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could hardly amount to a waiver of the con- dition in the contract that these goods should | be according to sample. And there was plenty of time for the plaintiffs to unsolder the tins and put in other biscuits. Forty-five tins we e sent down on the 31st December, but the other tins were not sent down till afterwards.
His Honour - You never asked the witnesses any questions about that. You do not expect me to charge this man with fraud.
Mr. Pollock-I am only pointing out that there is a possibility of the bisonits having been changed before delivery, and that possibility should make Your Lordship somewhat chary in finding that what was done by Mr. Weismann was absolute acceptance of the biscuits. The fact that the plaintiffs had bad biscuits on their premises is p oyed by the fact that the defendant rejected a hundred tins on the Praya, and the plaintiffs acquiesced at once. Some time on the 3rd or 4th January Mr. Pick, Mr. Weismann's European assistant, while attending to these biscuits being packed, happened to look up a lane at the back of the plaintiffs' shop. He saw some biscuit tins being lowered down with is rope into the lane. Thinking that this was a very extraordinary thing, and that perhaps something was not right, he went up stairs, where he found a lot of tins and biscuits. He at once took a ricsha to Mr. Weismann who came and saw these old biscuits, and, fer- ing they would be palmed off on him, made a Mr. Weismann at once communicated with Messrs. Blackhead and Company, and as a result, the biscuits were inspected on arriving at Singapore. They were refused by the parties there; Messrs. Blackbead and Company threw them back on Weismann; and Weismann is trying to throw them back on the plaintiffs on the ground that they are not proper biscuits, and not up to sample.
row.
Evidence for the defendant was called. The case was adjourned.
IN ORIGINAL JURISDICTION.
Thursday, 16th March.
BEFORE SIE H. S. BERKELEY (CHIEF JUSTICE).
THE HÔNGKONG WEEKLY PRESS AND
Year 4th Moon 30th day. Writing made by Wong Lut Wan.
"
**
the
misrepresentation inducing thereupon forged or The 1st day of the 5th moon is the 27th of words Rent for each mo May. The 29th Year of Kwang Sú the 4th the end of the anthority to sell moon 30th day is the 26th May, 1903. The plaintiff to the broker. defendant declares that this document as it now gestion the plaintiff tendered the evidence”,
In support of stands was on the evening of the 26th May, European architect to the effect that in his onl 1903, handed to him in his house by the plain-nion the houses were cheap at the price for which tiff's broker and his evidence in that respect is the plaintiff agreed to sell them, The defendant. corroborated by one Sz Hoi-Chn a friend who however absolutely denies the assertion that he stated that he was in the defend int's hous at the visited and inspected the houses before he time. It is admitted by the plaintiff that the purchased th m, and points out that the assertion document, with an exception I will mention, was rests upon the uncorroborated evidengs of the the broker by his authority; but the plaintiff submits are to be regarded as interested and written by him and handed to the defendant by gardener and the broker, both of whom he denies that the words $650
Rent for each month biased persons, the gardener being in the i authority. He says that when he handed the and the broker depending for his commission on 5 were written by him or with his present employ of the plaintif at $13 a month, ** document to the broker for the purpose of being the success of the plaintiff in this action, and given to the defendant those words were not on he submits that the architect's opinion is open--- the document; and the broker adds the state- ment that when he handed the document to the rentel can hardly be said to be cheap at to the criticism that houses, which cannot be defendant it did not contain the words "rent any price. The contention of the plaintiff, each month $650"; but concluded with the is moreover that the defendant whom heɑ words "This is proof." On the other hand the describes as a land speculator did not rely upon -... wituess Sz Hoi Chu declares that those words the alleged representation that the houses were 7: were on the document when it was handed to the let for $650, but that he visited the property and defendant by the broker. He says that the inspected it and knew that four out of the si defendant having asked him if he considered he houses were unlet and that of the remaining document and observed that the rental was for $96. In other words the plaintiff asserts had made a good bargain, he looked at the two one was let for $100 a month and the other stated to testimony as to whether the words constituting the houses were rented for $650 a month be $650 a month. The direct that so far from the defendant believing that
on the document when it was handed to the Is it true as asserted by the gardener the material representation were or were not he knew only two were rented for $196 defendant exactly balances. Two witnesses and the broker, but denied by the defendant, positively the opposite way. The question houses before entering into the agreement to swear positively one way and two swear 85 that he visited and inspected
question can only be satisfactorily answer- is where does the truth lie? I think this buy them? If he did he must of course become aware of the fact that four of the six were ed after a consideration of the probabilities, unrented. He is described by the plaintiff as a I will first consider what material facts sharp business man and a speculator in land and may be regarded $8 established and then house property. If that description is fair then what legitimate conclusion may be deduced it must be assumed that he would on finding. from them. We have it establisheded that four of the six houses empty enquire into the at the time the plaintiff placed the houses cause. Enquiry would have disclosed to him in the hands of the broker to sell them the the fact that these houses could not be let locality in which they were situated had a bad because of their evil reputation for fever. Yet reputation for fever; that in consequence four this business-like land speculator entered, it is of the six houses were then unoccupied, and so alleged, into an agreement to buy for $61,500 remain to this day; and that for a similar reason six houses knowing that four of them the remaining two becams vacant shortly after
