The-Hong-Kong-Weekly-Press-1897-07-15 — Page 7

July 15, 1897.1

are to take legal proceedings on Monday next unless in the meantime the matter is settled in a manner satisfac

tory to our client.

Yours faithfully, JOHNSON STOKES, and MASTER,

G. A. Watkins, Esq., The reply to that letter was as follows:--

11th June, 1897. Dear Sirs,In answer to yours re Mr. Bischoff's claim am prepared to and have offered to pay the difference between the market rate on the 31st ultimo and the con- tract price of said shares; $1 per share, and unless Mr. Bischoff accepts this, which is customary and fair, the case must go into court.

Yours very truly,

Q. A. WATKINS, Messrs. Johnson, Stokes, and Master. Then followed this letter:

11th June, 1897. Dear Sirs. In reply to your letter of this date we are aware of the position you attempt to take up. Seeing that you are not prepared to admit your liability and set- tle the matter we presume it is no neo giving you any further time and we are therefore about to issue a writ. Have you a solicitor upon whom you wish us to serve the writ of summons and who will accept service?

Yours faithfully, JOHNSON, STOKES, and MASTER.

G.A. Watkins, Esq., The reply was written on the same day :-

11th June, 1897. Dear Sirs, You are slightly in error when you say I. refuse to settle Mr. Bischoff's difference re Punjoms. I have repeatedly offered and am still willing to settle ac- cording to the usual custom, that is, the rate of the day the shares were due. I cannot afford a solicitor, so the writ will be accepted by me.

Yours truly,

G. A. WATKINS.

Messrs. Johnson, Stokes, and Master. Mr. Master then said that $375 had been paid into court by the defendant, that being at the

rate of $9.50 per share, and this action was brought to recover the difference between $8.75, at which the shares were sold, and the price mentioned in the contract, namely, $11 per share, less 10 cents paid for brokerage.

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Plaintiff was then called and said-I entered into a contract, dated 22nd February, with the defendant for the sale to him of 250 Punjom shares to be delivered on the 31st May. I held the shares until the time came for delivery. On the 31st May I received a letter from r. Michael and in consequence of that letter 1 wrote to the defendant and told him that if he did not take up the shares by 3 p.m. I would sell them in the open market. Defendant wrote in the chit book Will reply. G.A.W." I made enquiries what the market rate was, but I waited until I recieved the reply before taking further action. I enquired of Mr. E. S. Joseph, broker, what the market price was and he wrote me letter, which I have lost. I tried to sell the shares through Joseph on the 31st May, but I could not get an offer. I did not tell him to sell, but I asked him to get me an offer. I first went to Mr. G. H. Potts, who told me he had no buyers.

I received defendant's reply on the June and on the following day I went to him I told him I could not wait any longer for the money and I should have to sell the shares that day. He said he understood I had sold them for $10 each. I told him " However could you think that I had sold the shares for SIUP The rate was $9.50 sellers in the afternoon and I could not get buyers." He added that he thought it was customary to pay the market rate.I told him that the shares were firm at $10 in the morning; why did he not sell them ? The defendant said the shares were not in his hands, and I replied that the shares were, in his hands until 3 o'clock. He said he could only pay $1 difference, but he had no ready cash to pay. I proposed that he should pay me money down for some and I would take security for the rest. He said he could do nothing, and I said I should go to my lawyer. I sold the shares that morning through Mr. Michael for $8.75 per share and I wrote the letter of the 7th June to the defendant. My actual loss was $587.50.

CHINA OVERLAND TRADE REPORT.

wrote to Mr. Joseph asking him for an offer for the 250 shares. He wrote stating that the rate was $9.50 sellers and that if he had an offer he would let me know. I did not give him instructions to sell the shares; it is not usual to do so. I simply told him I had the shares for sale. I afterwards saw Mr. Potts, who told me the rate was $9.50 sellers. I asked him if he could buy from me at $9.50 and he said he had no buyers. On the following day, 1st June, the rate was $9.25 sellers and Mr. Joseph told me he would let me know if he got any buyers. I did not instruct anyone to sell at the best price he could get. I took defendant's letter of the 1st June to be a request to carry the shares for him. On re-reading the letter I do not think I was mistaken.

Mr. Master submitted that the letter of the 1st June could be read in two ways.

Re-examined-The letter from Mr. Michael, dated 31st May, was as follow:-"Dear Sir, I have tendered your 250 shares to Mr. Watkins to-day, but he told me to keep them and he would communicate with you, so you can now attend to this business."

Mr. J. R. Michael, broker, said-1 ten- dered the shares to defendant on the 31st May. He said "It's all right, keep them, and I will settle with Bischoff." I had instructions to sell them on settling day at 3 o'clock, but I could not find buyers although I tried to sell them. I sold them on the 2nd June at $8.75. On the 1st June the selling rate was quoted at 89.

By Mr. Hastings-I personally tendered the shares to the defendant. He may have said he had no money to take them up, but I do not remember. I cannot remember if he told me he could not take up-the shares and he would settle the difference with Bischoff; he might have said that. I do not know if I could have sold the shares ou the 1st June.

Mr. E. S. Joseph, broker, said he received a memo. from Mr. Bischoff asking him at what price he could sell 250 Punjoms. He replied. that he had no bayers, but he would see. had sold shares at $9.50 and $9.75 in the morn- He ing of that date, but there were no buyers in the afternoon as the market was weaker.

