418
would be of serious consequence if we were to hold that every defect in the recipient vessel would entitle a purchaser to avoid his contract for the commodity contained in it.”
In the present transaction it was beer in bottles in cases that was sold, not cases holding bottles containing beer. The cases were a mere adjunct; there was no express condition that the cases should be new or intact or not soiled. and the law does not imply such a condition. Had the buyer liked, he could have protected himself by stipulating concerning the condition of the cases: he neglected to tako that precan- | tion and must pay the price of the goods, viz. $520 as well as the plaintiffs' costs of suit.
Mr. Bowley was for the plaintiffs, and Mr. Brutton for the defendant.
IN ORIGINAL JURISDICTION. BEFORE HIS HONOUR SIR JOHN CARRING. TON. C.M.G., (CHIEF JUSTICE) AND A SPECIAL JURY.
CHIU WAR V. CHUE KAN.
In this case the plaintiff is a trader residing at 54, Staunton Street, and the defendant a clerk in the employ of Messrs. Deacon and Hastings, solicitors. It is a claim for the specific per- formance of an agreement, the defendant coun- terclaiming for $6,000 deposited by him with the plaintiff.
Mr. J. J. Francis. Q.C. (instructed by Messrs. Wilkinson and Grist) appeared for the plaintiff and Mr. E. H. Sharp (instructed by Messrs. Deacon and Hastings) for the defen- dant.
The special jurors were Messrs. R. G. Shewan (foreman). A Haupt, P. Jordan, S. Hancock. J. S. Van Buren, G. Stewart, aud J. M. Beattie.
On the application of Mr. Shewan, it was de- cided to allow each juror $10 a day during the hearing of the case.
|
of an
|
[November 24, 1900.
This point was argued for some time. His Lordship expressed the opinion that the pleadings wore capable of either interpretation -that the misdescnption-was wilful and de- liberate or that it was a more mistako,
Mr. Francis contended that in view of his Lordship's ruling the burden of proof was en- tirely on his friend in respect to the mistake.
His Lordship-That he should begin ? Mr. Francis--That ho should begin. His Lordship agreed; and Mr. Sharp offered no objection.
to the
+
THE HONGKONG WEEKLY PRESS AND
good title of the said premises. The defondant mado repeated applications to the plaintiff for the said map or plan. but none was over shown to him until the 26th November, and the plaintiff had not as yet shown any title to the said premises. Ou or about the 19th September, during the negotiations for the agreement, plain. tiff called upon the defendant at Deacon and Hastings' office and gave him a written memo. randum purporting to show the measurements of the said promises. Subsequently, and before the signing of the said agreement, the plaintiff again called upon the defendant and informed Mr. Sharp said he thought the jury would him that the said measurements were under- find in respect of most of the facts in the case stated, and gave him a second written memoran- that the two sides were agreed. There was very dum which he said contained the exact measure- little divergence between the story they ments. On the 29th September an engrossment would hear from the plaintiff and the story indenture of assignment of the said they would hear from the defendant in regard premises made between Creasy Ewons of the to the main facts of the caso. Such divergences the defendant of the third part, with a figured The plaintiff, who was a land broker in Hong- first part, the plaintiff of the second part, and as there were were of course of vital importance. plan anuaxed. was handed to the defendant | kong, had frequently approached the defendant. From the said plan and from further in- who had command of a little money. The parties vestigation which he thereupon made, ho were in a Chinese sonse related to one another. discovered that the said measurements pre- That was to say they called one another uncle viously given to him by the plaintiff had been and nephew, they being from the same district. greatly exaggerated and the premises falsely The plaintiff was a very senior man to the de- described by the plaintiff in essential parti- fendant. About the middle of September of culars. Such misrepresentations operated to last year the plaintiff went to see the defendant the serious prejudice of the defendant, who there- at the office of Messrs. Deacon and Hastings by was substantially deceived and misled, and regarding the particular investment to which the was induced to enter into such an agreement attention of the jury would be directed. The which he would not have otherwise done. In plaintiff put it before the defendant without consequence of the plaintiff's misrepresenta- any particular improprioty that it would be tions the defendant declined to complete the pur- a very good investment if he would purchase chase of the said premises and demanded that this property for 860,000. The plaintiff gave the plaintiff should return to the defendant the sum of $6.00 paid as bargain money. The porting to contain the dimensions of the pro- a written memorandum pur- defendant plaintiff had not returned the said deposit or perty. It was in the plaintiff's own hand. bargain money, and therefore the defendant writing, and the plaintiff admitted it. Sub- claimed leave to counterclaim. The defendant sequently the plaintiff gave the defendant had no knowledge of the present value of the 11 second memorandum. This was not premises, and therefore did not admit the allega- written by the plaintiff, who denied all Mr. Francis read the pleadings in the case. tions on the point. Continuing, Mr. Francis knowledge of it. The second memorandum, In his petition the plaintiff said that by agree. said that on the same day the defendant coun- however, did not differ ment dated the 26th day of September. 1899, terclaimed and sent in his counterclaim.
