1938-12-16 — Page 9

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ני

FRIDAY, DEcember 16, 1938. 日陞十月弍拾年捌拾百玖千歳英

JUDGMENT READ

IN

CINEMA

APPEAL

Judgment in writing was given ceived 'D letter from Messrs. "As to the first of these argu-glan & others 154 Law Times Re- by the Full Court on Dec. 14 in the Wilkinson & Grket on behalf of the ments. it is only necessary to ask ports p.499)-the fraud established appeal, which it had already dis- third party asserting that their what fact or state of affairs was against each defendant was that missed on. December 1, and in client was the owner of the copy misrepresented by the respondents he had allowed a prospectus to which Mr. Ng Pak-to, proprietor right, in the aim and informing to the appellant. The answer, as issue to of the Central Theatre, had him that proceedings had been I see it, is "none.". The respon-statements which though true up the public containing sought to have set aside the started against the respondents dents represented that they were to a point were falsified by facts decision of Sir Atholl MacGregor, I for infringement of copyright in a position to give the appellant which the prospectus did not dis- Chief Justice, in the latter's judg-which if successful "would be fol- certain rights in respect of the close. What fact was concealed ment against him in the claim for|lowed by similar proceedings film. The appellant cannot dis- from the appellant here which $17.500 which the Unique Film against the appellant claiming pute that they were in such a falsified the respondent's repre- Production Company had brought exemplary damages.

position. They represented maybe sentation that they had a good against him early this year.

"As a result of this threat, and that they were in a position to give title to the film when for all we Mr. Eldon Potter, K.C. Instruct- solely as a result thereof, the ap- the appellant "quiet enjoyment," know the adverse claim may have ed by the Hon. Mr. M.K. Lo, re- peant Teppoate the contract to borrow term from another been utterly frivolous and so re- presented the film company, and and declined to exhibit the film, branch of the law, of the film garded by the respondents? Mr. H.C. Macnamara, instructed by and when sued by the respondents Again, how CAD the appellant Mr. WA, Mackinlay. of Messrs. for damages for failure to exhibit gainsay, in the absence of any Mr.

"So far as the second part of Deacons, was for Ng Pak-to. It counterclaimed for the rescission of evidence of how and in what form concerned, I cannot agree with his

Macnamara's argument was on Mr. Macnamara's request at the contract sued upon and for the adverse claim had been made submission that in the particular the conclusion of the hearing of the return of his $3,000 bargain and what opinion they had formed circumstances of this case there. the appeal on December 1 that money.

of it that the respondents were in was, quite apart from any question

the written Judgment was deliver- ed yesterday.

of

is

actual misrepresentation, 3 duty in the respondents to disclose to the appellant the fact of the adverse claim.

"He based his counterclaim on such a position? the submission that non-disclosure The Acting Chief Justice, Mr. by the respondents of the adverse Justice R.E Lindsell. and the claim entitled him to rescission. Acting Pulsne Judge, Mr. Justice E.H. Williams, sat as the Appeal Court.

The "judgment, which was read by the Acting Chief Justice, is us

"QUIET ENJOYMENT"

The Court below held that he was enjoyment" could be read into the "If any convenant for "quiet not so entitled and from that de-contract. breach cision he appealed.

well have given the appellant a "Here again, the appellant is

follows.

thereof might

APPELLANT'S DIFFICULTY

"I cannot help feeling" in the right to sue for damages but no faced by what seems to me the in- words of Greer LJ. in Davies v. right to repudiate the contract, superable difficulty that the claim Elmslie (1937 Weekly Notes 404 at but to argue that the respondents may have been utterly frivolous "This appeal, which we have al- p.405) that "this case is an illus-represented themselves as in a and unsupportable, and if the res- ready dismissed, was one from the tration of the futility of ordering position to give quiet enjoyment is pondents regarded it (as for all judgment of Sir Atholl MacGregor an issue to be decided in advance but to say in other words that we know they may have done) -In C.J. by which he decided in favour of the ascertainment of the facts they represented themselves as in that light, I cannot see how in law of the plaintiffs (now the respon- which might be relevant to the position to give the appellant or in common sense they could dents) a preliminary point of law consideration of the question, of certain unassailable rights over have been required or expected to arising out of the pleadings in law."

the film, because they themselves tell the appellant all about it. this action and ordered to be

"It may be of course that the is brought back again to the same three of the leading cases bearing had a good title, and the appellant "This aspect of the matter and argued and determined before

appellant was unable to obtain impasse that he cannot challenge upon. it have been so fully dealt trial

such proof that the third party's that title. "That point was, and is. this claim was a valid or even an

with in the judgment appealed whether or no, taking all the clr-arguable one and that the respon-

"In support of this part of his from, with every word of which cumstances of the case into con- dents took it seriously as would argument Mr. Macnamara has judgment I am in agreement, that sideration, the appellant is entitled have enabled him to put forward cited several cases which he did can see no useful purpose in at- in law to rescission of his contract a successful.defence on the merits, not cite in the Court below, but in tempting to elaborate it. with the respondents on the but one would have thought that my view not one of them affords ground that at the time of the some evidence of the validity of him any assistance.

