1914-02-20 — Page 10

THE HONGKONG TELEGRAPH, FRIDAY, FEBRUARY

20, 1914.

J

olearing it?".

The Fresident:-It seems to Therefore it is perfectly clear our contention is this is not am- have to call Mr. Victor Deacon that, my Lords, we would regret ambiguity. thing is sold by auction for the little, to anyone but the partner

and the draughtsman does not me to to putting a pistol into that at the period to which your biguous, but we are quite pre-who drafted this to say what it. We confidently submit, my We put it that there is no ambis benefit of both.

Mr. Sharp: Or if it occurs by contemplate Although it would the partnership agreement which Iordabips are asked to throw rared for this, that your Lord-occurred, but we say in law we Lorde, that there is no

this instrument dated 1896-us-thingh we have very high The Fresident: Then if you guity, but if your Lordships any action not specifically dealt not prevent its application that can be used by either partner at back your minds to ded with ships might not to wholly with aro entitled

NO far us the expetitions that you will upon are what is the use of reading think thera in, extrinaio evidence

"must be admitted. with and this option of the is not in his mind that he con-th other's boad.

Mr. Sharp-Nu, my Lord; it is it is clear partners to make a special ar templated under 15 the sale to a

Mr. Sharp-You ask me now The President :-You ask that Loes, that was actually intended coment. But in the event of rangement and take in at the partner and provided the pro-to come to an amicable arrange-authority of Key and Elphinstone the onstruction of this do affidavits now. whole figure, or a new figure-if ceeds ba, divided amongst the ment.

The President:-But if you to comprica in clanes 15 must be your not being wholly with what sort of ones could be raised. we ought to make some such

The us, and your having any doubts. It is raised for that purpose. I order?

Mr, Sharp-If your Lordships they don't, I submit that clause partnera because they contem- 15 operates. "Determination plated a sale to the partner, and, don't come to an amicable arran-specifically mentioned.

abeat you- implication is irresistable that if as to the meaning of this phrase is only one peragraph, I won't at all in- as we say, the object of this gement I will

the bracket is omitted the good-property and effects," then at read it. We didn't ask the Court aro of that opinion. Of course this would be without prejudice. MODDA any caso cluding the Cason already plause. They have expressed i (Laughter).

Mr. Sharp-It does almost will is not included. If the drafts- least it would be ambiguous, That below to decide it.

The Chief Justica :-I will read | What we are asked you Lord- dealt with in the four preceding rather differently, but I think

be mu't do so specifically, at the lowest we say it would mye iginal cotes re the ambiguity ships to find is perfectly clear- paragraphs. I understand they they bare a little misunderstood come to that, but the alternicive man was instructed to include it, is to say we cay it is clear, but

that it is unambiguous. We are is one prima fácie.

And we (Notes Trad). don't seriously contest that. Pro our argument.

The Chief Justice: Of course The President-low does the become ambiguous.

Mr. Sharp: They objected to saking not for an order but for We say that the object of this perty and effots which occare for the last time in this instrument clause was to bring pressure on the goodwill at that time would Partnership Act affect the forms? submit, oy Lorda, that that

You say if the Partner abip Act-would be enough. We would the evidence going in and later a formal decision that this is M. Sharp-We Buy our deed certainly rather and it would on Mr. Potter very properly un-uzambiguous and mesus what -it is clear that as to the tho partners to come to an arrange.not be worth much.

Mr. Sharp-It was put down

was in fact drawn in 1806 andare a great deal of time dertook to get the evidence we put to you. If your Lordships preceding occasions this phtasement. They have put it-and of does not include good will that course it is very easy to carry |at one-sixth of what it is now-.

The Chief Justice:-So that a and so if the Home form is to be if your Lordship adopted our view on affidavit and that affidavit was cannot find this your Lordship in accordance with the ordinary the argument which they have rules of construction, and as put into our mouths to the point sale of the goodwill would not relied upon it ie much better to that it was lear, but supposing obtained. It is perfectly clear are placed in this position-there get it before in any way disturbed your Lordships are not clear if your Lordship has to be is the evidence which we have the point and do not go the whole asked to attach any serions indicated, it will ty essential to the learned Chief Justice put of absurdity-that it was to force have yielded very much.

Mr. Sharp-It was $25,000.by the Conveyancing Aut.

The Presidens-Did the Conway, you must go as far as to any weight to the contention. If clear up the amigaity, and your

evidence is it, commonsence. The phrase has the partners to accept the actual

to Lordabips could not therefore The

are at least extrinsic The President:-Each?

that the words the same meaning on the third igures in the clause.

