236
THE HONGKONG WEEKLY PRESS AND
In other words, that they are merely indents. that before they became perfected, contracts arrival and notification of arrival were essential features. That being my view, it follows that acceptance of a portion of the goods and payment of a portion of the money is a complete ratification. There is no dispute as to the amount of damages, so that there will be judg- ment for $1,000 and costs.
20th September.
IN SUMMARY JURISDICTION.
[September 23, 1897.
afraid as the first defendant was the owner of two houses which were already charged in favour of the firm of which he (first was compradore. The plaintiff defendant) seems to have made some inquiries at the Land Office as to these houses and even- tually the three promissory notes sued on were, according to the plaintiff, on January 20th, 1897, signed by second defendant as principal and first defendant as guarantor. These promissory notes are said to have been made out by second defendant and they also purport to contain a charge on the two houses in question as a collateral security. They are also signed by
BEFORE MR. A. G. WISE (PUISNE JUDGE.) the first defendant at the request of the plain-
CHENG JU TING V. CHUN YAM AND MA PAK TO.
In this case plaintiff, who is a proprietor of a sugar shop. brought three actions against Chan Yam, compradore to Messrs. Gilman and
Co., and Ma Pak To, broker, to recover sums
arranged between the plaintiffs and defendants that as the market had fallen the plaintiffs should hold over the balance of the matches until March, 1897; that the defendants should pay to the plaintiffs the sum of $1,000 on the general account and this sum was duly paid. In March, 1897, however, the defendants would not take deliver of the balance of the matches, and the matches were properly sold by the plaintiffs, the nett proceeds of the sale showing a balance against the defendants of $1,791.21, reduced, as I have said before, to $1,000 for the purpose of bringing this suit in this branch of the Court. Such are the facts of the case, and it cannot be denied that the defendants are entitled to their strict legal rights and nothing more. It is clear that they are trying to wriggle out of their legal liabilities on a purely technical plea simply be- cause the market has gone against them. I am happy to say this course of conduct is exceed- ingly rare amongst Chinese merchants, who, as far as my experience goes, face their losses to the bitter end. For the plaintiff's Mr. Francis contended that exhibits 1 and 2 were not contracts, and that the two docu- ments comprised in each exhibit were not analogous to bought and sold notes, and that one was simply an order aud the other a copy of it-in fact, as I understand it, that each exhibit was merely an indent. He further con- tended that, if it was necessary to hold that there was a contract, the portion of exhibits 1 and 2 retained by the plaintiffs formed complete However, I do not agree with that view, as, in my opinion, both papers in each exhibit must stand or fall together; in other words, that they were in the nature of a contract or that they were not. Mr. Slade, for the defendants, argued that exhibits 1 and 2 were intended for contracts and in the nature of bought and sold notes, and that being so, the variations as to description and time between the documents were material, and being material that the contracts were void. He further argued that if the contracts were void on the above grounds, the subsequent That he entered this in a small book produced with second defendant for $30 and $70 respec-
due on separate promissory notes, the first being for $600, the second $800, and the third $900. Plaintiff also sned for interest on the notes.
Mr. J. F. Reece appeared for the plaintiff. Mr. J. J. Francis, Q.C. (instructed by Mr. Dennys) for the first defendant, and Mr. Wilkinson for the second defendant.
The cases were by consent beard together, evidence being given on the 14th and 15th inst.
His Lordship delivered the following judg.
tiff by the name of Chan Yam and not Chan Pak Sbang as before. The plaintiff ex- plains this by saying that the first defeudant had signed the memorial at the Land office as Chan Yam, and as the promissory notes con- tained the charge above referred to be, the plaintiff, thought it better that that name should be used. He also states that on the signing of the new notes the old outstanding ones were handed over to the defendants. The new notes are for sums amounting in all to $2,300, the extra $50 being for interest unpaid on the old notes. An entry of this new transaction was also made in exhibit 2 and the plaintiff alleges that nothing has been paid on these new notes either on account of principal or interest, which is rather singular seeing that interest was admitted to have been paid with a certain amount of
contracts as being signed by both parties.nient.-These are three suits on three promis- \ regularity up to January 29th, 1897. On July
acceptance of a portion of the goods and the pay. ment of $1,000 was no ratification, as the goods were accepted and the payment made under the mistaken assumption that the contracts were binding; and he quoted several cases in support of his agreement (Sievewright v. Archibald, 17 Ad. & Ell. 103, Grant r. Fletcher, 5 Bam, & Cress. 436. Gregson v. Ruck, 4 Ad. & Ell. 787). I am of opinion that supposing exhibits 1 and 2 can be held to have the effect of contructs, the variance between the several documents was material and that the contracts were void, and that in such case the subsequent acceptance and payment under a mistaken assumption form no ratification. Mr. Slade further contended that even if his argument failed, yet that with regard to the 200 cases his clients would only be hable for 14, as it was admitted that only bore the indent No. 8,652. In other words, that the goods bearing that number were earmarked and allo- cated to the defendants immediately on the chop. ping and signature of exhibit 2. However, I do not agree with this argument, as I think the indent number is merely a reference number, and that the plaintiffs were entitled to tender any goods provided they agreed with the conditions as to time, quality, and description. It seems, therefore, to me that the question is-What is the effect of the documents comprised in exhibits 1 and 2? Are they binding contructs or are they indents or orders? Now an indent for goods to arrive is not a contract by itself. It may become a contract either on receipt of tele- graphic acceptance from home or on arrival and notification of arrival of the goods. An indent, too, so far as my experience goes, is usually one document; here there are two. and I must say it seems to me that this is the origin of the whole dispute. If there had only been one docnment, the defendants of course could not not have set up variance, but owing to the plain- tiffs having drawn them up es they have, also having made alterations in some documents and in others, they have given the defendants an opportunity of endeavouring to avoid their