not empty and the property was sold to the defendant. It is
likely to be let, and knowing that all the return he could clear then that at the time the plaintiff employed depend upon was the rent for two houses let on the broker to sell those houses he had short tenancies and producing in all 8196 a a strong inducement to do what he could to rid month. Such conduct on the part of a man- himself of the property. We have it further may be possible but it is not such as would be established as a fact that the words "rent for expected. This suggestion that he would be each month $650" which the defendant says tempted by the low price at which he was. were added by the plaintiff after the rest of getting the houses does not carry much weight the document had been written bear a strong for $61,500 is a very large sum of money; and", resemblance to the plaintiff's bandwriting. The as I have said it seems to me a misuse of the explanation suggested by the defendant is that terms to describe as cheap at that sum a row of yielding to the temptation of getting rid of houses which cannot be let. The houses, it is the property which could not be rented the admitted, are at present, nearly two years after plaintiff inserted the untrue representation making of the agreem nt, to enforce which this as to the rental in a feigned hand in order action is brought, still unlet. It seems to me, to enable him when the enevitable discovery more likely that the plaintiff, the owner, who knew of the truth took place to repudiate the the reason why he could not let his property, representation as emanating from him. The would be possessed of a strong desire to get rid explanation offered by the plaintiff for the of them, rather than that the defendant, a admitted similarity is that the defendant desir- speculator knowing of their reputation for fever, ing to get out of his bargain added the words would be likely to burden himself with property "Rent for each month $651)” after the docu- that, assuming he knew of the evil reputation, he ment had been handed to him by the broker must have known he would in all probability either himself imitating the plaintiff's hand- writing or procuring someone to do so.
have great difficulty either in renting or behalf of the plaintiff & man
On selling. If the evidence of the compradore Sz. employ who was at the time the gard. man is accepted, then it is established that two now in his Hoi Chu who appears to be a very respectabla ener of the tenant of one of the houses then days before the agreement for the purchase was rented and who was acting as caretaker of the signed at the office of Mr d'Almada who was four empty houses gave evidence that on two acting as solicitor for both parties the added occasions prior to the 27th May the defendant words were as they now appear on the broker's The doon-visited and inspected the houses on one occasion
accompanied by the broker and on the should that man's evidence be rejected? He written authority from the plaintiff. Why other occasion by a stranger to whom he is about the only spoke of the houses in terms of praise. The who gives really material evidence The ques. disinterested witness suggestion is that the defendant had entered tion then is were the words in dispute on the into negotiation with the broker for the purchase broker's authority before the agreement *was of the houses as a speculation well knowing signed at Me' d'Almada's P- “On that question them then to have a bad reputation for fever Mr. d'Almada's evidence is of and believing at the time that he saw his way to but expecting to get them cheap in consequence, says that on the 27th May, the sell them at a profit; and that he was still under came to his offloand told him that
one of chiến Sy Hội Chú một the belief that he signed the agreement at Mr. the property for 661,500; tha D'Almada's office for purchase, but that he sub e, as to the wisdom of the pa quently failed to re-sell and desiring to be relieved defendent thên said tớ to chỉn of his bargain he conceived the idea of alleging a fight; the rental is $650′′
WONG LUT WAN V. TAM CHAK U. The hief Justice gave judgment in this action. The Hon. Mr. E. H. Sharp, K.C., in- structed by Mr. R. Harding (of Messrs. Ewens and Harston) appeared for the plaintiff; and Mr. H E. Pollock, K.C., instructed by Mr. Almada e Castro, for the defendant.
His Lordship said:-This is an action to compel specific performance of an agreement in writing for the purchase of certain property in the pleadings specified dated the 28th May 1903; with a claim in the alternative for damages. The making of the agreement and the payment of a deposit on account of the pur- chase money is admitted by the defendant but he denies that the plaintiff is entitled to call upon him to perform the agreement and claims a return by the plaintiff of the deposit paid on account of purchase money on the ground that he had entered into the agreement and paid the deposit on the faith of the material representation made to him by the plaintiff and by the plaintiff's agent that the property was at the time bring- ing lu & rental of $650 a month which was in fact untrue. This material representation the defendant says was made to him both verbally and in writing and he produces a document which if genuine supports his contention. This document purports to be a written authority by the plaintiff to a broker one Cheung Fu Shan to sell certain houses in Richmond Street then bringing a rental of $650 a month. ment as translated is as follows:-The maker of the order is Wong Lut Wan who has now handed over to Cheung Fu Shan six European houses in one row on an ares of 75,000 square feet on lots numbered 12.6 and 609 in Rich- mond Street on Green Mount. It is distinctly agreed that the fixed price of $61,500 shall be charged payable in bank notes. the time up to the first day of the 5th moon is fixed for the payment of the bargain money of $6,150. Brokerage is to be calculated at $1 per $100 and if the time fixed is over this paper shall be treated as waste paper. This is proof. Rent For "month" $650," "Kwang Su 29th
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