Mr. Sharp-I am not sure, veyancing Act disturb it? time. I need not trouble you with object of clause 15 is, as we

Mr. Sharp-I don't know in mbiguous. I base my argument be called we must indicate the make the order asked for.

The President:-Your position under these much authority on that be have whid, to force the part Yes, each. The total value was authority there is extremely demers to come to an amicable put down then at $50,000 and is what particular way it did, but upon that first of all on several nature of it by which we don't

which the words have bean bold what Mr Deucon anya on the af- circonstances we are bound to finite. Boal in bis last interpots arrangement in the event of to-day pat down at $300,000. My am quite clear precedents havcassa oited to your Lordships in mean your Lordships to decide would be that

any cause. friend Mr. Alabaster--I must re-alterad it.

The President:-I don't know to be ambiguous. That is to say, faidavit is what Mr. Shewan and dismiss the appeal if it is tion page 69 bires a rule" very dissolution from

The Chief Justice: I poder-fer to this in passing becaues I simple rule applicable to al in struments under this head. (The stood the contention was that take it he bad some reason for us about that. All we have is this that the words are clearly capable Mr. Tomes say, The Chief Jas- ambiguous. Or are wo to give. quotation read). The judgment of article 15 did not intend a sale to ing the phrase "anotion clause." form in Koy and Elphinstone. of thing regarded in two ways, tice did not find himself smbar the other side the opportunity of

Mr. Sharp Yee, I only put it and I think it is deducible from rosed in the matter, but be found

Mr. Sharp-Your Lordships It is with a little timidity that I Lord Chancellor Sugden adopted one of the partners.

The President:-I do not see approach the mat er, as I boda as fir an that. It is quite or this parpicular instrument that himself olear therefore I acad that language. I refer your Lord-

feeling that some want of ex-that was in fores at Home when the words were used in the sense we not fall back upon our second line, certainly could not grant the or-

The Chief Justice-I will read der. You cannot do 8.

The President:-That would ships also to the case where. 1 why not. think the point is really laurly Mr. Sharp-I did not say it erience on my part hall made the state of the law in Hongkong have submitted. The words are cap-

able of being ambiguous, that is my second line (Read his notes) deat with the man of Kenyon precluded it, if there is no arme not acquainted with the was the same.

The Pieridonet: That does shown by the decisions, We The prospect for a settlement are entirely preclude them in the fatare from cleaning up the am abmit if not so high as a cer-bright (laughter). and Bitke, 1900, I Chancery, 417. rangement under clause 15, there phrase. So I asked the solicitor

Mr Sharp--We all thought biguity. Your Lordship will ses the bead would of course bo an arrange-if he had been accustomed to the not party you very far, ·

Mr. Sharp: It certainly dossinty-w think it is-it is at

Mr. ShpIf there is any note at the first paragraph of it.,ment to sell to one of the part-phrase, and he said be bad never

doubt would let in by Mr Doncon of what actually doubt at out this I would like to and the Judgment of those two nera, quite clearly. I do not mean heard of it. My friend must not support their contention. It as bigh as a doubt, and that: There is no actual evidence

We hoped delay to have a few moments to consi- Justices, Lindley and Sir Francis it absolutely precludes it hot nec- have had some definite purpossam only using tl is not as part of this Joune, and Lord Romer-Lindley Dessarily. If the partners did in using it, because I have never my constructive argument, burvidence to show what the transpired,

The Chief Justice has page 418. (Mamer of the Rolls not come to an arrangement our heard of it, my friend Mr. just to meet the point raised by parties actually meant when they would be avoided and if you are der it. As it strikes me at present, and Sir Francie Jeune quoted) contention is that the alternative Potter has never heard of it, the other side relying upon forms entered into this agreemens.not with us on the whole of the they are asking for a certain or-

No Lot in ues at that time whereas Upon that point I would refer meaning absolutely clear, I re- der. has Mr. Hurston. Beal regarda it an a cannon is practically winding up, but, as nor of construction, and the Max your Lords upe will know from doubt it might with propriety these were: The forms in the vou, to Beale page 134, which spectfully submit your Lordships refused that order. They are now

heading latent ambiguity," in if it is ambiguous you cannot make one of the arguments.

The President: Supposing we ter of the rolls there, speaks of it the correspondance, we do not be used in a private auction, Encyclopaedia were not those in is very elementary law, under the must be with us so far as a whole, appealing therefrom and this is

The President: How about which evidence outside the consap order against ne on the facts. Ba a cannon of constrastion the desire a winding up. We bo- but this clouse is described use,

The President:-If we hold it hold that the words re ambig- tract is admissable to explain the Bense of which is clearly the lieve that if your Lordships put in all the books and forms as rule the Court follows. Jeune the construction on this clause winding up and dissolution, and Davidson?

