382
THE HONGKONG WEEKLY PRESS AND
the moneys and to daily examine the accounts and to see that no favour is done to each other, and that no payment is irregularly made, so as to prevent partiality. It is further agreed that the old employée Woo Lai Woon shall be employed as a shipping clerk, and Lo King Chi as an accountant for taking accounts. When the time comes for changing security next year, even if anything untoward should occur, or even though the proprietor of the Douglas firm should disapprove the new man as surety for Chik Hing, Chik Hing agrees to still abide by these conditions as long as he is compradore to the Douglas firm. He will, as an acknowledgment of the favour Taz Ki has done to him on this occasion by procuring the large loan for him, equally divide with each other all the income of the compradore's office, each taking half (the profit), so as to fulfil the promise he has made from beginning to end, and he will never retract from these words. This is purposely mentioned in order to prevent further discussion. This is evidence-Kwang Sui, 15th year 11th moon 25th day. 17/12/89. T80 Tsz Ki and Wong Chik Hing in their true handwriting signed this note. The so-called promissory note was as follows:- "Now borrowed from Mr. Tso Taz Kee $10,000 in current bank notes. It is agreed that interest at the rate of $10 per $1,000 per month shall be charged. The use of the money is limited to two months, after which the principal and interest to be repaid in full. This is proof. Securities for the repayment, Woo Lai Woon, Lo King Chee. Witness, Lo Moi Sang. 17th December, 1889. This note is made by Wong Tsik Hing; true handwriting." No doubt in the ordinary course of things it is the duty of a surety to see that his principal pays. According to the note Wong Tsik Hing ought to have paid in February, 1890 though, according to the written agreement, which must be considered as well as the note, it was-intended that the note was to be satisfied in the first moon by a new one being given by Wong Tsik Hing instead of by actual money payment and that the note would then be handed to the defendant and his co-surety to be cancelled. Now what happened seems to be as follows: The plaintiff, who was mostly at Macao, where he was on Chinese New Year's day (21st Jan., 1890), came over to Hongkong on 25th January and thenceforward had several interviews with the compradore, the defendant usually being present. The plaintiff also saw Mr. Davis, of Douglas Lapraik, and, in the end, though Mr. Caldwell and, later on, Messrs. Wootton and Deacon cured certain defects in his title-deeds, which Douglas Lapraik had required to be put in order. he never became security at all. The arrangement fell through, and about July, 1890, another person, Chan Tung, became security and the defendant and his co-sureties became liable to make good the $40,000 for which they had become security for Wong Tsik Hing as compradore, and so lost the property which formed the subject of the security to Douglas Lapraik. The defendant contends that it was through the fault and the imperfect titles of the plaintiff that be failed to carry out his agreemennt to become surety. The plaintiff, however, says he discovered, after he lent the $10,000, that the compradore was largely indebted and so was unwilling to carry out the arrange- ment, though he declared in the witness box that it was never.suggested by any one that in becom- ing surety for $60,000 he would incur any liability as to the indebtedness of the compradore in- curred prior to the date of his becoming surety. He never intended, nor was he asked, he says, to be surety for anything but future indebted ness and there is a direct conflict of testimony on the point as to whether he was in formed, before he signed the agreement of 17th December, 1889, that the compradore then owed the firm over $30,000. In the result, no new promissory note was given and the old note was not handed over to the defendant and his co-surety to be cancelled. The principal debtor became bankrupt in December, 1890, the defendant's co-surety has now been long absent from the colony, and the defendant swore that he was never asked to pay till he received a lawyer's letter, dated 9th July, 1895, requesting him to pay the $10,000 principal and $6,600 for interest, which he says he thought "extraordinarily strange." The
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defendant appears to have remained in the colony till 1893 and to have been employed at the Fat Ki coal shop. The plaintiff says the defendant was asked to pay then, but this the defendant denies. He left for Japan about July, 1893, and returned in April, 1895, but he swears he saw the plaintiff between 1890 and 1893 while he was still in the colony, and the plaintiff did not ask for payment. If the defendant's liability was not considered at an end it certainly seems strange that he was not sued before he went to Japan and it was deposed to, both by the defendant and Wong Tsik Hing, that, early in 1890, the defendant wanted the note given up and the terms of the agreement carried out, but was told the note was in Macao and that statements were made by the plain- tiff to the effect that the note was unimpor. tant, it was a matter thereafter only between the plaintiff and the principal debtor," the note was of no use, and the defendant deposed told plaintiff to change the note and to take me out from being guarantor. He said this note does not concern you now; there is no need of your being guarantor, nor can I ask for