are Now what these ordinary liabilities. "documents? It seems that, in spite of their being, so to speak, in duplicate, yet in view of the olanse as to non-arrival that I have quoted above they cannot be considered (even if there were no variations) completed contracts on March 13, 1896, and March 17, 1896, respectively, and
sory notes dated January 29th, 1897, to recover the sums of $600, 8800, and $900. During the course of the hearing of suit 930 it was arranged that, the evidence being the same, all three suits should be heard together. The plaintiff's story is as follows: Helent a sum of 8600) to one Ma Pak To isecond defendant) and received a promissory note for that amount payable in a year's time, signed by second defendant as principal and Li Ut Tin and first defendant by the name of Chan Pak Shang as guarantors;
(exhibit 1) and that when that book
was
29th. 1897, acting under instructions from the plaintiff, Mr. Holmes wrote to the first defen- dant demanding payment of $2,300 and interest due on his promissory note, and threatened legal then states that he himself saw the defendants proceedings in case of non-payment. Plaintiff about the end of August, 1897, and demanded payment, and that they then admitted their indebtedness, but as he received nothing he commenced these proceedings. The plaintiff also stated that he had two other transactions
tively which, however, had been settled, but he
full he copied the entry into another book totally denied ever having lent a sum of 8500 at produced (exhibit 2), and that interest was
this loan up to September any time to either of the defendants, and when duly paid on
a promissory note (exhibit 12) dated June 2nd, 14th. 1896, and that the principal was still due on January 29th, 1897, the date of the promissory1896, purporting to secure a loan from him to the potes sued upon. Again on February 4th, 1896, be lent the second defendant $400 and received a promissory note from him for that amount, payable in four months, signed by the second defendent as principal and by the first defend- ant (Ckan Pak Shang) as guarantor. This loan was also entered in exhibit 1 and the plaintiff alleges that interest was duly paid on it for the four mouths, up to June 2nd. 1896. That then the note was renewed for one for a similar demand and signed as amount payable ou before, and that interest was duly paid on the new note up to January 29th. 1897, at which date the principal was still due and that au entry of this new note was made in exhibit 2. Again on June 9th. 1896, he lent the second defendant $200 and received a promissory note from him for that amount signed as the last note. This transaction was entered in exhibit 2 and interest was duly paid up to January 29th, 1897, when the principal was still owing. Again on September 8th, 1896, he lent the second de- fendant $750 and received a promissory note sigued as before for that amount. He shows an entry of this transaction in exhibit 2, also entries of payment of interest up to December 6th, 1896, and states that the principal was still due on some arrears of | January 29th, 1897, with
Again on November 21st, 1896, he interest lent the second defendant $300 and received a before for that
|
promissory note signe as
This amount also appears to have amount. been entered in exhibit 2 and interest is alleged to have been duly paid up to January 29th, 1897, on which date the principal was still due. Thus it will be seen that on January 29th, 1897. according to the plaintiff's story there were five promissory notes outstanding for sums amounting altogether to 82,250 with arrears of It may be men- interest amounting to $98. tioned here that the plaintiff states that all the notes were prepared by second defendant and all the interest paid by him. The story goes on that a few days before January 29th, 1897, the plaintiff began to press for payment and that second defendant told him not to be
fendants of $500 was shewn to him he denied
in second defendant's handwriting. In connec- all knowledge of it and stated that it was not
tion with this fact it must be noted that two letters were put in and admitted by the plaintiff, dated January 7th and 25th. 1897, respectively (only a short time before the date of the note sued upon) and addressed in the first case to the second defendant and in the second to both de- fendants, in which the plaintiff demanded re- payment from the defendauts of a principal sum of $500. It will be seen later on that these let- ters are important. On this point the plaintiff exclains that he only demanded 8500 at the sug- gestion of the second defendant, as he was afraid that first defendant would not be able to pay
the whole amount, and yet it will be remembered that on January 29th, 1897 (a few days after). he was willing to take new notes for $2,300 and Angust, 1897. With reference also to exhibit be even states that he was willing to renew in 12, although the plaintiff himself totally denied knowledge of it, yet a suggested explanation of the existence was set up in the cross- defendants by the examination of the wanted to renew their promissory note of plaintiff's solicitor and that the defendants February 4th, 1896, payable in four months, and to borrow an extra $IUO and so that on June 2nd, 1896 (the date at which it was alleged the $100 note was renewed), the second defen- dant brought exhibit 12 already made out, but that he, the plaintiff, had not $100 at the time to lend and refused to renew for more than $400 This suggested explanation is surely inconsistent with plaintiff's denial of all know- was in second defendant's writing, though he ledge of the note and his absolute denial that it
first defendant, and it must also be noted that admits that one signature resembled that of the on June 9th, 1896 (seven days later), he was able, ou his own statement, to lend the defend- ants $200. With reference to the books (exhibit 1 and 2) produced by the plaintiff objection was taken to them as being inadmissible in evidence and there is no doubt that they were kept in a
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