►
888
THE HONGKONG WEEDLY PRESS AND
write something on a piece of paper to show that there was a shortage of $21,400, pending the finding of the cheque. He says also that there was a discussion as to the Chinese word to be used.
If this is an "account stated" in its strict souse, or an I.O.U. or promissory note as it was variously called, it would be capable of supporting the action independently of the agreement. If the defendant is liable on the agreement, this ground of liability is superfluous. If he is not liable on the agreement, then I should have to hold, that the defendant had made himself liable in spite of the agreement, by signing this document. Mr. Pollock's argument can be tested by the same process: he argued that the defendant had given this note because he had been negligent. But then, if he was not negligent he would not have been liable, and would not have given the note. In other words, if this is a good ground of liability, the defendant has made himself liable in spite of his not having been negligent.
It is therefore merely a question of fac!, "r rather, of appreciating the circumstances under which the document was signed and given to the plaintiff. It is not likely that the defendant in the hurry of the moment would there and then have admitted liability: nor do I think it likely that the laintiff, who was theu concerned only with the missing cheque, which would be his Voucher for the payment of the money, would have insisted on such an admission. On his own evidence there might have been fraud on the part of another Chinese clerk and no uegli. gence on the part of the defendant, in which case, as he says, he would not have considered the defendant to be liable.
The most natural thing for him to do was to get an admission from the defendant that the money was short, leaving the question of liability to be sub- sequently determined, and such an admission the defendant could not avoid giving. More over, the reference in the document to bank notes"
seems of itself to show that it was a record of shortage in the bank notes in the defendant's custody.
I hold therefore that this third ground of liability also fails. As to both of the alternative grounds they do not amount to much more than other ways of looking at the facts. Either the defendant is liable under the agreement or he is not: or, the defendant is liable by reason of negligence or he is not. There are
no other circumstances which could import liability, and which could form the basis of an independent
action.
I come now to the question of negligence, which was specifically raised by the plaintiff iu his counter-claim, and which is really the gist of the present action.
As I have already said, I am of opinion that the cheque did bear the "Paid Chop" on it, and also blue pencil marks which were not, but which purported to be, the Ge man clerk's initials, and that they were in all probability sufficiently like them to deceive the defendant at first sight. Much stress was laid on what took place after the cheque had been paid. There certainly are signs that the shroff was not particularly care- ful as to the custody of the cheque which had then become his voucher for payment of the notes. He seems to have left it to his assistaut. But the disappearance of the cheque has not much bearing on the actual negligence com plained of. If it had been forthcoming it would have facilitat d the discovery of the fraud, and might indeed have assisted the defendant in making some points clarer than they are. But I do not think this negligence, assuming it to be negligence, evidence of his alleged negligence in not discovering the fraud. If the defendant is liable he is liable irrespective of the disappearance of the cheque, and therefore the negligence in respect of it, if any, may be
eliminated.
One point specially insisted on by Mr. Pollock was that the defendant in his cross- examination had laid stress on the importance of the "Paid Chop" being on the cheque: he suggested that the initials had been neglected, and I think he went to the extent of saying that the defendant had admitted that "he did not bother about the initials." I remem. ber the point being made in the o oss-examina tion, and I was under the impression while listening to the argument that the defendant
did say this. But on reading my notes I find that what I took down was this
[Deosmber 2, 1905.
Monday, 27th November.
IN SUMMARY JURISDICTION.
-----
CLAIM FOR FOOD AND CLOTHING. Gogger Singh sued Sowan Singh to recover the sum of $30, being as to 824 price of clothing supplied.
Mr. O. D. Thomson represented the plaintiff, and Mr. F. X. d'Almada e Castro appeared for
the defendant.
Mr. Thomson stated that the plaintiff and defendant came from the same village ju India. The defendant arrived in the Colony about nine months ago when he saw the plaintiff and asked if he would get him work. The plaintiff said he would try to do so, and in the meantime he supplied him with food and Defendant recently got bought him a erat. employment in Fenwick's as watchman, but had since refused to repay the amount due. On Saturday night the defendant visited one of the plaintiff's witnesses, and offered him a bribe of $ not to give evidence in this case; he further threatened that if he did he would punish him in some way.