very materially In from the first, but the difference between the the defendant agreed with the plaintiff for regard to his
counterclaim the defendant measuremonts in the memoranda and the actual the purchase by the defendant from the plain- said that on the 20th of September. 1999, measurements was material, being 13 or 14 per tiff of a piece or parcel of land situate
the defendant paid the sum of $6,000 bar-cent. The defendant asked the plaintiff to let in Victoria and intended to be registered in the gain money. The defendant subsequently dis him see the plan. The plaintiff went away and Land Office as sections 31. 32. 33, 34, 35, 36, 37, covered that the property was materially mis- returned in about an hour saying that he could 38, 39, and 40, of Murine Lot 55, with the mes.
described and declined to complete the purchase.not bring the plan but that he had got the figures suages and tenements and buildings then stand and therefore counterclaimed for this 86000 with from the plan, and these figures were put in ing thereon and known as houses Nos. 18, 20, interest at the rate of 8 per cent. from the 26th the second memorandum. "About the middle 22, 24, 26, 28, 30, 32, 34, and 36, Gilman's Bazaar. September to date of judgment. From further of November the defendant wished to leave the for the residue of a term created by a crown documents submitted by Mr. Francis, it ap- colony and to close all outstanding and un- lease of the said Marine Lot No. 55, for $60.000,peared that the plaintiff denied that he at any completed transactions. He wished to raise whereof $6,000 of which was paid on account on
time gave the defendant a second memorandum money to start business at Manila. At that the date of the signing of the agreement. It purporting to give more exact ineasurements time the defendant did not know anything was further agreed that the plaintiff should at than the first memorandum. The plaintiff about this misdescription or that he had any his own expense make a good title to the pre-
denied that the measurements given in the legal right to rescind the contract. The defen- mises, that the purchase and sale should be com.
memorandum were greatly exaggerated and dant certainly did in the middle of November pleted on the 29th of November, 1899, and that that the descriptions given by the plaintiff ask to be allowed to compensate the plaintiff for the balance of the purchase money should be then to the defendant at any time were false any loss which he had suffered by letting him paid. and that the plaintiff should thereupon and that the defendant was in any way off his bargain altogether. The plaintiff de- execute a good and valid assignment of the prejudiced or misled by the memorandum. The clined to let the defendant off his bargain, and premises to the defendant. By agreement be defondant was personally acquainted with the from the 21st November to the 29th November tween the plaintiff and the defendant the dite of
ten houses in question and made a personal the defendant was occupied in making a finan- completion is subsequently postponed to the inspection of them. The plaintiff denied that cial arrangement to complete the contract, 30th November. The plaintiff was ready and
it was in consequence of any misrepresentation which he had no doubt he was obliged to do. willing on the 30th November. 1899, to execute
or misdescription of the plaintiff that defendant On the 29th November the assignment which a good and valid assignment of the premises to refused to complete the purchase, but that the parties were to execute was handed to the the defendant. but the defendant refused to
the defendant declined to complete because defendant, who said. he wished to get some in- complete the purchase or to pay over to the of the fall in the value of land and houses. dependent solicitor-that was to say his own firm- plaintiff the balance-$56,000-of the purchase On the other hand the defendant contended of solicitors. Deacon and Hastings--to peruse the money. The premises were now of the value that he repeatedly asked the plaintiff to take assignment to see that it was in order, The of $45,000 only, and the plaintiff had lost him personally to inspect the property in assignment, or the draft of it, was sent to a sum of $15,000, and his costs. charges, question, but that the plaintiff always shirked Deacon and Hastings' office with a plan annex. and expenses of and in connection with the said
such inspection under the pretext that as the ed. Then for the first time the defendant agreement. The plaintiff therefore prayed that houses were used as family houses it was difficult discovered that the measurements in the the defendant might be ordered to specifically to arrange for an inspection. Continuing, Mr. memoranda were not correct. He put the perform the said agreement to purchase the Francis said the one particular issue of fact he whole thing before Mr. Deacon, who advised said piece or parcel of land and premises and to would ask leave to call attention to in the first him to rescind the contract, which he promptly pay to plaintiff the balance of $56,000 of the instance was the issue of misdescription or non- did. Since then nothing had happened in the purchase money with interest thereon at S permisdescription. It was charged against them in matter which he need draw attention to. A cent per annum from the 30th November, 1899, until the date of the judgment, or in the alter- natire that the defendant should be ordered to pay to the plaintiff $15,450, with interest thereon at the rate of 8 per cent per annum from the date of writ to the date of judg ment. In his answer the defendant admit ted the allegations contained in the first five paragraphs of the petitio, except ing the allegation that a map or plan of the premises was shown to him on or before the signing of the agreement, and save the allega. tion in paragraph 5 that the plaintiff made a
|
the defendant's answer that they deliberately and falsely, knowing that what they were doing, what they were saying, and what they were representing was utterly untrue-that they re- presented to the defendant that the property was of a much more considerable area than it really turned out to be.
Mr. Sharp, interrupting, said that Mr. Francis misrepresented the case. They did not suggest for a moment that when these memoranda were given by the plaintiff to the defendant the plain- tiff had the slightest idea that the statements
contained therein were not true.
|
*
very significant fact was this-that directly this error was discovered the plaintiff came over to the office and was taken into the presence of Mr. Deacon. He was shown the figures in the memoranda and asked if he could explain them. The plaintiff's reply was:
If any mistake has been made I must make it right." What he meant by that remark he did not know, but there was not the slightest sug. gestion on the part of the plaintiff at that time that this second memorandum had not been given by the plaintiff to the defendant.
The defendant was then placed in the witness
No comments yet.
Private notes are available after approval.