff company which to rescind would entitle defendant the contract. He said;
JUDGMENT HANDED
Бе-
one
with
of
TO
thul
POLICY DEFENDED
Recognition Of Manchukuo Not Act
Against China
Hankow, Feb. 22. The German Embassy issued A statement to-day as a conse Reichstag statements on Far quence of Herr Adolf Hitler's East policy.
"Herr Hitler's speech reveals elcarly that Germany's recognition of Manchukuo cannot be interpreted us an act directed against China. The reasons for it are:
that that duty existed. Now un- tiff company is one-enillled to imply the result of the telegram; therefore, doubtedly that duty docs in many from the fact that they entered into Mr. Butcher who argued his case if this contract with the defendant? with skill and ingenuity, was driven coaca exist. In the first place, there be a pre-existing relationship That they had a title to the picture to say that it was a shabby, trick on between the parties, such as that of and its performing rights, and that Fowler's part not to disclose the agent and principal, solicitor and the
and could deliver it to the defendant. such conduct was not consistent client, guardian and ward, trustee and y were in possession of the Alm information he had received, and that cestul que trust, then, If the parties There is no evidence whatsoever that the usual practice of solicitora
only any one of those representations was high standing in their dealings with con contract at all, they can
The
ordinarily who woul another contract after the most ample dis- not entirely true. In the ligiit of
uny such circum- closure of everything by the agent, reasoning in the case of Turner V. have disclosed by the solicitor, by the guardian, or Green (1805) 2 ch. D. 205 I am stance: therefor
therefore, he argued by the trustee. The pre-existing unable to hold that the fact that the specifte performance ought to be relationship Involves the duty of defendant if he had known of the refused, because the course adopted entire disclosure. In the next place adverso claim would not have been in this case would be generally con- The plaintiff company and the there are certain contracts which in party to the contract is per sedemned by high-minded men. I
have been called contracts uberrima defendant by an agreement dated
case shortly before an interview
any
such ground. Had there been January 14, 1935, contracted that the fide where, from their nature, the any ground for rescinding it. In that find myself unable to act judicially on
court requires disclosure from one
tween the
solicitor, the Plaintiffs
any over-reaching by Fowler, or any. defendant should exhibit for seven of the contracting parties.
defendant, and his solicitors, to ar- misleading conversation with refer- was days a talking picture which
MANY INSTANCES
range for the
comproms"
of an ence to the proceedings in London receiv- duly delivered to them by the plain-
before the chief clerk, at the time Of that description there are well action, the plaintiffs' tiff company.
At the time of the making of the known instances to be found. One cd a telegram Informing him of the the terms of the compromise were not is a contract of partnership, which result of certain proceedings in the settled, a very different case might
"Firstly, Germany's wish to dis- agreement the defendant whe
and In such a case on associate herself from the League of aware that an adverse claim to the requires that one of the partners action. favourable to the defendant, have been presented on behalf of the
disclose to the other all but did not disclose his information defendant copyright and performing rights in should
10 the picture had been made to the material facts. So in the case of before the terms of compromise were obligation might have arisen binding Nation's policy:
"Secondly, Germany's desire who agreed: The defendant claimed that Fowler at law or inequity, to make s plaintiff company by a third party marine insurance, the
base her policy on facts and realliles which she believes will serve best For the purpose of the present argu- proposes to insure a ship or goods the agreement was no longer binding disclosure of all he knew; but I am subject took
all-round: ment it has been assumed that the must make an entire disclosure of on the ground that a material fact satisfied on the evidence
had been suppressed. It was held conversation on the plaintiff company was at all materials
eral everything material to it, the duty that there was no obligation on the place. times cognisant of that claim.
Again, in ordinary contracts
GOES BACK TÓ CICERO plaintiff company did not Come may arise from circumstances which plaintiffs' solicitor to disclose all he
The distinction between suppres- municate this assumed fact to the occur during the negotiations. Thus, knew, and the defendant was bound defendant, but before the time fixed for instance, if one of the negotiating by the terms of settlement. for the first performance the solicitors for the third party wrote to the defen- parties has made a statement which Mr. Justice Chitty, in delivering sions of a fact and mere silence is a is false in fact, but which he believes judgment said: My opinion on the very old one, and is to be found in dant threatening legal proceedings to be true and which is material to facts is that the defendant's country a passage from Cicero (De off. lib. against him if he exhibited the ple ture. The defendant for that reason the contract, and during the course solicitar, did not know that the sum-il, c. 13) which is cited by Sir of the negotiations he discovers the mons for account had been heard Edward Fray In his book (3rd ed. and for no other, in breach of his tally of that statement, he is under that day before the chlof clerk, and par. 320): "Allud cat celare, allud 1 Communist understanding". contract with the plaintiff company, Elization to correct his erroneous judgment will proceed on that lacere; neque enim là cat celere The obligation failed to exhibit the picture. The an obli defendant by his counter-cinim asks statement; although if he had sold footing a footing favourable to the gufequid reticees."
