?
February 26, 1898.]
CHINA OVERLAND TRADE REPORT.
strictly according to the evidence and according Next, they make another appeal to him to increase to their conscience, without regard to the his donation, in order that the building might be ulterior consequences affecting either the plain-made larger and more worthy of the community. tiff or the defendants.
The jury retired at 6.30 and returned at five minutes past seven. They found by a majority of four to three that the sale of the shares to Polishwalla on the 6th Novomber was a bona fide one, and that plaintiff did assent to pay double brokerage in respect of the West Point shares sold on the 20th November and also those sold on the 24th November.
His Lordship Gentlemen, your finding by a majority of four to three is for the defendants on all three questions ?
i
The foreman of the jury-Yes. Mr. Drummond-I presume costs will follow, my Lord?
His Lordship-Have you anything to say about that Mr. Francis ?
Mr. Francis asked his Lordship to con. sider whether the defendants had not neces sitated the proceedings in the action, and whether it was not a case in which, all things considered, each party should pay its own costs. The defendants had obtained a verdict by a bare majority of one. The suit was simply the result of the defendants' refusal to do in the first instance what they had promised -to render to the plaintiff a statement of his account a perfectly reasonable demand under circumstances which were known at the time.
His Lordship said it would require a strong case to deprive the defendants of their costs. If any authoriti s could be cited he would allow Mr. Francis to argue the point in chambers.
M. Francis said he would like to have an opportunity of considering the question.
His Lordship gave counsel leave to argue the question of costs in chambers to-morrow 'morning, at eleven o'clock.
D. A. GUBBAY AND OTHERS V. E, K, BELILIOS.
The following is the concluding portion of the judgment in this case, the first portion having been published last week :-
66
On the 15th May, 1896, some 40 members of the community signed a document in which they stated that they were agreeable that Messrs. D. R. Sassoon, M. D. Ezekiel, E. R. Belilios, and A. J. David should become trus- tees and receive the whole of the property, furni ture, etc., and any available fund belonging to the present synagogue in this colony." On the same date the following document was excuted :-
Hongkong, 15th May, 1896.
At the request of our community of this co- lony, we the undersigned are willing to become trustees and to receive the whole of the pro- perty and any available fund belonging to the present synagogue.
matters.
D. R. SASSOON.
E. R. BELILIOS. A. J. DAVID.
·147
to ask if you would kindly put up to publio auction sale at the same time the piece of ground laying to the south of the above lot and the MacDonnel Road, the boundaries of whith would be somewhat as follows:
"North.-The South boundary of the ground
applied for on the 28th April.
(4
CE
South. The MacDonnel Road, "East.--Government ground nearTramway. West. Do do Stone Nullah." The two lots for which application is made in this letter on behalf of the defendant make up, together with Lot No. 1,381, the block of land lying between Kennedy Road on the North and- MacDonnell Road on the South and between the Tramway on the East and Garden Road on the West.
•
This letter is undoubtedly of considerable importance in determining the position ocen. pied by the community and the defendant re- spectively with regard to the land applied for. It was drafted by Mr. Silas and it is signed by the defendant and two other representatives weeks after the date of Mr. Moses' letter to Mr. of the community. It was written some three Silas, informing him of the application for the land. Yet it contains no reference whatever to that application. The receiver of the letter could form no idea that a site had been actually applied for; indeed the wording of it would lead him to adopt the contrary conclusion. It is true that Messrs. Leigh and Orange's report A good deal of evidence was placed before the of the 19th October, 1895, was enclosed in the Court with reference to the circumstances con- letter. This fact indirectly intimates to Mr. nected with the making of this application. It! J. E. Sassoon that it was proposed to place the was alleged on the part of the plaintiffs that Mr. synagogue on the Kennedy Road site. But Danby, on the 16th June, 1896, while at the what was the specific recommendation of that spot, made an offer to Mr. C. P. Chater, the report with respect to this site? Not that managing director of the Hongkong Land In- Lots Nos. 1.216 and 1,217 should be applied vestment and Agency Company, Limited,-who for, but a smaller lot, containing an area of had spoken favourably of the two lots in ques- 33,000 square feet, which would be " large for the purpose
'amplytion, to apply for the lots for the Company, and that is, an area some 10,000 square feet less than that of the Messrs. Palmer and Turner would so apply, be
that, when Mr. Chater informed him that. combined lots and some 13,000 square feet said he must take care of himself and would less than that of lot No. 1,381. The inference advise the defendant to apply. from these facts is, in my judgment, more con.
Mr. A. S. sistent with the defendant's contention that he Company, were called to prove these allegations. Hooper, and Mr. M. S. Northcote, officers of the applied for Lot No. 1,381 for himself with the Mr. Chater was not called as a witness. On intention of letting the community have as much as was required for the synagogue than denied the correctness of these statements, and the other hand Mr. Danby in cross-examination with the contention of the plaintiffs that he affirmed that on the day in question be “told applied for it on their behalf and as their agent. Mr. Chater that the defendant had told him to Mr. Cooper replied to Mr. Danby's letter of apply for the site to build a house for him. application as follows:-
self that "Mr. Chater asked him if he had actually applied," and he said he had not. The defendant and Mr. Danby both say that the de- fendant had had the two upper lots in his mind and had spoken about them to Mr. Danby at the time of or shortly after the making of the application for the lower lot. The defendant says he gave Mr. Danby instructions to apply for the two upper lots soon after the applica- tion for the lower lot was made. But it would seem that he is mistaken in this statement, for Mr. Danby puts the time about the middle of June, 1896, and his own letter, to which I will immediately refer, puts it about the beginning of June.
