58
launch under repairs is ready, therefore, please take delivery of same, and send a man to take charge, as my responsibility ceases to-day.
from
Enclose herewith my D/note for repairs done Yours faithfully,
KWONG TUCK CHEONG, per A.J. To Messrs. L. Soulfort and Co.
Accompanying this letter was a bill.. There is no direct evidence to show whether, at the
THE HONGKONG WEEKLY PRESS AND
Monday, 14th January.
IN ORIGINAL JURISDICTION.
BEFORE HIS HONOUR SIR JOHN CARRING.
TON, C.M.G. (CHIEF JUSTICE)..
MAN CHEW TAK V. JOACHIM MALCAMPO
** QUIOJA;
and the defendant is a merchant trading and In this case the plaintiff resides in Hongkong, carrying on business in Amoy. The plaintiff claimed (1) rents and profits of Section C of Hongkong Marine Lot No. 83, from August 1st, 1894, to February 4th, 1897; (b.) $85,000, money lent on equitable mortgage on Section C of Hongkong Marine Lot No. 83; (c.) damages for breach of agreement.
date of that letter, the pinnace had been repaired or not. There is evidence to show that, in August, the engines were in a worse state than they were in April, and that, on or about 18th September and 20th September, the pinnace was not serviceable and that the engines were defective, as they had been in April. It is possible that, during the interval between 5th June and August and September, any repairs duly effected had deteriorated through the engines lying idle. But who was to blame for the engines having lain idle? There is no evidence that the Kwong Tak Cheung had had a private trial before they wrote the letter of 5th June, and, therefore, no evidence on that ground that the repairs had been effected. Their statement that the launch ander repairs is ready' is not evidence of the fact being as stated. Apart from arrange-handed it to him again. ment, the natural course would be that the
Mr. J. J. Francis, Q.C., and Mr. E. H. Sharp (instructed by Messrs, Wilkinson and Grist) appeared for the plaintiff. The defon- dant did not appear.
posed to serving upon the defendant in Amoy a Lee Hing Sze, a trader living in Amoy, de-
Court, Hongkong, on the 14th January. The notice requesting him to attend at the Supreme defendant was very angry and threw the doon- The witness picked it up and
ment away.
Mr. Sharp having road the petition, evidence
in support of the statements contained therein was given.
Chief Justice observed that there was no doubt In giving judgment for the plaintiff the
that a great fraud had been perpetrated.
BEFORE
Tuesday, 15th January,
IN SUMMARY JURISDICTION.
[January 19, 1901.
the materials supplied to him, but in order to make the work as complete as possible for Messrs Stevens and Co, he agreed to go into the details with Mr. Stevens's son. The essential work he had to do was to draw up a balance sheet and a profit and loss account and to write up the books. At Mr. Stevens's request he also made ont a detailed memo. of the House Account, showing an expenditure of $40,000 T. L. Stevens's account to oblige Mr. Stevens. odd. He also made out a special statement of
In reply to an affidavit by Mr. Stevens, wit ness stated that the balance sheet was as com plate as he could make it from the materials and vouchers supplied to him; that if it con- tained errors it was because of the absence of vouchers necessary for him to work upon; and that it carried out the arrangement he had entered into with defendant. He had done
more, in fact, than arranged for.
Witness was cross-examined by Mr. Hays. He did not expect to find Mr Stevens's accounts in good order. Mr. Stevens had given him to understand that Mr. Hall had swindled
until he went into the work whether he had him of $30,000 or $40,000. He could not tell sufficient material to write up the books. He took everything Mr. Stevens gave him, but would have liked more,
Did you consider you were justified in under- taking this work with the material you had before you and thereby earn the very handsome
material coming from a merchant's office in fee of $1,000 P-I naturally assumed that the
Hongkong would be full and sufficient material.
Supposing you had been informed, on reliable authority, that those books were not properly kept or written up, would you have refused to do the work? No, it would not have been on my part to do that. I would not tell whether the books were properly kept until I had com-
HIS HONOUR T. SERCOMBE SMITH pleted my work.
(ACTING PUISNE JUDGE.)
W. H. GASKELL v. G. E. STEVENS,
In this case the plaintiff sought to recover $500, balance of $1,000, fee for writing up the books of the firm of Messrs. George R, Stevens and Co. during the period of Mr. F. W. Hall's
Plaintiff was represented by Mr, K, W. Mounsey (Messrs. Mounsey and Brutton), the defendant by Mr. J. Hays (Mesars. Jolinson, Stokes and Master).