Mr. Sharp-I will deal with ambiguity. The matter is dealt is ambiguous we are not in ucus, we cannot reverse the order repeats a canon of construction which we say is the right one, it not only does it not mention

Mr. Sharp-I don't think that" eto. That touches on the second will bring about an amicable Br auction and therefore it cannot that directly, my Lord. I was with much more fally, of coures in position to make an order at the of the Court below?

Mr. Sharp-That is situation would preolude them if they can point heard as regards property rangement. That is the only with propriety becalled an auction answering upon Key and Elphin- the contract b oks. I am refer-present time ?

clause-but the nature of the as-stone. And I say he should have ring to page 135 of the 13th

my Lord, we hope it will not be call this evidence to prove that other than goodwill. In this part-thing we want. icular case they were dealing The Chief Justice-We can set here would make it extremely used the forms which were in edition, Ubitty (Ubitty quoted).

Then the paragraph goes on to reached, but it is the situation these words in this particular unlikely for the to be realised by force at Home when the stats of

your Lordships with the word clearly qualified in hardly go into that.

as your Lordship has indicated. that which Bome instances and in another Mr. Sharp-You cannot, of auction. The asset, or a very large law in Hongkong was the same deal with art and science of low which will be resched if you do instance had another meaning to Mr Potter-116, 116 Library Our contention is it is very far find in the document. Any pro- they apply the same qualification course, but that was gone into proportion of them, are stars, 38 in 1898. My Lords, then and the like.

from an ambiguity and is as clear ceedings directed to that purpose I would like to consider and ex- throughout. It was the difficulty fally before your Lordship, and il and, without going into the there is the caes of Smith and

Mr Sharp-That is the fifth-a we put it. in this issue. In some instances our construction is the right one precise figures, the total valuation Nelson, 92 Law Timer page 313 editor.

The Court then adjourned for press myself more definitely later, At present I put it that your this meant children and they say no doubt the result will be an of the assets including the shares Your Lordships will find that the it means children throughout. amicable arrangement. We trust is somewhere in the neighbour date of that is 1905. That was a tenth edition my Lords 115 and

We do not want a sale hood of two millions, and winding up case in which good-116 which I sea are in the same tiffio.

Mr. Sharp: When your Lord Lordships cannot reverse the We have got fur further than that No. in the phrase of property and piecemeal. We say that can the realisation of the shares will is. Be a matter of fact, sogange because they are just affects, the collo ation of this not be brought about, and would hardly be by auction. mentioned, (Mr. Justice Joyce the same. Now my Lorde with hipa adjourned I was dealing as Chief Justice's decision, as well

course they

Could be quoted). That is rather by way of out dwelling further in these your Lordships will remember as the much stronger reason I

authorities,

think I

they with the point of the admission have given.

The Chief Justice:-I suppose phrase com ng in the restricted that the alternative provided O1

1of extrinsic evidence in the event meaning can be both therefore, in clause 15 is the alternative so realised, I know, but there obiter, I think.

It is lis

that no direction

The Prarident:-Was be con, are all the one way. they

will give you. B

dilation of your Lordabips not being en-you could put it also in this way with the same meaning in the that should be used. three, and carries us beyond the pressure bot to force them to shall be dealt with in that partic-sidering the question?

Mr. Sharp-I dont think he of the evidence. It is an affidavit tirely with us on our main con- with regard to the extrinsic evid dubięty zone, A man, even in his take certain figures which might ular mode, and I submit that there will if he used the words in a part: ander certain circumstances not is no propriety in calling it, as my specifically was; I am not sure. and it would be pot forward us to tention that this instrument clear-ence on the construction of a dead,

In testator's will? ticular sense that is he says used be equitable. For circumstances friend does, an auction clause. But even if he was not I think what cecurred at the time of the ly does not under clause 15, it would be the same as a solicitor Mr Sharp-Yes, my Lord, ox" by the testator and no other are conceivable in which goodwill This clause is described in the you will attach great weight to contract between the two parties. under the phrase "Property and called on probate to explain a

November 7 1013).

the event of your Lordships not it may mean a different ought not to be paid for on the marginal note, from the form from Mr. Justice Joyce's views on (Quote Mr. Showan's atidavit effects" include good will, thing—but I don't think we re figure arranged, and we do not which it was apparently taken, ae conveyancing.