Mr. S. S. Benjamin, broker, of the firm of Benjanin, Kelly, and Potts, said that on the morning of the 31st May he did business in Punjoms at $10. There were

a good many transactions. There were по buyers in the afternoon. He was offered shares at $9.50, but he could not place them. On the 2nd June ho did business at $9.

Mr. G. H. Potts, broker, also gave evidence of the state of the market.

This concluded the case for the plaintiff. Mr. Hastings, for the defence, said there was little dispute between the parties on the facts of the case. He submitted that the plaintiff wes entitled to obtain from the defendant only the price of the shares at the time the contract was broken. The plaintiff's duty, directly the contract was broken by the shares not being taken on the morning of the 31st lay, was immediately to sell the shares in the open market. If he had done so it was known from the evidence given that he could have obtained probably $10 and at least $9.50 before tiffin, and in order to make the matter quite safe the defendant had paid into Court $9.50 per share.

His Lordship--The question is, was he bound to sell bis shares before the of that day? There was no doubt about the facts.

Mr. Hastings admitted that was the question. date the market was brisk in the morning and On that shares were selling freely at $10, $9.75, and $9.50, and in the afternoon the market was slow and probably nothing better than $9 could have been obtained. Therefore it was clear at least $9.50 in the morning and $9 in the after- that the plaintiff could have sold the shares for

noon if he had given an order. On the 12th By Mr. Hastings Mr. Michael wrote to me May the plaintiff had notice that defendant at eleven o'clock in the morning stating that could not take up the shares on the 31st May, defendant had not taken up the shares. Ireceived and on that notice plaintiff could have letter on the 12th May from the defendant taken immediate action and could have sued stating that he could not take up the shares on if he had chosen to do so. the S1st. I did not sell the shares at once bound to sell the shares at all. He could have because I wanted him to attend to his own kept them, but he could only obtain from the I wanted him to force me to sell the defendant the difference between the contract by writing me a letter. At eleven o'clock price and the price he could have obtained at shares were firm at $10. About 3.30 Ithe time the contract was broken. Plaintiff,

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however, chose to leave the matter until three o'clock in the afternoon. That was a matter for himself and unfortunately the delay resulted in a very much greater loss. The question was, who had to bear that loss P

The defendant was then called. He said-On the 31st May Mr. Michael tendered the shares to me over my counter. I told him I had not the money and I could not take them up and that he had better sell them the best way he could and I would settle the difference with Mr. Bischoff. I asked him what the market rate was and to the best of my recollection the reply was $9.50.

By Mr. Master-The letter of the 12th May certainly has the same

effect as if I had written "I am not going to complete the contract." If I had been left $5,000, be- tween the 12th and 31st May I should have taken up the shares. The letter was to tell him that so far as I could see I should not have the money to take up the shares. The reply to the letter was not such as I should expect if I had absolutely repudiated the contract. It is the custom if shares are not taken up on the con- tract day to sell them. I have done it myself several times and have either paid or received the difference.

and submitted that the question was, when was Mr. Hastings again addressed His Lordship the contract broken? Was it broken at eleven o'clock on the morning of the 31st May or was- it not broken until the latest time of business hours that day? He submitted that the contract was broken at eleven o'clock in the morning and therefore the price paid into the court was over the mark. The plaintiff chose not to sell the the shares at once and he kept them until three o'clock in the afternoon. As a matter of prin- ciple the defendant was entitled to the best price of the day and that was $10.

His Lordship-Suppose I find the price was $10 do you want money paid into Court back again P

Mr. Hastings-Of course we cannot get any plantiff is entitled to it. money back. If we have paid in too much the

Mr. Master said his friend had submitted that the defendant was entitled to the price at carry out his contract. The effect of that would the very moment when he said he would not

be that no time would be allowed the broker to consult his principal or for the principal to turn the matter over in his own mind and con- sider how he should act. If the case went against the plaintiff his Lordship would in effect say that the plaintiff was negligent be- cause he did not manage to sell the shares at $10 before tiffin. That was a most unreason- able proposition and one which would paralyze business. He asked for judgment for the plaintiff, who had done everything he could reasonably have been expected to do.

His Lordship said he would consider the point and reserve judgment,

9th July.

$375 had been paid into court, and his judgment His Lordship, in giving judgment, said that would be for the plaintiff for that amount plus $150, the total making the difference between $9 a share and the contract price, $11 a share, : together with a brokerage fee of 10 cents a share. His Lordship was of opinion that the plaintiff had conducted the transaction in a very business-like manner. The contract really cons cluded at 3 o'clock on the afternoon of the 31st May, the note of the defendant in the chit book

Will reply" having somewhat disconcerted the plaintiff. There was no doubt that on the morning of that day there was a flush of Pun- jom shares in the market, the result being that the rate declined from $10 in the morning to $9 in the afternoon.

Judgment was therefore given for the plain- tiff for $525 and costs.

13th July.

KESHIR SINGH V. LAWRENCE AND ANOTHER,

by the defendants. Mr. Thompson (of Messrs. Plaintiff sued for $200 on a guarantee given Deacon and Hastings' office) appeared for the plaintiff and Mr. M. J. D, Stephens for the de- fendant.