likely contract, nothing he very might have defendant. Then I come to the real to spenk is at the root of this pro- for the recission of the
been entitled Lo hold his tongue question in the case, which is, ought position. company her
statement the Court to decline to enforce this alleging that the plaintiff com Wie adverse claim pleading that had has been made which is true at the agreement because Fowler, being was under a duty to apprise him of throughout. So, again, if he been aware of it he would not time, but which during the court aware of the circumstances that the have been a party to the contract on of negotiations becomes untrue then chlet clerk had expressed his opin
the person who knows that, it has ion-which however did not amount which the plaintiff company sues. It is for the defendant who says that become untrue is under an obligation to a decision-did not disclose that there was such a duty to disclose to to disclose to the other the change circumstance to: the defendant and satisfy me that such a duly existed of circumstances. In low.
person
that no
...
"Thirdly, Germany's determination to continue neutral in the Far East and maintain her friendship, with China;
the absence of political,
or
• designs in East Asia,
but only economic interests;
"Futhly, the Gorman-Japanese res lations, based on their mutual anti- Meanwhile, reports from Chung- king state that the press in China Hier's universally condemns Herr speech, and offcials privately stress Herr Hitler that the argument does not represent the German nation. United Press.
DIPLOMATS EXCHANGE
EVIEWS IN TOKYO
Tokyo, Feb. 22.
There is no suggestion here this soljeltors when the terms of this which I think I is necessary to say called on Mr. Kensuke Horinouchi,
the
that
L
It la.
the judgment of Mr. Justice. Fry (and able to give us performing rights. settled orilles. I will take the am at alt to speak? In policles of
Mr. W. N. Obel, Charge d'Affaires of the German Embassy, to-day vice-Minister for. Foreign Affairs and exchanged views concerning current international affairs, particularly the recognition of Impending German
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The words of Lord Blackburn in his judgment in the case of Brownlle v. Campbell (6 A.C. 933 at 953) seem to be so apt to my present purpose. as to be well nigh conclusive:
There is only one other point on
anything, and that is, it was sald, * compromise were being rettled?
"At all events there is an improper contract between the parties in
iment here. JUDICIAL DISCRETION
Now, as I sald WHERE LAY DUTY?
an ordinary contract, und other than
Macnamara on behalf of the
I should say, whenever there The point for decision is therefore defendant to justify his client's claim The question a short one; on such admitted or as to reelssion of the contract, must of fraud, be thus raised is not, one duty to speak, when you have Manchukuo.-Reuter.
one as to doctrine of not anything to
to say and you keep it sumed facts was the plaintiff com- pany under a duty to inform the de- satisfy me that there has been a the Court in granting relief against back in order that the other side fendant of the claim to copyright and misrepresentation by silence. His a claim for specifle performance believing that you having said performing rights made by the third case for the purpose of this argument where the Court has a discretion; nothing,, have nothing to say,
that is, of course,
a judicial die very much the same as falsehood and must "the plaintiff company by but party? The law applicable to such contracting with my client held itself creflon, which cannot be exercised fraud. But, my Lords, what is there circumstances. is fully summarised as out as having a title to the picture arbitrarily, but only according to here that would cost any duty upon
laid down for it him He was then) in the case of Davies v. are as they were of an by the
Insurance, whether marine Insurance London and Provincial Marineiverse claim by a third party they proposition
laid down by Sir Edward or life insurance, there is an under Insurance Co, (8. Ch. D. 409 at 474). book (3rd ed. p. 325. par. standing that the contract is uberrima
The law upon that point seems to
125. By contracting with us they had 700) as a good exposition of the law; fides, that if you know any circum- me to stand very much position. Where parties are contract-made certain representations to us there he says: "Mere silence as re-stance at all that may Ing with one another, cachs may, un- and they were under a duty to com- gards a material fact which the one underwriter's opinion as to the less there be a duty to
disclose, miunicate to us a fact so material na party is not under an obligation to he is incurring, and consequently as
Miss A. Wright of the Texas Oil observe silence even in regard to the adverse claim advanced. Their disclose to the other cannot be to whether he will take it, or what
defence premium he will charge it he does Company, was present at the Central facia which he believes would be failure to disclose entities us to the ground for rescission or a
to specific performance."
lake It, you will
what you Magistracy to-day as complainant in. operative upon the mind of the other, reelssion of this contract."