The President-Of course, Mr. Alabaster. I must object being wholly with us on that actly. But such evidence would clause for winding up and dis quire these authorities to declare think if such circumstances.erose

in the following affidavis and you fail to be with us so far as the ambiguity of which this is a the proposition that where the that it would be equitable to force solution, fam merely putting it. But clearly goodwill may be to this because it was continued point I shall submit you cannot only be admissable to explain

Mr Sharp:Quito Bo. therefore cannot decide an issue suggestion that it is ambiguous, typical instance, draughtsman has attributed either party to pay if it was not to your Lordships that it is a inoluded or it may not.

The President-I have put. on a fact like this on these we submit thereforenll the clauses clear meaning to the words whichworth it. So we say that the misnomer to call it an auction

and the extrinsic evidence in the the points to you now in order he has used in an instrumabot purpose of clause 15 is to bring clause,

affidavits. that meaning must be unless pressure upon the partners to Mr. Jonkin It is a convenient

Mr. Sharp: -1 am with my affidavits is what the parties in-that yon might know where we tended, and the draughtsman, are, I take it that it would be friend. faced with overwhelming evidence make an amicable arrangement to say that in another part of the that one shall take over from the phrase.

Mr. Sharp misleading Mr. Sharp Certainly. Our Mr Alabaster: At most, even Mr. Victor Deacon in this instru-competent for the Court to give phrase, I think. My friend aleo frat argument gore so far as to if it were admitted it would not ment intended to communione ite decision so far as it was able Rays a clause for winding ap show that the draftsman bere did be evidence and that would be to the parties at the time would and to direct that evidence should"

The first be admissable to explain the be called for in this Court ? attached to the words througout rather a matter of guess work?

and dissolution never mentions not include it. Conversely, my another objection.

Mr. Sharp-Preserving all our the instrument: And here Mr. Sharp-Well, I go upou goodwill, wheresa. taking Lords, my friend relied upon point I take it, is an issue the ambiguity.

rights of appeal. have these words which

The President :-Oh yes. the the absolute construction that it

does. David and Matthew a taking over judge has not found in the Chief Justice interpreted c-did not include goodwill, which over cliuss must and

that my case in which goodwill is not men-case.

Mr. Sharp: We are rootly we have the property. makes it clear that it does not friend Mr. Alabaster puts it tioned and yet it was held to be in- There are terms in this document contemplate a sale sa a going that the diviling line between oludest. That is 1890 1 Ohancery Mr. Alabaster: Not admitted,

abcolately confident of our con

we should not like to be asked to which are not quite clear with concern. I find that in the clause. the case where goodwill is and is 378. (Care quoted), I have given it is denied, and the moment we

struction of the document that

regard to the first two. This

The President: There was accept any view which will pre- meaning we put is essentially, find the pressurs in the clause not specifically mentioned is the your Lordships already casee on put it on the affidavit it is denied. The President: It doesn't take line batween a taking-over clauso both sides against my friend'aron-

no doubt what bis instructions judice our right of applas to unless there. is overwhelming itself?

the construction of the doon- and a winding up clause. Now, tention with regard to where the them anywhere?..

were? evidence to the contrary, the

Mr. Alabaster: No. Mr Sharp-Yea I do, the mean-

Mr. Bharp No; and no expres-ment, which would involve a name meaning in the three we ing being the meaning which I my Lords, I have not bad time to dividing line is placed. I have

look very fully into the author given your Lordships two cases Mr. Sharp: I know my friend

land) which it is very desirable have put supported by all the have argued to your Lordships ties mentioned this mot oing, but with winding up olaus in is right, it is outside the point Ision at the time upon the point waste of time (he being in Eug- other argament elaborated in the already. That is the only reason-

The Chief Justice Did not to avoid, judgment. It is manifest, taking able effect. I find it in the clause one thing I notice about my which goodwill mentioned raised here, but it gives us the was revealed.

friend's authorities and about and another case in which good-right to call extrinsic evidence

Mr. Sharp:Your Lordships the agreement as a whole, that itaolf in the words that if no other which I am rather surpriced is will is not mentioned and yet and they have a right to meet it. come into the statement at all. The President:-Quite so

not calling it now mentioned the matter to my partnership property and good-arrangement is come to, there will are treated as distinct in all results follow. The moaning is that they are all after the Con- is held to ts included. But, We are the clauses which relate to this that if you desire to avoid these veyancing Act at Home and after my I rds, the whole of this brause Mr. Victor Deacon is now learned brothers my recollection will permit me to refer to that

to

the Partnership. Now this port is wholly immatain, as it is this in England, now retired, the of what it was passed, that Mr necessary? the other matter at all. That is to say dis results, comne

In that sense

nership agrement was prior to instrument which your Lord bips man who drafted this agreement, Shewan's affidavit stated some- solution clauses which are the arrangement.