CASE OF BELL v. LEVERS contract the respondents were the" third party's claim, if it way

"Furthermore "In With v. O'Flanagan (1936 cases to which Mr. Potter drew the additional aware of the fact, which they did a valid one, and of the respon-Chancery p.576) the plaintiff had our attention are not disclose to the appellant, of dents' attitude towards it must entered into a an adverse claim to copyright in have been available to the appel-defendant

contract with the entirely in his favour, and in par- to my mind the film which was the subject lant and might well. have been practice. At the beginning of the other v. Lever Brothers. Ltd. (1932 to buy the latter's ticular the case of Bell and an- matter of the contract.

"The facts were in brief as follows: The respondents are a

decisive of this action.

QUESTION OF LAW

negotiations it had been represent-Appeal Cases p.161). There the ed to the plaintiff that the practice appellants had been employed by brought in £2,000 a year, which in the respondent company to manage firm of cinema film producers and "Since, however, the question of fact it did, but when the contract one of its sudsidiary companies on the appellant is the owner of a

law which the Court below decid- was concluded six months later the the cinema theatre in the Colony. Oned and which is the subject of this defendant's finess and consequent through amalgamation they had disappearance of which January 10th, 1938, the appellant appeal amounts merely to this employment of "locum tenentes" been paid large sums as compensa- agreed with the respondents on whether or no the appellant is had reduced the income from the tion for the loss of their employ- certain terms to exhibit at his entitled to relief merely because practice almost to nothing. theatre, for

ment; in the management of the seven days from the respondents, whose title to the

"This fact was not disclosed to subsidiary company they had been February 4th a film called "Tuk film he cannot dispute, did not, Mul Kwal" (The Poisoned Rose), disclose to him, when the contract the plaintiff before he signed the guilty of certain breaches of duty contract, and on discovering it he of which the respondent company and on January 14th this contract was concluded, that an adverse sued for rescission, He was held did not, became aware until after was reduced to writing and the claim to the title bad been aim was duly delivered to the ap-brought to their notice, we cannot that he had been induced to enter and which would have justined the entitled to succeed on the ground the compensation had been bald pellant who paid $3,000 to the consider any other facts or pos into the contract by representa company in dismissing them from respondents as bargain money. sibilities beyond those disclosed by

time

At some time between January or to be inferred from the plead-on which though true at the their offices without compensation, It was made had sub- On discovering the malpractices sequently, to the knowledge of the the company sued for rescission of I understand aright the|

10th and the execution of the contract in writing on January

ings.

**If

14th the respondents became argument of appellant's counsel, it defendant, become untrue and yet the agreements and return of the aware that the copyright in the falls under two heads. He con- had been allowed to continue to sums paid in compensation. said film was claimed by a third tends, firstly that the respondents' operate on the plaintiffs mind.

"The jury found that in their party. How and in what form the failure to disclose their knowledge "How far is that case from this. negotiations with the respondent clum came to the notice of the of the adverse claim amounted to Here certainly the appellant was company for compensation the ap respondents and what opinion they such misrepresentation as to en-induced to enter into a contract pellants had not been fraudulent, had or formed on its merits are title the appellant to repudiate: With the respondents by the re-Lé. had not in mind their OWN not in evidence. At any rate, they and secondly, even if there was no presentation that they had a good malpractices, did not disclose it to the appel-actual representation, yet in all title to the rim, but there is no

"The trial judge found in favour the circumstances of this case evidence whatever that that repre-of the company that the com- there was a duty in the respondents sentation ever was false, ever be- pensation agreements were vald as to disclose the existence of the came false or is false to-day. "On the 28th or 29th January adverse claim and that breach of

having been made under a mutual. "So again in the prospectus mistake as to the legal relation the appellant for the first time that duty entitled the appellant to cases (Rex v. Kylsant 140 Law between the parties and the Court learnt of this claim when he re-repudiate.

Times Reports p21; Rex v. Bishir-

lant.

· LETTER· RECEIVED

(Continued on Back Page)