September 4, 1895.]
$148,690,19, leaving a balance due from the compradore to the Bank of $122,968.41. Therefore the position of the plaintiffs was that even if his Lordship decided against them on the question of profits, interest, and expenses, the compradoro was still indebted to the Bank in the sum of $122,968, of which Cheung Kai was liable under his bond for $100,000. Counsel then referred to the details of the account, and among them was the sum of $112.50 paid on a number of Punjom shares, and the sum of $1,275 paid to the Him Loong firm on certain promissory notes.
His Lordship The Him Loong are the pork people, are not they?
+
Mr. Francis-Yes, the pork people. (Laughter.) Proceeding Mr. Francis said there was a sum of $120 incurred in legal expenses in reference to a promissory note given by a Chinese man- darin at Swatow for $14,000. This was one of those-so called securities swept up on the night of March 20th. Lo Hok Pang was guarantor on several bills of exchange, and proceedings were taken in Canton with a view to getting something from him, and $3,828.29 was realised on his property in Canton. The total amount of the disbursements was $7,044.40, and the total amount of the account was $310,234.57. The total amount од the credit side Was $148,690.19. and the balance due was $161,541.38, so that amount was outside the olaim against Cheung Kang Sing. As Counsel understood from the pleadings the defendants did not dispute the compradore's liability or the liability of Cheung Kai prior to May 31st, 1892. On the face of the bond the compradore's liability was abundantly clear. He was to make good all Chinese bills and documents purchased through him. According to the defendants they served the plaintiff Bank with a six months' notice, which freed him from all future liability. They also state that on or about 30th May the plaintiff Bank so dealt with Kan Sing Toi as to release Cheung Kung Sing, the principal. Their pleadings seemed to suggest that the Bank was paid by Kan Sing Toi the overdue amounts on these transactions, and that time was given to Cheung Kung Sing; but they did not allege that he was given time by any binding contract. They alleged that the plaintiff Bank released Cheung Kai from all liability by debiting the account of Kan Sing Toi with the sum of $97,223, thus showing the intention to make Kan Sing Toi responsible for the pay- ment of the deficiency on the bills, and to sub- stitute Kan Sing Toi for Cheung Kung Sing or Cheung Kai. Counsel submitted it was clear law that the taking of an additional security was no discharge unless it had the effect of entirely releasing the one and substituting the other for security. Unless there was a binding contract to give time there was no releasing of the security. It was equally clear law that if the Bank dealt in any way with the other principal so as to prejudice the position of the surety he might be released so far as that prejudice ex- tended:
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CHINA OVERLAND TRADE REPORT.
179
prejudiced Cheung Kung Sing. The security was not, supposing there was one at all, a sub- stituted security, but an additional security.
At the conclusion of Counsel's address his Lordship pointed to his wig, which he had taken off, and said to the barristers, "You can always. take these things off if you will feel more com- fortable." The wigs were at once laid on the table.
.
Mr. S. L. Darby was called and spoke to the various transactions referred to by Mr. Francis. At four o'clock Mr. Francis said “Will it he convenient for your Lordship to adjourn now ?" His Lordship I will sit for half an hour more if-
Mr. Francis-But my Lord, the case cannot be finished to-day.
His Lordship-Well, let me see. Half past ten to one; two to four--four and a half hours. Mr. Drummond-My lord, I hope you will consider the thermometer as well.
His Lordship-Yes, I will. I always like to sit five hours a day when there is a long case ; but I will adjourn now. We will meet at 10 o'clock to-morrow morning.
The Court then adjourned..
29th August.
(Cnu2 (196)
IN SUMMARY JURISDICTION
BEFORE MR. A. G. WISE (ACTING PUISNE JUDGE.)
WESSEL v. CARLOWITZ AND CO. F. Wessel brought an action against Messrs. Carlowitz and Co. to recover $1,000 for wrong- ful dismissal and breach of contract.
