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and on the same day the defendants rendered an account to the plaintiff showing the sale by them for account of the plaintiff of the said shares at $18.50 per share and paid to him the sum of $912.50 as and for the price of the said 50 shares at $18.50 per share less their brokerage $12.50. As a matter of fact the defendants sold the said 50 shares on the said 19th day of November at the price of $18.75 and received therefor $937.50.
6.-On or about the 24th November last the plaintiff instructed the defendants to sell for him at the best price obtainable 50 shares in the said West Point Building Conipany, Limited, at the best price obtainable. The defendants sold the said shares accordingly for the price or sum of $18.75 per share and re- ceived therefor the sum of $937.50 but they accounted to the plaintiff for the sum of $925 only and only paid to the plaintiff the sum of $912.30 being the said sum of $925 less their brokerage.
7-The plaintiff has continued to purchase and sell shares through the defendants' to the 15th March instant in the hope of being able to obtain further direct evidence of fraud, but he has been unable to ascertain the names of the respective buyers and sellers and the true prices at which the said shares have been bought and sold.
S.-On or about the 19th March the plaintiff applied to the defendants for the full account of all the dealings and transactions between them and him in respect of the purchase and sale of shares during the period of their employment as his brokers but the defendants have refused to render to the plaintiff such full or any ac: count whatsoever.
The plaintiff therefore humbly prays :- 1. That an account may be taken of all sales and purchases of shares by the defendants for the plaintiff as his brokers and of all monies received and paid by the defend. ants for or on account of the plaintiff from the 1st day of April, 1896, to the 15th day of March, 1897. 2.-That the defendants may be ordered to pay to the plaintiff such amounts, if any, as upon the taking of such account shall be found to be due from the defendants to the plaintiff with interest on the several amounts from the dates when the same became respectively due and payable. 3. That the plaintiff may have such further and other relief as the nature of the case may require.
The defendants' answer is as follows:- 1-The defendants admit the truth of the allegations contained in paragraphs 1 and 2 of the petition.
on
THE HONGKONG WEEKLY PRESS AND | Limited, and that the 7th November, 1896, the defendants rendered an account to the plaintiff of the sale by them of the said 100 shares at $40 per share and paid to him a sum of $3,950 in respect thereof, being the price of the said shares at $40 per share less their brokerage of 50 cents per share. The defendants deny that they sold the said shares or any part of them either on the 6th day of November, 1896, or on any other date at 841 per share or at any rate except $40 per share. As a matter of fact the plaintiff expressly assented to the sale by the defendants of the said shares at the best price obtainable and the defendants in fact sold the said shares on the 6th day of November, 1896, to one Merwanjce Byramjee Polish walla at the rate of $40 per share and no more, being the rate specified by them in the said account rendered by them to the plaintiff.
2. In answer to paragraph 3 of the petition the defendants admit that the plaintiff has since the 1st day of April, 1896, frequently employed the defendants as share brokers to buy and sell for him shares of various Companies and Banks and that the defendants have bought and sold for the plaintiff for reward to be paid by the plaintiff to the defendants shares to the value of $1000,000 or thereabouts in the whole at divers times and in divers parcels since the 1st day of April. 1896, and that they have furnished to the plaintiff on occasion of each sale or pur- chase an account showing the amount to be re- ceived or paid on the sale or purchase by the plaintiff from or to them. The defendants fur- ther say that the plaintiff has accepted such ac. counts as being true and faithful statements of the transactions of which they professed to be accounts and has settled with the defendants on the basis of such accounts not only up to No- yember last but also up to and including the 15th day of. March; 1897, and the defendants say that the said accounts between themselves and the plaintiff up to and including the said 15th day of March, 1897, which was the most recent date upon which the plaintiff employed the defendants to buy or sell shares on his ac- count, are settled accounts. Prior to the 17th day of March, 1897, the defendants had received no intimation and had not the least suspicion that the plaintiff in any way questioned or doubt ed the correctness of the accounts rendered by them to him.
3. In answer to paragraph 4 of the petition the defendants admit that on or about the 6th November last the plaintiff instructed the defendants to sell 100 shares in the Indo-China Steam Navigation Company,
4. In answer to paragraph 5 of the petition the defendants admit that on the 19th or 20th November last the plaintiff instructed the de- foudants to sell for him 50 shares in the West Point Building Company, Limited, and that on the 19th or 20th November last the defendants rendered, an account to the plaintiff showing the sale by them for account of the plaintiff of the said shares and paid to him the sum of $912.50 as and for the net proceeds of the said 50 shares less their brokerage. The defendants have kept no copy of the said account which was rendered by them to the plaintiff and they do not admit that the contents of the said account are cor- rectly set out in the petition and they crave leave to refer to the said account when produced by the plaintiff. The defendants admit that they sold the said 50 shares on the said 19th day of November last, at the price of $18.75 per share and received therefor $937.50. The defendants, however, say that they had in their hands for sale on the said 19th November last some-shares of the West Point Building Com- pany, Limited, which they were authorized to sell at the price of $18 per share, and that the plaintiff, upon being informed of that fact by the defendants and upon being also informed by the defendants of the fact that they could sell the said shares at so high a rate as $18.75 per share but that they could only sell the said shares at the said rate of $18.75 per share to a broker who would not pay them (the defendants) any commission, agreed to sell the said shares at the rate of $18.75 per share and pay to the defendants -double brokerage upon the said shares, that is to say, to pay the buyer's broker- age as well as his own brokerage as seller, there- by reducing the net proceeds of the said shares to $18.25 per share. The name of the broker to whom the defendants sold the said shares is Isaac Samuel Perry.
