February 12, 1898.]
150 Indo-Chinas shares, although he might not have mentioned dates.
By His Lordship-Witness was sure he had no hint of any trap being laid for the defendants, Between the 17th and 20th March, 1897, Mr. Benjamin said to witness, “Wonderful! | Gorham, when he wants to buy or sell, never writes. It seems very funny this time. His action lately has been very curious and I should not be surprised if he is the buyer of the 100 Nationals I bought." Witness said, Is be the seller " Benjamin replied, "Yes," and witness said, "Then he is the buyer."
9th February.
Mr. Francis intimated that the plaintiff had found the required documents and also Messrs. Johnson, Stokes, and Master's account.
Plaintiff was then recalled and cross-examined by Mr. Drummond. Witness read one docu- ment as follows:-" 27th November 1896. C. L. Gorham, Esq. Dear Sir.-Please note that we have this day sold under your instructions 150 shares of the Hongkong and Shanghai Banking Corporation for delivery on the 31st December, 1896, at 181 per cent, premium per share. Yours faithfully, Benjamin, Kelly, and Potts, brokers," There were no numbers on
this note. Witness was aware that without any numbers he could not have enforced the contract if the purchaser had repudiated it. He did did not know the name of the principal in that transaction. There was no way of finding out except by asking the brokers, and he did not recollect that he did ask them; he did not think he did.
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Mr. Drummond-You had to trust to them entirely?
Witness-If they had refused to take them up they would not have been taken up by them
Witness read another document from the brokers dated 27th November, carrying forward the sale at 1861 per cent. premium per share to. February, 1897. That was the only paper he had with the exception of a contract from Shanghai, There were no numbers on that contract: Shang- hai contracts did not require numbers. He could not recollect the name of the principal in the transaction. Messrs Johnson, Stokes, and Master's account, which he produced, was exactly the same as that which was produced on Mon- day. That was the only bill he had received
from that firm of solicitors. He still said that
the last charge related to attendance on matters connected with this suit, although it was dated June 18th, or rather there were ditto marks to June 18th. He did not know at first that he had that document; he thought he only had the compradore's order. Witness could not say whether he was asked to look through all his papers in connection with the case. He could not recollect. Mr. Wilkinson putting a question to him in that form. He was asked lately to look for the bill. To the best of his recollection that was within the last fortnight. It did not ocour to him before that to look up the Johnson episode as far as this document was concerned. He did make a search, but until the point was suggested to him by Mr. Wilkinson it did not occur to him to look for the particular papers. He did not know it would be required, but he know of course that he had consulted Mr. Johnson.
Re-examined by Mr. Francis-The first sale paper related to 100 shares he had bought in August and 50 in September; At the end of November, finding it would not be convenient to take up the shares, he sold them, and as he had the same number of shares for delivery in Shanghai he bought the same shares for Febru- ary. He still said that he consulted Mr. John- son about this matter in November, 1896, and he believed, when he was paying the bill, that he was paying for the two previous transactions and that particular one.
B. C. Hurley said he was taking photographs, publishing guide books, and trying other means of earning a living. In November; 1896, plaintiff asked him to purchase 50 West Point shares through Mr. Perry: The trans- action was settled on the 26th November, He took the scrip and deposited it in the Hongkong and Shanghai Bank. He paid for the shares by cheque on the Bank for $950. Plaintiff had arranged with the Bank in regard to the cheque.
CHINA OVERLAND TRADE REPORT.
Cross-examined by Mr. Drummond-He did not recollect that he told Mr. Perry he had a few dollars to invest. He did not have a few dollars to invest. He did not make a memor andum of the transaction, although he thought plaintiff asked him to do so.
Mr. Francis intimated that Mr. Drummond· had saved him the trouble of calling witnesses from the Bank to identify the shares. The defence were prepared to admit that they were the same shares that were sold and pur chased in each of the three transactions.
Cross-examined by Mr. Drummond-Mr. Johnson never mentioned to witness that Gor- ham had consulted him about this particular He first heard the report last January case. that plaintiff had consulted Mr. Johnson. The report came through one of the defendants, who said that plaintiff had told him he had a receipt from Mr. Johnson. Defendants' solicitors ap- plied for a commission to take the evidence of Mr. Kelly in England.
Re-examined-The commission was not exe. cuted at the request of the defendants, who paid the costs.
there were the figures 1896. The date was crossed By his Lordship-On page 50 of the diary out, but it looked like November. The entry know whether it related to the attendance by Mr. was also scratched ont, and witness did not Johnson on Mr. Gorham.
Mr. Francis said the word “November," was quite clear, and he could also make out part of
Benjamin."
