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April 19, 1901.
THE HONGKONG WEEKLY PRESS AND
and sufficient in point of form, had specific | in writing to the plaintiff their letter of the 20th authority from the defendant to write and sin October they acted on this view. I am of opin- ion that this view was erroneous and that, in writing the letter, they had no authority to bind the defendant by an ag eement that “the terms of payment were to be 10 per cent, cash and the remainder in six months from date." - "It is curious to observe that these words do not ap pear in the body of the letter, but are contained in a postscript. I should be inclined to inter pret this as a sign of haste in the writing of the letter.
sent.
defendant, and that you cannot gather who the vendor is from the auction form of
particulars which are suf-it. contractor, ficiently referred to for identification in the offer. But the offer does contain the names of the contracting parties. The offer is to Frank Jolly & Co. (the auctioneers), and I think it makes no difference that the offer is made to them as agents for au undisclosed principal. For the purpose of satisfying the Statute of Frands it appears to me sufficient, so far as par- ties are concerned, that the written contract should show who the contracting parties are, although they or one of them may be agents or agent for others, and it makes no difference whether you can gather the fact of agency from the written document or not. Who the princi- pals are may be proved by parol. That is well settled."
In the case at bar the position of the parties is different, as the vendor is sought to be made liable through the act of his agents, but this difference does not affect the applicability of the above quoted observations of Romer, J. It may also be added that there is the less merit in this objection of the defendant in the present case in that it is clear that the negotiations for the sale and purchase of the Lot were carried on with express knowledge on both sides of the fact, that the defendant was the real vendor.
Mr. Sharp sought to impeach the authority of Filby v. Hounsell as regards the present case by saying that it was the case of an auc- tioneer who by custom acts as agent for both parties. This, however, does not seem to be 80, for the transaction took place after the auction was over. In Mews v. Carr, 26 L. J. Ex. 39, Pollock, C.B., said-at p. 40:-"The sale in this case, which took place after the auction was over, must be considered to be an ordinary sale.
Without doubt the auctioneer must be considered as the agent for both parties; but when the sale is at au end that rule does not apply." I think Filby v. Hounsell is a clear authority in favour of the plantiff.
“Mr. Newell, 32 sacks cutlasses at 398., 280 lbs., to wait orders.
In
were
The answer to the third issue must therefore be in the negative, that is, in favour of the de- fendant.
next issue raisée the question \ The
whether Kinghorn and Macdonald, in writing to the plaintiff their letter of the 20th October, bona fide believed that authority from the defendant to write it was conveyed by their telegram to the defendant of the 19th October and the defendant's telegram in reply of the 20th October. I see no cause to doubt that the answer to this issue must be in the affirmative. I can discover no reason in the evidence before me for questioning the good faith of Kinghorn and Macdonald throughout this transaction.
The two telegrams to which reference has just been made must be read in the light of the circumstances in which they were written and despatched. Let us consider
had!
happened before they what
Kinghorn and Macdonald's first telegram, dated the 3rd October, they in- quired whether they could sell on the defendant's account for $330,000. This would mean that the $300,000 would be payable in full in cash on the completion of the sals and purchase. In their letter of the 4th October they advise the defendant to accept a better offer which they had subsequently received of $320,0.0, "less the usual brokerage." This would mean that the $320,000 would be payable in cash, leas the usual brokerage, on the completion of the sale and purchase. To this the defendant replied by telegraph on the 13th October that he RC- cepted theffer of $320,000 "net," if they could not do better, but they were to try all they posssibly could do to get 85,00 more. It will be observed they both these offers were for cash, in the first case in full, in the second sub-
the usual brokerage," and that the But then it is suggested, on behalf of the plain- ject to defendant had, as regards the second offer, de- tiff, that, even if it be granted that the authority clined to allow the brokerage. It will also be exercised by Kinghorn and Macdonald was not observed that the defendant in his telegram did in fact conveyed to them by the defendant, yet
cash"; there was no need the defendant's telegram of the 20th October was į not use the word
30 ambiguous in its meaning as to mislead them for him to do so, because the offer was a cash one, though subject to a suggested commission. iuto taking the action which they did take. The The effect of this telegram of the defendant issue raising this point is framed in the follow- was that on the 13th October Kinghorn and ing terms:-" Are the said telegrams (that is, Į Macdonald had his authority to accept an offer the two just mentioned] so ambiguous as to be for the purchase of the Lot for $325,000 payable susceptible, to a reasonably intelligent person in full in cash on the completion of the transac-reading them with due care, of the construction tion. No question of a deferred time for pay thus pat upon them by Messrs. Kinghorn and ment of the purchase money or any part of it Macdonald P" had at that date been raised between the prim cipal and his agents.