Mr. Mounsey, on the ground that the material issues of the action were raised by the defendant's affidavit, contended that it was for his friend to open the case,
Mr. Hays having replied that the account rendered by Mr. Gaskell was not a good account, it was for the plaintiff to prove his case,
His Lordship said that there was, he under stood, a contract between the parties, and it was for the plaintiff to go into the box and prove that he had carried out the contract to the best of his ability.
repairer or contractor should make a trial trip in the presence of his client; there is, however; no direct evidence that that is the custom. But there is evidence as to the course pursued in this respect between the parties both prior and subsequent to the 5th June, 1900. It is clear that in April and September last, the plaintiffs, at the request of the defendanta, got up steam and made trials in the presence of the defendants. Such action appears to me to indicate that an understanding between the parties was arrived at, subsequent to the mak- ing of the main contract, to the effect that, on demand by the defendants, the plaintiffs were to have a trial trip when the repairs were reported to be executed. In pursuance of this under- standing, Mr. Thermy stated that, between April and August, he had sent his comparadore five or six times to arrange for a trial, that Chui Ng often saw him and asked for pay-management. ment that he always told him that he want- ed a trial with an engineer, and, if the trial were satisfactory, would pay him. In August, by arrangement, a trial was to take place, but steam was not up when Thermy and an engi- neer went on board. Then, on or about the 18th and 20th September, two more trials were held, both of which proved unsatisfactory. Nothing more seems to have passed between the parties, and the launch was sunk in the typhoon of the 10th November last. In my judgment, the defendants were not under any duty to take over the launch, when reported to be repaired, until they had had a trial granted to test the quality of the repairs. On this ground, therefore, the defendants were not affected by the letter of the 5th June, except so Mr. Mounsey opened by explaining that far as it was a notice to them of the repairs hav- the period of Mr. Hall's management of ing been executed and of the necessity of de- the business of Messrs G. R. Stevens and Co. manding a trial trip, which, as I have already extended from 1st April, 1898, to 31st found, they did demand. The state of affairs is December, 1899-twenty-one months in all. then that, on the 10th November, 1900, the re. He proceeded to read letters that had pass- pairs had not been done and no payment was due.ed between the parties-the contract was On that date, the pinnace went to the bottom of contained in those letters. The work was to the harbour whilst she was in the hands of the occupy two months, working night and day, plaintiffs for repairs. It has not been shown and Mr. Gaskell stipulated for a fee of $1,000, that any negligefice on the part of the defen- $500 before commencing and $500 on comple- dants conduced to the foundering of the pin- tion. In the course of one letter, Mr. Gaskell nace and thereby rendered the performance by wrote that the books had been kept in a very the plaintiffs of their part of the contract im careless manner, in another that the loss during possible. In other words, the defendant had the period of Mr. Hall's management was done nothing to render the contract impossible $39,852.66 as compared with a loss of $35,979.85 of performance by the plaintiffs: consequently set out by Mr. O'Gourdin, who had previously the contract was not discharged and the plain- gone into the books and accounts. Other state- tiffs cannot recover even on a quantum meruit. ments were made in Mr. Gaskell's letters bear- Moreover, if the pinnace was lost from no ing upon the condition of certain accounts in default of either party, its destruction would the books. operate as a discharge of the contract, excusing both parties from further performance but not vesting a right of action in either party. If the evidence justified this latter aspect of the case, the plaintiffs would again have no claim for payment. But I abstain from expressing my opinion concerning the circumstance attend. ing the loss of the pinnanos beyond saying that, up to the present, no negligence on either side has been proved. There will be judgement for the defendants, with costs..
William Henry Gaskell, accountant, then gave evidence in support of his claim. In accordance with a request from Mr. Stevens, and to oblige him, he prepared a special state ment of the accounts of the steamers Dagmar and Loyal. They were included in the balance sheet already prepared by plaintiff. Partion lars were given in the special statement. He also obtained from Mr. Hall particulars about a billiard-table account. He might have con- cluded his work by writing up the books from
His Lordship-If the books had been pro- perly kept, there would not have been very much necessity for calling in Mr. Gaskell, and de
Witness-I understood the reason why I was asked to write up the books was that Mr. Hall had swindled Mr. Stevens out of $30,000 or $40,000, and I was called in to find that out.
His Lordship (to Mr. Hays)-You don't allege that anybody could have done better than Mr. Gaskell with the material supplied P
Mr. Hays-I do, my Lord.
I
Witness in reply to other questions, said-I was told by Mr. Stevens that Mr. Hall's ledger was not worth the paper it was written upon, and therefore I made up my own books from the vonchers and accounts supplied to me. understood that Mr. Stevens based his state- ment that the books were not worth the paper on which they were written ou remarks made to him by Mr. O'Gourdin, who had been through the books before me.
Witness was taken in detail through items in the accounts.
G. W. Marshall, manager to G. R. Stevens & Co., gave evidence regarding the accounts, and sought to show that Mr. Gaskell should have made more of the materials at his disposal.
Judgment was reserved.
Wednesday, 16th January,
*
IN ORIGINAL JURISDICTION.
BEFORE HIS HONOUR SIE JOHN CAERING- - TON, C.M.G. (CHIEF JUSTICE).
LI SHEUNG`V, THE WING FUNG. TAI FIRM.:
In this case the plaintiff sued the defendant for recovery of possession of the tenement No. 19 Jervois Street; $500 for mesne profits; and he also claimed costs.
Mr. Slade (instructed by Messrs. Wilkinson and Grist) appeared for the plaintiff, and Mr., Robinson (instructed by Mr. Holmes) for the defendants.
The Chief Justice said When this case was called on for hearing on the 10th inst. Mr. Slade for the plaintif submitted that on the pleadings the plaintiff was entitled to judgment for possession of the house claimed in the suit. It is necessary therefore to consider carefully what is the language of the pleadings and what is their effect.
In his petition the plaintiff alleged that on the 12th March, 1899, he let to the defendants the house No. 19 Jervois Street, in Victoria, at
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