you money; this note is now mine and the principal debtor's matter." Wong substantially corroborates this evidence and said that when pressed to burn the note he told the defendant that Tso Tsz Ki said the note was then of no use and he gave the agreement of 17th December to the de- fendant to keep, to show their guarantee was only for two months. The plaintiff, however, denies saying the note was no longer important. Wong also stated that in 1890 he gave the plaintiff $3,300 worth of notes due to him to collect on account of the $10,000 and interest, and the plaintiff said he could pay the balance of $7,000 in three years or when he "made wealth." The plaintiff, however, denies this and says that the notes proved worthless, the makers were insolvent, and the notes were returned to Wong by Lo Min Shang, who was called to prove he did so return them. Wong denies having received them back. Unfortunately in this case there is con- siderable conflict of testimony and, as the parties did not wish for a jury, I must decide upon the facts as well as upon the legal effect of these facts. Wong Tsik Hing being largely in debted, and having no money to pay with if he ost. continued largely to speculate in shares. Such conduct is so dishonourable that I discount the value of his evidence when it conflicts with that of a man against whom nothing is known. but I see no reason why the defendant is not as worthy of credit as the plaintiff and Wong's | evidence corroborates the defendant's version. The defendant and Lo King Chee were already sureties for a large sum for the compradore. They only agreed to be surety for the extra $10, on certain conditions. There was a time liniit. It was agreed the plaintiff was to become surety for the compradore in the first mooon, that is within a month after 21st January, 1890, and that a new promissory note (in which, in my opinion, the defendant's name was not to appear) was to be giren and the old one cancelled in that first moon, and as a further consideration for becoming security for the two months the defendant was to be employed as shipping clerk. The plaintiff failed to carry out his agreement to become surety, in my opinion, because he did not use and did not wish to use due diligence to put his title-deeds right. changed his mind, I believe, about becoming security and did not carry out the arrangements which induced defendant to become guarantor. The defendant never got the post of ship. ping clerk and yet in July, 1895, has a writ issued against him and he is asked to pay $10,000 and $6,600 for interest. fully considering the whole evidence I find as a fact that the plaintiff in 1890 by his words and conduct did wilfully cause the defendant to believe and act upon the belief that plaintiff no longer looked to him for payment of the $10,000 and that his liability as surety was considered by the plaintiff to be at an end. I find that in so doing he altered the position of the defendant, who, under the belief that the plaintiff no longer looked to him, might well take no fur- ther steps to insist on payment of the note by the principal debtor or upon the new pro- missory note being given and his own surety- ship being cancelled. In the witness box the defendant said "I took no proceedings
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[May 7, 1896.
against the plaintiff to get back my guarantee as the note was of no use." Accordingly I-find for the defendant and give judgment for the defendant. In the ordinary course costs would cumstances in this case, in addition to those I follow the finding, but there are certain cir-
have alluded to, which make me think that order as to costs and leaving each party to pay justice would be best satisfied by my making no
his own.
4th May.
IN ORIGINAL JURISDICTION.
BEFORE HON. W. M. GOODMAN (ÅCTING CHIEF JUSTICE).
JARDINE, MATHESON AND CO, V. A. M. A. SHIRAZEE.
The plaintiffs claimed altogether $7,264.04 from the defendant, who is a merchant carrying on business at No. 18, Hollywood Road, Hong- kong.
Mr. J. J. Francis, Q.C., and Hon. H. E. Pollock (Acting Attorney-General), who were instructed by Mr. V. H. Deacon, appeared for the plaintiffs, and Mr. E. Robinson (instructed by Messrs Wilkinson and Grist) appeared for the defendant.
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The
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Mr. Francis said the claim was against the defendant as acceptor of two foreign bills of exchange for $4,000 and $3,000 respectively, which were drawn by Haji Mahomed Kerim Shirazee in Persia upon the defendant payable to the Imperial Bank of Persia in Ispahan or order, and were endorsed by the Bank to the plaintiffs and were accepted by the defendant. The bills were duly pre-- sented to the defendant for payment, but they were dishonoured by him and were noted for non-payment. The first bill was for $3,000 and was drawn on the 20th June, 1894, accepted by the defendant on the 18th October, 1894, and was payable on the 25th October, 1894. second bill for $4,000, which was drawn on 26th September, 1894, and accepted by the defendant on the 5th November. 1894, was payable the 29th. December, 1894. The principal due on the hills was therefore 87.000. In addition to that the plaintills claimed in respect of the first bill. SBB interest thereon from 25th October, 1894, till 7th June, 1895, at 7 per cent. per annum, and 15.25 for the cost of noting the bill. respect of the second bill the plaintiffs further clained $123.51 for interest from 29th Decem- ber. 1894, till 7th June, 1895, at 7 per cent. per annum, and $5.25 for cost of noting the bill. The amount of the claim was therefore $7,264.04, and the plaintiffs of course also claimed interest thereon at the rate of 8 per cent. per annum from the date of the issue of the writ until judgment. Messrs. Jardine, Matheson & Co. held these bills simply as agents for the Imperial Bank of Persia for the purpose of collection. They were not the holders in due course for value aud had not been in any way connected with the transactions under which the bills originated. The bills were presented for payment on 2nd January this year, but defendant refused to pay. The petition to the Court was in the usual form, and the defence set up in the pleadings raised four issues which it was agreed upon be- Hetween the parties should be the only ones in the case. The issues were: (1) Are the plaintiffs as endorsees and holders of the instruments referred to in the portion of the claim entitled to sue? (2) Are the said instruments bills of exchange and negotiable instruments P (3) Did the defendant accept the same? (4) Did the Imperial Bank of Persia purchase the same from the drawer for value? With regard to these issues it had been agreed to have only the first three tried that day and to allow the fourth to stand over until further particulars came from Persia. In regard to the first issue Mr. Francis said that, assuming the documents were bills of exchange, the plaintiffs relied on section 38 of the Bills of Exchange Ordinance, 9 of 1895. Counsel read this section and also the and said no further definition of "holder argument was necessary. Speaking of the remaining issues counsel referred to certain translations of Persian documents and quoted seotion 8, sub-section 4 of the Ordinance, and said the only material matter was that the
After care-
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