REASONABLE IMPLICATION It cannot be contended that Fowler know. There is an obligation there and it rests upon those who say that there was a duty to disclose, to show What representations by the plain-was under any obligation to disclose to disclose what you know; and the unemployed, charged with larceny
concealment of a material circum-
of her handbag from a counter in 1'B1' 6 78RICAN
ry, Gloucester stance known to you, whether you the Colordal Dispensary, thought it material or not, avoids the Arcade, yesterday afternoon, polley. But in other contracts it is Before Mr. R. Edwards, Inspector not so, and as my noble and learn-Fender suid that Miss Wright lald ed friend opposite (Lord Mathericy) her. handbag, containing $20 in has observed with great force it would be a monstrous thing if every solicitor, for selling an estate, were obliged to keep a schedule of all the Idle claims that had been made although some of them may perhaps allmately turn out not to be idle- keep a schedule of all the claims of all sorts that have ever been made
in
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the case against Wong Che-leung, 28, Whiteaway, Laidlaw & Co., Ltd.
other articles, on a money, and counter near the door of the disper- sary and turned around for a moment. Defendant was standing near the counter, and when Miss
ha Wright, turned away,
the snatched bag and ran out of the drug store.
In evidence, Miss Wright cor- reborated the statement by Inspector Fender; and added she had chased th the defendant for a short distance, When defendant was
was caught, a young Chinese In European attire went up to her and handed her the bag,
within his knowledge. against his ellent, and shew them to intending purchasers. I never heard of such a doctrine, and think if we pro- posed to bind people to do that we should do a great deal of mischief. stating that defendant was not the There is no case-in support.
port. of that. man
man who had stolen her bag.
Offee, testified that he was walldog. along Pedder Street, near Jardine,. Matheson and Co., Ltd., when he heard the shout of a woman, "Stop Him." Defendant fell and a handbag Witness dropped from his person. also joined in the chase.
I never heard of one ever being Mr. J. G. Wyatt of the Harbour elled, and it seems to me to be against principle that there should be one.
The conclusion to which I have came is that on the facts before me the statement of defence filed on be- half of the defendant discloses no offence in law, nor is there on these facts any misrepresentation by the plaintiff company established which would-entitle the defendant to the | rescission of the contract.
“EDEN MUST STAY; * CHAMBERLAIN MUST GO"
(Continued from Page 1.) Journment to-night, the Conserva- ives met privately and unanimously passed ja võla of confidence in Mr. Chamberlain, who ended the night debate sharply denying that he sought peace at any pried with dictatore
It is officially announced that Mr Neville Chamberlain has asked Lord Halifax to take charge of the Foreign Omice. Mr. Chamberlain revealed that Mussolini virtually awaited Mr. Eden'a resignation, and then agreed to the terms on which Mr. Eden had himself insisted. The move Is ros garded as being aimed to hip in the bud a pro-Edon campaign,"
Law Man-cho,' reporter, in tesli- mony
said that he was at the scene, and saw defendant leaving the dis- pensary
holding a handbag under the cover of an overcoat.
Defendant in the dock said in an excited manner, that the last witness had accused him of being & bad character from Shanghai, and he had in return shouted that he was n traltor,
He then elected to give evidence, and stated he was a refugee from Canton. He went to the dispensary to make a purchase:
His Worship found defendant guilly, and Inspector Fender asked Mr. Edwards to view the case seriously, as blg establishments in the Central district were daily being vialled by such men. Taking into consideration what Miss Wright sold. that another Chinese had come up to her and said that defendant was not the miscreant, it seemed this was an operation by a gang,
A remand for 48 hours for medical examination was ordered.
25,000 THREATENED "BY U.S. FLOODS
}
Mr. Eden's speech in the House of
·Commons, bitterly. lothing Italy, was · one of the most sensational for years,
Rock, Ark., Feb, 21.
White The low floods of the RECOGNISED AGGRESSION A Arkansas and Redlivars have People Mr. Clement Attler, Labour leader scattered more than 25,000 in the House of Commons, furiously among the refugee camps in south- attacked the Government for its "de" western Arkansas and south-easterd finite recognition of aggression, Oklahoma, and numbers of lives are
endangered from -he said "would have the
pneumonia. which,
rellef units have Europe. Everywhero fusions to bo hailed rished from Wanindon to render selatnice. Oklahonia National as a great victory for Mussolini
Guardsmen directed aeroplanes They will say this is an abject motorboats and ambillançar in the surrender of the greatest power in reścuo work.
the world to the weakest of the die |--The forecast is snow and rain for lator. The United Sintes will say?nouth-eastern Oklahonia, United Hero's Johnny Bull playing politics Preas
Mr. attleo said, that Signor Musso BRUMALINOX AT HAIFEONG:
{lini's positifen van melualavery:
$1 TIFFINS
at
Jimmy's
Also A
China Bldg., Hongkong.
la Carte
Hankow Rd., Kowloon,
COPIES OF
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by "Staff Photographer" appearing in the
“SOUTH CHINA MORNING POST"
and
"THE HONGKONG TELEGRAPH” may be purchased
at the Business Office “The Hongkong Talograph"
Morning Post Building, Wyndham Street.
Into her hands they place the sceptre with the orges and sceptro with the dove, then
upon
hier
maldea brow they prem: the gem encrusted crown
tlignanolat har- and a nation in hom-
"God Save the Queen,"
VICTORIA THE GREAT
MÁY, FUVAR teati travesvat emon EAT