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99
whole of this case was made out. When he learned that, he was, he said, dead sure he had been cheated. The statement aroused a strong feeling of suspicion in his mind, and he allowed that strong suspicion to grow into a dead certainty. Was that the man to come here and charge a firm with committing gross fraud? Ought he not in all decency to have taken every step he could to satisfy his mind before he allowed himself to be dead sure and before he made a charge against the defen. dants? He certainly ought to have gone to the Mr. G. C. C. Master, solicitor, said Mr. Joba- defendants and asked them to explain the son was in the colony in November, 1896. apparent discrepancy in the transactions. Witness produced the firm's diary. The entries According to his own statement Mr. Johnson- were made under the names of the clients. The said to him, "Why don't you go and see Ben only entry on the 18th June relating to the jamin, Kelly, and Potts and have it out!" plaintiff referred to advice given to him in He did not do that and his action could not regard to an agreement with Chung Yau. There therefore commend itself to the jury's mind. was no entry relating to the plaintiff in Novem-He refused to do anything which would give ber. Witness did not know that Mr. Johnson the defendants a chance of making an explana- had any other diary. He may have jotted down tion at the moment. For four long months he items on a piece of paper and entered them in went on, as he had described, laying traps to catch the defendants. Counsel submitted the book on the following day.
that the plaintiff did not do that, the statement being utterly inconsistent with his actions. Only a very few days after these particular transactions he went to the defendants and arranged with them to make transactions which would enable him to make a settlement in February. Counsel contended that there was nothing to show that the defendants had been guilty of fraud; it was not likely that they would do anything which would ruin them in their business for the total sum of $125; That was the sole claim made by the plaintiff in this big suit, but he also wished to make an charge of fraud. Did the jury think for one inspection of books and so he brought this moment that the defendants had been guilty of the three cases? If the jury did think so of of deliberate fraud upon the plaintiff in any one
course it would remain for the defendants to go through their case to the very end and satisfy the jury that they had not committed fraud. It was perfectly within the jury's power, if they were now satisfied that the plaintiff had utterly failed to prove the charge of fraud, to say they were so satisfied, and they would be saved from remaining in court several days more and going through a long defence. Counsel could not help feeling that that must bethe impression in the jury's mind. He asked them to consider the matter carefully and to ask themselves if it was really necessary for the defendants to call witnesses and go through a long explanation of everyone of the items. The evidence of the defendants would prove an explanation of every one of the three charges in accordance with the statements, made in their answer. If that was the case it was perfectly competent for the jury to settle the case on the facts as they had already been brought before them. He thought the jury would agree with him that the plaintiff was a very suspicious man, Were the jury satisfied with his conduct in the witness box? Was it on the whole satisfactory Had he proved himself a straightforward, open, and truthful witness in every particular and a man on whose word they could find three men guilty of the grave. charges he brought against them. The jury must have been struck by the fact that the plaintiff had a most remarkable memory, besides being & suspicious gentleman. The words "do not recollect were in nearly every answer he gave in cross-examination. Now and again he remembered bits of conversation-things that would tell greatly in his favour, He told those things in a most graphic way and word for word; but when he dealt with other in- stances of important facts bearing on the case his almost invariable answer was, I do not recollect." Nothing more could be got from him. The defence was that there had been an intermediate sale of these shares. The shares were sold by the defendants on the instructions of the plaintiff to a man named Polishwalla, and Polishwalla re-sold them to the defendants, who in turn told them to Mr. Perry. It was a very common thing in this colony for shares to be sold twice in the same day, not by actual transfer of the scrip, but by contracts. If that happened once in regard to one transaction the same thing explained the other transactions.
His Lordship agreed that " November" could be made ont, and the entry was then passed round to the jury.
Mr. C. D. Wilkinson, solicitor, said he re- ceived the plaintiff's diary before the affidavit of documents was prepared. There was an en- try in the diary of the 20th November. That entry was in the diary when witness first re- ceived it. It was in consequence of that entry and the entry on the 18th that he went and saw Mr. Cobbold.
Cross-examined by Mr. Drummond-Wit ness's clerk made out the affidavit of documents and witness checked it over and found an en- try of the 21st was omitted. Witness could not say why the entry of the 20th was omitted un- less it appeared to him that it related to a trans- action which had nothing to do with this case. That was pure conjecture. The omission was not mentioned to him until Tuesday.
This concluded the case for the plaintiff.' Mr. Drummond then addressed the jury on behalf of the defendants, He asked them to bear in mind some of the main issues involved
in the case. The starting point of the case was the 6th November, 1896. The jury had to look at the position of the plaintiff. He was a man who, according to his own statement, was in the habit of speculating largely, and he might have had trouble and anxiety in connection with the large volume of business he was doing. It was not uncommon for a man who had trouble and anxiety to blame the unfortunate broker whom he employed. They had it. that the plaintiff was not well disposed towards Mr. Potta. Plaintiff evidently possessed a suspicious mind and would suspect any man of a grave dereliction of duty, and it was in consequence of that characteristic that this case had gone the length it bad. On the 6th November he asked Kelly or Potts to sell for him 100 Indo- China shares at the best price obtainable. He was told that $40 was the best price and he received an account at that rate. So far noth. ing could have raised his suspicion. On the next day he met Mr. Perry. Plaintiff had stated that Mr. Perry told him he had sold 150 Indo Chinas for the North at $41 on the previous day. Mr. Perry, in his evidence, had said that it was utterly impossible that he could have said he sold 150 and that he never did say that However, upon that slender foundation the
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His Lordship-If the defendants wish to suggest that, you ought to open with that.
Mr. Drummond The answer discloses the name of Polishwalla as the purchaser,
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