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[February 12, 1898.
them with the game object as theretofore, namely, for the purpose of making money by dealing in shares. The defendants cannot say what hope the plaintiff did or did not entertain in continuing to purchase and sell shares(as aforesaid. The defendants deny that the plain- tiff has obtained any evidence whatever of frand either direct or indirect against them or any of them, and they deny that they or any of them have or has been guilty of any frand whatsoever in their dealings or accounts with the plaintiff. The defendants do not admit that the plaintiff has been unable to ascertain the names of the respective buyers and sellers of shares sold and purchased by the defendants on his account. The defendants deny that the plaintiff has been unable to ascertain the true prices at which the said shares have been bought and sold and they say on the contrary that they have regularly and in the ordinary course of business rendered to the plaintiff from time to time accounts showing the true prices at which the said shares have been bought or sold as the case may be.
7.-In answer to paragraph 8 of the petition the defendants admit that the plaintiff applied to them on or about the 19th of March, 1897, for a full account of all dealings and transae. tions between them and him in respect of the purchase and sale of shares during the period The of their employment as his brokers. defendants deny that they have refused to render to the plaintiff such full or any account and they sta on the contrary that the de- fendants have from time to time and in the regular course of their business as sharebrokers rendered to the plaintiff accounts in writing in the usual and customary form of the transac tions entered into by the defendants on behalf of the plaintiff and they further say that such accounts were true and faithful statements of the transactions of which they professed to be accounts, and that the plaintiff accepted such accounts as correct and has settled with the defendants on the basis of such accounts in such a way as to- render such accounts settled accounts. The defendants also say that pre- viously to every transaction relating to the sale and purchase of shares by the defendants for and on account of the plaintiff the plaintiff expressly assented and agreed to the respective prices at which the defendants proposed to sell or purchase such shares.
8.-By way of alternative, and without admit- ting any legal liability whatever in respect of any of the matters alleged or claimed in the petition, the defendants bring info Court in satisfaction generally of the plaintiff's claims the sum of $500, and they say (without admitting that any amounts whatever or any interest whatever are due from them to the plaintiff) that the said sum of $500 is sufficient to cover the total of amounts and the interest: thereon which are claimed in paragraph 2 of the prayer of the Petition.
When
5.-In answer to paragraph 6 of the petition the defendants admit that on or about the 24th November last the plaintiff instructed the de- fendants to sell for him 50 shares in the West Point Building Company, Limited. The de- fendants also admit that they sold the said Mr. Francis explained the facts to the jury. shares for the price or sum of $18.75 per share He said the plaintiff had for many years dealt and received therefor the sum of $937.50 and in shares. Up to the beginning of April, 1896, they admit that they only paid to the plaintiff he dealt with brokers generally, but to a con- the sum of $912.50. The defendants however siderable extent with Mr. G. H. Potts. deny that they accounted to the plaintiff for Mr. Potts joined the firm of Benjamin and the sum of $925 only and say that they had in Kelly plaintiff practically transferred all his their hands for sale on the said 24th November business through Benjamin, Kelly, and Potts, last some shares of the West Point Building and, as had been stated in the pleadings, the Company, Limited, which they were authorised turn-over of his purchases and sales of shares to sell at the price of $18 per share, and that from the 1st April, 1896, to the middle of March,. the plaintiff, upon being informed of that fact 1897, totalled to about a million of dollars. Nearly by the defendants, and upon being also informed all his transactions were for cash and in respect by the defendants of the fact that they could of each transaction an account in the usual sell the said shares it so high a rate as $18.75 form was sent in. Everything went perfectly per share but that they could only sell the said satisfactorily until the 7th November, 1896, shares at the rate of $18.75 per share to à when something occurred which excited Mr. broker who would not pay them (the defendants) Gorham's suspicion. He had instructed Mr. any commissión, agreed to sell the said shares Kelly on the morning of the 6th to sell 100 at the rate of $18.75 per share and to pay to the Indo-China Steamship Company's shares for On the following morning Mr. Kelly defendants double brokerage upon the said him. shares, that is to say, to pay the buyer's broker-reported the sale of those shares at $40 each, age well as his own brokerage as seller, thereby and he incidentally mentioned to Mr. Gorham reducing the net proceeds of tho said shares to that if he had held the shares until the 7th the $18.25 per share. The name of the broker to shares would have sold at $41, Mr. Kelly also whom the defendants sold the said shares is mentioned incidentally that on the previous day he had sold 150 shares at $40 for Shanghai. Isaac Samuel Perry.
The, same day plaintiff met Mr. J. S. Perry, a sharebroker, in the street and Perry told plaintiff that he had purchased 100 Indo- Chinas on the previous day at $41 per share for Shanghai. This attracted plaintiff's attention and on enquiring he was informed by Perry
6. In answer to paragraph 7 of the petition the defendants admit that the plaintiff. has con. tinued to purchase and sell shares through them up to the 15th March. 1897, and the defendants were under the impression that the plaintiff so continued to purchase and sell shares through
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