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In dealing with this issue it may of course be admitted that the defendant's telegram of the Then comes Kinghorn and Macdonald's tele- 20th October might very well, especially having gram of the 19th October submitting the regard to the importance of the transaction, plaintiff's offer for the defendant's consi- have been fuller and more explicit in its terms. deration. There are three terms in the tele- But one naturally looks for compression in an over-seas telegram, and it is reasonable to Another case which goes to support the gram, namely, the price, the time of pay- plaintiff's contention on this issue is Newell v. ment, and the commission to be allowed, expect that due care should be used in reading Radford, L. R. 3 C. P. 52. There the question The word cash" is used with respect it and in putting a construction upon it. If was whether the following entry in the plain-to the payment of 10 per cent. of the such due care had been used in the present in- tiff's book :-
price; the question of deferred payment of part stance, I do not think that. Kinghorn and Mac- of the price is introduced for the first time. donald would have had much difficulty in making With regard to the price the defendant had out the real meaning of the telegram. But it is already by anticipation, by his telegram of the evident from Mr. Kinghorn's letter of the 22nd | 13th October, given his sanotion to its accep-October that this due care was not exercised. thought tance; with regard to the two other terms, the | He quotes the telegram and says he
it referred to the question of commission only." deferred payment and the commission, it is
But surely the question of commission was clear that Kinghorn and Macdonald had no authority to bind the defendant with respect to covered by the words “$325,030 net," and it is them without the express or implied sanction difficult to see what the word “cash" had to do with that question. And again it may be of the defendant. I do not think that mere silence in his reply to their telegram could pointed out, be taken to convey such an implied sanction: in such a case it would be necessary for the agents to hold their hands and telegraph again for an answer on that point.
JOHN WILLIAMS."
June 8th. was a sufficient memorandum in writing of a contract to satisfy the 17th section of the Statute of Frauds. In an action for non- delivery of the flour it was proved that the entry was made and signed by Williams as the duly authorized agent of the defendant, and that the plaint ff Newell was a baker and the defen dant Radford was a flour merchant. It was not disputed that the signature of the agent Williams was sufficient to bind the defendant, but it was contɔnded that the written memo- randum did not sufficiently show which of the parties was the buyer. But the Court thought that the parol evidence received was admissible to explain this doubt, and it upheld the me- morandum as sufficient within the Statute to charge the defendant.
I am, therefore, of opinion that on this first issue the finding of the Court must be in favour of the plaintiff.
So also with regard to the second issue, which raises the question whether Kinghorn and Macdonald were in fact acting for and on behalf of the defendant in writing the letter. It is not denied on behalf of the defendant that they were so acting.
The next is the main issue in the case. It is Did Messrs. Kinghorn and Macdonald in tact have authority from the defendant to write the letter P..
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19 cash.
Now, how does the defendant in his telegram in reply of the 20th October deal with these three terms of Kinghorn and Macdonald's teleg am? He says he "cannot accept less than $325,000 net. It is manifest that this disposes without ambiguity of two of the three terms of Kinghorn and Macdonald's telegram, namely, the price and the commission. After these words comes the only other word in the telegram, the word
What does this word mean in its ordinary significano? It rzeans “ready money; money on hand or at com. mand." To what does the word refer as used in the telegram? I have no doubt it was intended to refer and does refer to the third term in Kinghorn and Macdonald's telegram, namely, the time and manner of payment of the price or purchase money of the Lot. That it was in- tended so to refer is clear from the defendant's next telegram, sent on the same day, the good faith of which is not impugned. I think the earlier telegram was intended to convey, and does with sufficient clearness convey, to King horn and Macdonald the defendant's authority purchase of the Lot to accept an offer for the
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as I have already indi oated, that if the defendant's talegram was silent on the question of the time of payment of the purchase money, the agents could not properly infer from that silence an authority- to consent to the proposed terms of payment. In such a case they should have done what Mr. Kinghorn admits he ought to have done, that is, telegraph to the defendant “for confirmation of the time:" I cannot help thinking that Mr. Kinghorn's letter makes very much against the plaintiff's contention on this issue. For, in- stead of throwing the blame on the defendant for sending an ambiguous telegram, he takes the blame to himself, saying that he had “made a dreadful mess of it"; that he ought to have “wired for confirmation of the time"; and that he had “made a blunder" in consequence of his "incorrect reading of the telegram." I think be did make a mistake which a little more care and circumspection would have prevented, but at any rate, so far from persisting in his mistake, he did what he could to atone for it by a manly and straightforward admission of his error.
Finding, as I do, in favour of the defendant on this issue, it becomes unnecessary for me to consider the remaining issues. It necessary for me to pronounce an question which was argued at the bar, 1
The answer to this question must depend on the right construction of the documentary evi- dence in the case, and especially of Kinghorn and Macdonald's telegram of the 19th October, and of the defendant's telegram of the following day in reply. It is not alleged on behalf of the plaintiff that Kinghorn and Macdonald had for the price of $325,000, snch price to be pay- whether Kinghorn and Macdonald had in any any general authority from the defendant to able in full in ready money on the completion case, in point of law, authority to bind the › whole enter inte a contract for the sale of the Lot; it is of the transaction. Kinghorn and Macdonald defendant by entering into ■ contract therefore necessary for him to show that King-regarded the telegram as conveying to them the writing on his behalf. The result on horn and Macdonald, in writing and signing defendant's sanction to the proposed time and case is that Kinghorn and Macdonald, the letter, which I have now held to be valid manner of payment of the purchase money, and ing their letter of the 20th October, had no
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