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THE HONGKONG WEEKLY PRESS AND
do not do it-they are a great deal too sensible. | infer that what you say is true as that the Taking into consideration the conflict of_evid. defendant put them there as a possible way out: ence there must have been perjury, but I will of the contract. not ask your Lordship to commit my friend's witnesses for perjury, and, if you find for him, I am sure he will not ask your Lordship to commit my witnesses for perjury. The question is, has the defendant satisfied your Lordship on the point at issue? The defendant's case is that he insisted the rental must be inserted in this comparatively unimportant preliminary docu- ment. Why did he not have it put in the agreement? That is a significant point, because he perfectly well knew that no such insertion had been made. As a matter of fact, "existing tenancies under the special condition of the jagreement, is the only thing struck out. It is clear, therefore, that existing tenancies formed no essential part of this docament. That the plaintiff represented these houses as let when they were not is improbable. It is most impro- bable that he would do such a suicidal thing, for the purchaser would discover the fraud at once, or, at any rate, the seller would naturally expect it. To say all these houses were let when the man had only got to go and look would be absurd, The price of $61,500 would be an absurd price if the property was bringing in 8650. If it was bringing in $650
11
it would be worth well-over $100,000. Aud if the plaintiff had to alter the order he would uot have added a clause; he would have written ia fresh one-it is not as though it was a very lengthy document. I submit to Your Lordship that you cannot, in the face of all the direct evidence, be satisfied that the defendant has satisfactorily discharged the onus probandi which rests on him. It is immaterial to decide who wrote these words if Your Lordship is satisfied that the defendant inspected this pro- party. It cannot be said that he entered into this agreement believing that the property was let for $650. I think we have established that in fact the defendant inspected the property and knew all about it before he signed the agreement, I therefore ask Your Lordship to find for the plaintiff.
Mr. Pollock on behalf of the defendant, said-In the first place I would desire to impress on the attention of the Court that the very face of the plaintiff's case really involves a charge of forgery against my client. The very case as presented to the Court involves in effect an allegation that either the defendant himself made a forgery by adding these additional words without the consent of the plaintiff, or he got some employee to do it, which, would make the defendant more to blame in involving someone else. It is distinctly laid down (Carr on fraud) that the law in no case presumes fraud !in any doubtful matter. Fraud could not be assumed on doubtful evidence. Frand must be clearly established, a fortiori, should it be acted on by the court in a case which not only involves fraud, but fraud of the most serious kind, viz., fraud involving the crime of forgery. Having made that preliminary observation I will pass on to the witnesses who have giren evidence, as a general observation leaving out the expert who does not give evidence to fact but to theory-they are all interested witnesses and are therefore interested to give evidence on behalf of the plaintiff and in support of the plaintiff. The first witness was the plaintiff himself. Whatever Mr. Hazeland
may have said about the value of the pro- perty, the plaintiff is very anxions to get the defendant to take it at the price mentioned. The broker has been shown decidedly to be an interested party. He said "my commission was to be 1 per cent., but payable on com- pletion." And the gardener was still in the employ of the plaintiff, and had received a rise of wages. The additional characters must have been added by someone, and I would ask Your Lordship to state that the plaintiff added them; and if the plaintiff added these words in the contract no question of any forgery can arise, Would the defendant have added these charac. ters before the signing of the contract?
Hon. Mr. Sharp-Yes, for a possible way of getting out of the contract if he so desired.
Mr. Pollock-I would ask if that would be probable; and ask if the plaintiff did not write in these words, disguising his own handwriting (Laughter).
His Lordship-I am not smiling in derision, but in amusement. It is just as reasonable to
Mr. Pollock-There was every reason for him doing so, because the property did not lat for $650, which the plaintiff could not have substantiated. That is a reason for the plaintiff writing in a feigned haud The defendant was a somewhat speculative man, and he rose to the bait. He said That is a very good thing for my money; I will close at once," and he did so without in- specting the property. Can it be supposed that the defendant, no matter how skilful, could insert characters that the plaintiff could not detect. Before the contract was signed it is clear that the plaintiff must have sea these added words. Mr. Almada e Castro said, in effect that the plaintiff wanted $63,000 for the property. The defendant said "Is this not your order for $61,500. The plaintiff looked at the order and said "Yes." Again, it would have been a very hazardous thing for any- attempt forge the plaintiff's writing. The figures $650 must have been added by someone, and only one or two persons would have been likely to quote that figure either the plaintiff or the broker. The defendant quoted the figure to Mr.
one
to
to
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Almada e Castro to show that he was making good bargain. The plaintiff is anxious to part. with the property owing to the feverish nature of the locality. These houses were vacant before the contract of sale, and have been vacant ever since. At the present day all these houses are vacant. The property has not been well let for the last three or four years. It is all very well to valus bricks and mortar if no one will live there.
[Mraoh 11, 1905.
Wednesday, 8th March,
IN SUMMARY Jurisdiction.
BEFORE HIS HONOUR MR. T. SERCOMBE
SMITH (PUISNe Judge).
MUTUAL STORES V. TOYO KISEN KAISHA This, a claim for $117.60, commenced on 7th March, was concluded. Mr. St-avenson (of Messrs. Deacon, Looker and Deacon) appeared on behalf of the plaintiffs, and Mr. Bailey (of Messrs. Johnson, Stokes and Master) for the defendants.