the Partnership Act here: have to interpret, and I submit and wo say it is open for my thing that was from Mr Deacon 'last five or six in the instrument, the

porposo of

the phrase "property and effects". In all that series of clanned the clause is to bring press. It is not necessary to gay it was these words properly and effects friend to call evidence to moet na to what took place and it was my second point is that whether Mr Sharp: That is an issue we does not include goodwill-of we have this partnership business ure to bar, on the partners to prior to the Conveyancing Act, give your Lordshipa practically this. What Mr. Deacon said challenged.

hecause we have not one here. to alternativo as to the interpret occurred at the time of making property which they have called come to some amicable arrange-The forms from the Eocyclopae-ation you will pul urma them, this agreement between the par-jcannot ask you to decide, but cours3 we have our own 'opinion Elte goodwill, which I have called ment.

dia and the forms referred to Would your Lordships like to ad-ties and show that our countruo merely the admisrability of the on that the requirements of this The President: It seems to B distinct. I submit my argu

this morning were all saber quent journ now?

tion is correct. That evidence evidence as to the intention of claurs would not be satisfied ment, the phrase property and me that last argument of your both to the 1882 Conveyancing

The President-Do you think we say we are entitled to call if the parties when they entered under appellant's construction, effects is even more conclusive. shows a distrust of the partneis|

Act, which we have

not you will finish by noɑato morrow? we have need to put our case into the agreement with regard but would be under oure. Your The reson why, the first resson for each other at the time they got in, Hongkong, and the 1800 Mr. Sharp-Oh certainly, higher than an ambiguity,We to clause 15 and the good Lordships will fully understand which I have although I don't tered into the original agreement. Partnership Act, which we dir The Chief Justice-14 May we have put it very much thereunder, on: on that point we that the first point is or really adopt my friend's view, that

Mr. Sharp-Well, it is open not get in Hongkong until 1897, Patter roing to follow? higher, and if we have not folly claim the right to call extrinsic strong point, and I shall deal with suggested reason which is not to that comment, my Lord. But after the date of the partnership Mr. Sharp-Yes, shortly. succeeded in putting it higher fevidence if your Lordships were the two remaining pointe much very blear the reson I would I should not like to put it so,

agreement which we are anked) The President: I mean will than an ambiguity then we shall not with us entirely. We submit more shortly I hope in the course this and if your Lordships are of this afternoon. Upon general put it has been hitherto Auything a prudent solicitor soos to construe they are not relevant, the arguments for the respondent have to call this evidence.

although fit and necessary to insert into a My friend also refers to Kay and finish by noon to-morrow? The President:-If it is isa't an with us so far wo submit so far low, my Lords, I do not think. I common ground M Jonkin questioned it now, a partnership agreement to pro Elphinstone, but I think the

Mr. Sharp-Ishould think we ambiguity what do you propose you cannot fail to be with us on need to ask your Lordships to the expression at least in this re-delay for a moment. It is set out tist the goodwill is of little or no vide against what might coa forma which apply to this should faish by un to-morrow, to do?

fully in the Chief Justice's judg valus except to the partner, and ceivably happan in the future would be Key and Elphin- the two of 1.

Mr, Sharp: If you find that it is gard-ambigions."

The President-trinnot help ment which has been read and is the draughtsman does not clearly anything so inserted

paranges from Lindley which the Contentplate-though he even necessarily be said to show dissione volume 2 page 93, form 40, The Prident: Go on then, n'y an ambiguity-Choy › I sha

must call extrinsic, upate if

Justice ordinary provision for winding comes in the point of ambiguity far, wo

Chief Went so far as to day there would trust. The answer would be that with a marginal, note for the Mr. Sharp-Now, my Lords, not have to 83 far, although very feeling it would te very unfort dealt with very exhaustively in

Mr. Sharp: We do not desire

incorporated be no bidder except the partner it was a mere act of prudence on up and disqulation. (Oass quoted), which my frien referred to evidence of the ambiguity, w9′

kia judgment, that the goodwill, was worth the part of the lawyer,

instrument he had another in-other.

The President: Is not that

tention That meaning must be

ие

The President:-You say you

'manifest

oannot

E

10 say That is

The President mean there may be an agreement excluding it. It may be included unless it is excluded.

V

The President: Not admitted?

The President: Mr. Deacon roted for both parties?

Mr. Sharp: I think he did- there is no doubt that he did, as matter of fact he drew this Breement,

•

if

13

BO

The President :-Oh certainly.

Mr. Bharp:-Now, my Lords,

Page 10Page 11