Public Works Office, Hongkong, 12th June, 1896. Sir,-In reply to your letter of the 28th April, I have the honour to inform you that His Excellency the Governor has approved of the land between the Tramway and Albany Nullah being put up to auction, subject to the following conditions, viz. :-
Term of lease 999 years. Premium at the rate of 15 cents per square
foot.
Annual Crown rent at the rate of $327 per
acre.
A sum not less than $12,000 to be expended upon rateable improvements within 18 months of the date of sale.
Some controversy took place between the Company and the defendant with regard to the Only buildings of the class known as European priority of their respective claims to have these dwelling houses to be erected on the lot.
two lots put up, and several letters on the sub- The boundaries to be set out by the Director.ject passed between Mr. J. J. Bell Irving, the of Public Works.
I shall be obliged if you will be so good as to inform me if you accept the above conditions. I have the honour to be, Sir, your most obedient servant,
Chairman of the Company, and the defendant. In the defendant's letter of the 31st July, 1896, there occurs the following passage" Mr. Danby never recommended me to apply for the land; it was purely and solely my own idea. I FRANCIS A. COOPER, contemplated buying, it as early as April last. Mr. D. R. Sassoon was at that time the senior
Director of Public Works.
I was unaware of the conversation Mr. Chater "resident partner of Messrs. David Sassoon, Sons,
The condition as to the character of the had with Mr. Danby until the former informed & Co. Mr. Ezekiel apparently did not sign buildings to be erected on the lot was relied me of it in the Club on Monday evening last (27th.). because of his connexion with Messrs. E.D. Sas-apon, both in the defendant's answer and at the For several years past, whenever I happened soon & Co.. It will be observed that in these hearing, as precluding the erection of such a
to be walking on Kennedy Road, it struck me documents no mention is made of the proposed building as a synagogue. But I think there is that whoever bought the mutilated site must of new synagogue or of its site, although no doubt nothing in this point, for the reasons, first, that, necessity buy the land above it, so that the the appointment was connected with both these assuming the application to have been really upper and lower sites may be thrown into one made for the community, the restriction would and two or three terraces prepared for the pur- no doubt have been readily relaxed by the Go-pose of building villas thereon. About the end vernment so as to admit of the erection, of a of April I applied to the Government to put up synagogue, and, secondly, rn the defendant's for sale the ground in question.. At the same own showing, this relaxation would have been time I told Mr. Danby that some day in necessary in respect of that part of the lot on future I would instruct bim to buy for me the which he intended the synagogue to be placed.site overlooking it. Then the object was to
On the same day, namely, the 12th June, 1896, Mr. Danby wrote to Mr. Cooper to say that he had seen his client and he was prepared to agree to all the conditions men- tioned in inquired how soon the lot could be advertised Mr. Cooper's letter. He also for sale. It is worthy of note that this accept ance of the conditions was signified without any reference on the pc'at being made by the defendant to the representatives of the com- munity.
On the 20th May, 1896, Messrs. D. R. Sas. soon and A. J. David and the defendant wrote to Mr. J. E. Sassoon informing him of their appointment as trustees, "together with his representative," and asking that the existing synagogue and his promised donation of $5,000 might be handed to them. Then there occurs the following paragraph:-
"It is the intention of the community to sell the old property, and with the proceeds thereof plus your grant of $5,000 to buy a suitable site ind build upon it a synagogue and call it Ohel Lea.,' The enclosed copy of report of the architects, Messrs. Leigh and Orange, will show the estimated cost of the ground and buildings."
Then they suggested that, "in order to avoid unnecessary delay which might interfere with the favourable opportunity they had now of putting through the business, they would be obliged if he would wire to his firm the word Synagogue,' from which they would understand that he was agreeable, and that they should proceed with the work at once.'
19
Mr. Cooper a letter of which the first paragraph On the 18th June, 1896, Mr. Danby wrote to is as follows:----
56
Adverting to my letter of the 28th April last, applying for the piece of ground on Kennedy Road between the Tramway and the Nullah near Garden Road, I am now requested by my client
get the Jewish community to build a synagogue there. Sometime in the latter part of May it came to my ears that some influential members of our community were averse to have a to me that I should be the purchaser of that synagogue on that ground. It then occurred property. Itlen, about the beginning of Jude, asked Mr. Dai.hy to apply for the high land in question."
The expression "mutilated site" used in this letter is said to refer to Lot No. 1,381, which Works Department for quarrying purposes. has been a good deal broken up by the Public
There are one or two other difficulties of inter- pretation which I will refer to a little later on, when I come to consider the hearing of this letter on the main transaction, name; the sp- plication for and purchase of Lot No. 1,881,
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