J. B. Smith, commission agent, and F. C. Man Fang, manager of the Mutual Storas, gave evidence on behalf of the plaintiffs. It was the practice of large shipping companies to give notice to consignees on the arrival of short landed cargo. The former witness said there was considerable risk in taking canned goods cargo if the tins were rusty. The contents would be all right, but the goods would be unsaleable.
Mr. Bailey-The plaintiffs are relying entirely on the grounds of the absence of notice.
The
defendants' case is that notice was given, but even if the plaintiffs received no notice it is the custom of the port not to give notice, though many steamship companies do give notice.
H. A. Burke, second shipping clerk of the Toyo Kisen Kaisha, said :-Goods consigned to the plaintiffs were shipped in San Francisco by the Nippon Maru, but this ship was taken up by the Japan se Government when she arrived at Kobe. The goods were therefɔre bɔoked by the Shawmut. They appeared on the Shawmut's 14 Mr. Belilios' house cost manifest, but the
cases were short $400,000, but no one would ask for that. Its shipped and sent on by the Olympia. worth is in proportion to what
put it will
notice in the newspaper saying bring in. If you cannot let the houses they are
that if damage to goods was not claimed worth nothing. A European would have in- spected the property, but a Chinaman-they
are so very speculative-would not have one so if he saw a good thing; he would snap at it If the defendant had gone up to the property. he certainly would not have purchased it Of the six houses only No. 1 No. 6
was let, was about to be let, and Nox. 2, 3, 4 and 5 had been vacant for some months. He would have found that the houses would only bring him in $196 per month. In conclusion, I think I have been able to show on behalf of the defendant, good grounds that these words were inserted by the plaintiff and before the signing of the contract.
His Lordship-I think that as the interest involved are so considerable I shall take some time to consider my judgment, which I shal give with reasons at a later date.
IN SUMMARY JURISDICTION.
BEFORE HIS HONOUR MR. T. SERCOMBR SMITH (PUISNE JUDGE).
MUTUAL STORES V. TOYO KISEN KAISHA,
This was a claim for $117.60. Mr. Steave son (of Messrs. Deacon, Looker and Deacon) appeared o behalf of the plaintiffs, and Mr. Bailey (of Messrs. Johuson, Stokes and Master) for the defendants.
The facts of the case
suga
cases
as stated by the plaintiffs solicitor were that the plaintiffs purchased 25 cases of preserved cora from the Californian Fruit Canning Association. A part of the
cargo Was delivered on or about February 3rd, 1904. The plaintiffs' godown man tendered at the defendants' godown and received eleven only. The defendants' godown man informed him that the other 14 cases were short landed, and gave a short delivery order acknowledging the non-delivery of 14 cases. The plaintiffs then awaited the arrival of th's cargo. As they had heard nothing by the end of August, the plaintiffs sent iu a claim for the value of the corn. The defendants in the course of some correspondence referred to the 14 cases of corn, asking the plaintiffs why they had not taken delivery. That was the first notification the
plaintiffs had received of the arrival of the corn. They inspected it and found it in such a state that it would have been unwise to have taken delivery. They refused to do so---hende the action.
The case was adjourned.
盘
for by the 8th February claims would not be entertained. The first intimation I received of
any short cargo was in the latter part of August. Altogether there were 7,000 cases, short shipped by the Shawmut which came on by the Olympia, and all these goods have been taken delivery of without notice. On the 22nd March, desiring to get godown space, I sent our godown man to give notice to the plaintiff to take delivery of his 14 cases. Consignees are occasionally given notice that short landed cargo
has arrived, for the shipowner's own con- venience. A consignee should be sufficiently interested in his cargo to find out whether his goods have arrived. The plaintiffs have on another occasion taken delivery of a case of
asparagus and a case of milk without notion. The custom of the port is that the consignees ought to enquire for their short landed cargo.
His Honour -It seems very unreasonable. Witness continuing--On 12th February the goods were surveyed by Messrs. Goddard and Douglas.
Cross-examined-I understand a bill of lading. The " consignees notics” meaus notice of the arrival of the ship: I know the nature of the goods. I do not think it was my duty to notify the plaintiffs; they had been verbally notified that the goods would arrive by the Olympia; I thought the plaintiffs were leaving the goods there for their own convenience. We had the goods surveyed by Messrs. Goddard and Douglas for our own protection, because considerable damage had been done during the transhipment of the cargo at Kobe. We did not tell the owners of the goods that they were being surveyed. because there was a lot of tranship- ment cargo destined for other ports. These notices (produced) are from our company, but they are original shipment notices it would have been more reasonable to give Mr. Stevenson-Maskee; do you not think notice to the shipper of the cargo?
Witness-No, but we often do give notice for our own convenience.
Re-examined-No notice relating to short delivery cargo. was put in the newspapers. A man is supposed to send in a claim within a reasonable time so that if there are any goods
said: If consignees are notified in a daily short we can try and trace them.
paper and short delivery of cargo is given it is not the custom of the port to give notice, but 83 a matter of fact sometimes notice is given for the shipowner's
L. Lewis, chief olerk of the P. & O. ofios,
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