count. On or about 31st May he appeared to be indebted to the Bank in the sum of $600,000. and his securities were worth $500,000, so that on the face of his securities he was indebted to the Bank in the sum of $100,000, and not, as was alleged by the defendants in their answer, considerably in credit, because their allegation was that on 31st May when the $97,000 was debited he was in funds, and that his securities showed such a large margin that the $97,000 might be looked upon as paid off. His exact indebtedness was $601,913.46. On March 27th he agreed that the amount of the Kyon Fuk bills should be charged against his account, and he refused to agree to his account being debited to the amount of the Wong Tang. Yau bills, because he said the Wong Tung Yau had not closed its doors, as one of the parties was supposed to be very wealthy, and able to meet all liabilities. Nothing was done at that dato with his account. Afterwards the Wong Tung Yau closed its doors and they were unable to pay their drafts, and the supposed wealthy partner turned out to be practically useless for the purpose of payment. About April 11th Kan Sing To found himself in such serious difficulties that he left the colony altogether. A receiving order was made against him on April 27th, 1892, and he was adjudicated a bankrupt on July 25th the same year. After he had vanished Cheung Kung Sing was very anxious that his accounts should be debited with the total amount due from the two firms he belonged to In consequence of the bankruptcy proceedings Mr. Inchbald thought it desirable that his accounts should be debited with this amount. According to bank law, unless there is a special agreement to the contrary, any dealings to the credit of Kan Mr. Holmes appeared for the plaintiff and Sing Toi would be applicable, entry or no entry Mr. Gege (of Messrs. Johnson, Stokes and agreement or no agreement, towards payment of Master) appeared for the defendants. any liabilities he might owe to the Bank. So then when on May 31st his account was debited with the sum of $97,000 the fact of making entry in this account did not add in the least to his liabilities, and did not alter or improve the Bank's rights. As a matter of fact, however, the entry was a mere book-keeping entry having no meaning at all; there was no agreement with Kan Sing Toi because he was absent from the colony. So far as Cheung Kung Sing is concerned this entry was made at his request in writing, he specially agreeing that he would make no altera- tion whatever in his position or in his liability to the Bank. On May 31st he wrote a letter to the manager of the Bank asking to be released from his responsibility as compradore. On June 3rd he got a little nervous and was afraid he had made himself liable for the whole of Kan Sing Toi's liabilities, and wrote saying that his position towards the Bank re- mained the same as if no debit entry had been made in the books, and he also agreed to make good any deficiency not exceeding $97,223 which there might be in the account of Kan Sing Toi after the release of the securities which the Bank could dispose of in any way without re- ference to him. He also agreed to make good The facts of the case were then related by to the Bank, should they call upon him to do so. counsel. Kan Sing Toi was a partner in the the deficiency shown by the bank books with Kwong Fuk firm, one of the Banks who were the reference to the bills, such payment to drawers of some of these bills. It was indisput-relieve him of his guarantee on Kan Sing able that he was manager and partner in the firm, and he was also a partner in the Wong' Tung Yau. He was the person who actually negotiated the bills with the Bank through Cheung Kung Sing; therefore the former was primarily responsible to the Bank and primarily liable to Cheung Kung Sing. The name of Cheung Kung Sing was a party on the face of all these bills, and that was the reason why counsel said that Kan Sing Toi was liable to the Bank as well as to Cheung Kung Sing. On Sunday, March 27th, Kan Sing Toi was present in the Bank and saw Mr. Darby. Mr. Inchbald, and Cheung Kung Sing, and by letter he anthorised the Bank to charge certain shares of his, which they then held in respect of his liability, on the Kwong Fuk Bank bills. The position at that time between Kau Sing Toi and the Bank was precisely as the defendants had set out in the pleadings. Kan Sing Toi had obtained advances of $600,000 or so on securi- ties, and he had two accounts opened with them.. One advance he had obtained at six per cent. and another at seven per cent. Shortly prior to 31st May the two accounts were carried into one ac
Mr. Holmes said the claim was for a year's salary, which amounted to $1,400, but the amount of the claim was reduced to $1,000 in order to bring it within the jurisdiction of the Summary Court. An agreement for a term of three years was entered into between the parties, and Wessel's salary was to be $1,400 for the first year, $1,500 for the second year, and $1,700 for the third year. There was a clause in the agreement to the effect that Carlowitz and Co. had the right to dismiss Wessel before the termination of the agreement by giving six months' notice in case they were not satisfied with his work. In pursuance of the agree ment Wessel came to Hongkong and arrived here on the 31st July. He reported himself at the office of Carlowitz and Co. in the afternoon and saw Mr. Sachse, who informed him that he might go and look round Hongkong. The plaintiff fully understood Mr. Sachse to say that he might have liberty for a few days to look round the colony, get quarters, and settle his affairs.
Mr. Gedge-As a matter of fact Carlowitz and Co, provided quarters.
Mr. Holmes said he was instructed that Wessel provided quarters for himself outside. By leave of Mr. Sachse plaintiff absented himself for a few days. On the 1st August no question was raised about his absence. On the 2nd August he remained away and in the evening was surprised to receive a letter from Mr. Sachse expressing astonishment at plaintiff not having gone to the office that day. Plaintiff made enquiries from friends, including gentlemen connected with Carlowitz and Co., and was informed that Mr. Sachse had that day left for Canton and there was no one in charge to give orders.
The Acting Puisne Judge-I cannot agree with that--that the head of the firm went away and left no one in charge; it is absurd.
Tof's account. The plaintiffs submitted that there was no agreement there whatever to give time. He had given the Bank power to realise the securities at any moment, and he did not bind them to watch until there was a favourable turn of the market before reali- sing. He said "I make good to the Bank the amount due on the bills, and I shall be released at once from any guarantee, with reference to Kan Sing Toi's account." There was in the letters no implied agreement to give time to the compradore; on the other hand there were expressed provisions which showed that he had no intention to ask for time, and that the Bank had no intention to give him time. The Bank reserved their full liberty to realise the securities whenever they though fit, and they did not bind themselves in any way to hold back their claim against him until they could realise a profit on these particular securities. Kan Sing Toi was liable for $97,000 as one of the partners, and his securities were liable, according to bank-day. ing law, to make good that same amount. Even if there had been a contract with Kang Sing Toi there was nothing which in the least degree
Mr. Holmes said he put it that way because the plaintiff understood such was the case. On the 3rd August, which was a Saturday, plaintiff went to the office. Mr. Sachse was absent; he was given no work, and he went away. The following day was Sunday and of course he did not go to the office.
The Acting Puisne Judge-There are plenty of offices open here on Sunday.
Mr. Holmes I shall submit to your Lord- ship that no work is done in this office on Sun-
The Acting Puisne Judge-The Sunday Cargo Working Ordinance does not apply to offices.
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