"The chop is of great importance: my instructions were not to pay unless it was on. The important matter is the chop: the initials BEFORE MR. A. G. WISE (PUISNE JUDGE.) are the second. There are other initials on the cheque: those of the Portuguese clerk: bis initials are not my business. I do not trouble about them, I go according to my instructions." I have no doubt from this that the question was put and answered as Mr. Pollock suggests: and also that at this stage of the cross-examination the defendant did emphasize the importanon of the chop. But the question as to not troubling about the initials followed immediately after the reference to the initials of the Portuguese clerk, which are unimportant in the present case, and it is possible that he was thinking of them when he answered. But the witness does not appear to be a very intellectual person, and I cannot dissociate what he said at one point of his evidence from the general tenor of it. Throughout he did not deny, but rather em- phasized the importance of the German clerk's, the blue pencil initials. In his eximination in chief he said "my instructions were paying cheques to be most particular that the initials of the foreign casher and the 'Paid' had these initials on; I knew it because I an stamp were on before paying. This cheque accustomed to it." He added that Tai Sui Ho had brought the cheque in with five others, which is most probable; the others were initialled by the German cashier:-“I took it (ie, the one for 821,400) and examined it, and seeing that the initials and chop were ou it, I entered it in my book, and counted out the notes ;" and ia cross- when the plaintiff first examination be said asked me about the initials I uncertain. He asked me if the initials were on. I said yes, those are your instructions. On the whole, therefore, I think that the defendant treated this cheque as he did all others: looked to see if the usual blue pencil strokes were on it, and was deceived by the fraud.
40
on
was not
the
But Mr. Pollock went further, he contended that it was the defendant's duty to see Germau cashier and ask him if the supposed initials were in fact his: that he was bound to verify the initials in order to satisfy himself that they were genuine, if not in all cases, certainly in this, because the cheque was au unusually large one: and that this was all the more his duty bec use the init als were so difficult to ident fy. I cannot accept this argument: it would unduly delay the business of cashing cheques if the shroff were perpetually, without instructions, earing his table and going to the German cashier's desk. On busy days, it it would make it impossible to carry on. And if it was his duty op cially because the cheque was large, bis instructions should have provided for it: i had never occurred to the Bank or the compradore that such a precaution in the case of large cheques was necessary. must be judged in the same way as if the fraud had been committed in respect of a small cheque: Bud then the principal points of this argu- ment fall to the ground. The fact is that the nature of the duty which is sought to be imposed upon the defendant is based
10 upon what
exceptionally careful and vigilant and sharp clerk might perhaps do Such a
clerk might have suspected this fraud, might have interrupted the German clerk in his own work, and so might have discovered it. But on the other hand he might
not.
This case
cannot hold that the defendant was
negligent because he did not do so. To be negli gent presupposes the existence of some duty which has been neglcted: there is no duty to be exceedingly sharp or clever: nor, where an elaborate scheme of check and counter-check has been devised can I hold that it was the duty
of the defendant to have invented another cheok
which had not been assigned to him: the existence of such a duty having only been thought of after a fraud had been committed
Mr. Almada said the defence was a complete denial. Ever since the defendant's arrival in the Colony he had lived with two of his countrymen, but never with the plaintiff.
His Lordship, after hearing the evidence, gare judgment for the defendant with costs.
Wednesday, 29th November.
IN ORIGINAL JURISDICTION.
BEFORE SIR FRANCIS PIGGOTT (CHIET
JUSTICE).
CLAIM FOR MONEY DEPOSITED.
Lo Yee Wo claimed from Kwong Kam Chuen the sum of $2,000, money deposited.
Mr. H. G. Calthrop, instructed by Mr. O). D. Thomsou, appeared for the plaintiff, and Mr. M. W. Slade, instructed by Mr. C. E. H. Beavis (of Messrs. Wilkinson and Grist) repre- sented the defendant.
Mr. Calthrop stated that the plaintiff was a trader carrying on business at No. 46, Queen's Road East. He was suing the defendant for th return of a sum of $2,000 which was deposited with the defendant in order to secure the performance of a building contract by one, Chau Ping Fong. There were no pleadings. and the contract had not been carried out. Au affidavit was filed by the defendant in which he said the deposit agreement was altered, and the performance of the contract was guaranteed by a firm called the Tai Chan. The houses had been completed and the money was, therefore returnable to the plaintiff. His Lordship would remember that when the case was coming on, an affidavit was put in by the defendant in which he said that these alterations in the agreement were uot in his handwriting; he did not agree to the transfer at all. The circumstances under which the deposit was made were that in 1903 a contract was entered into between the Wing Wo firm aud Kwong Kam Chun, one of the members thereof, for the building of some foreign houses on Inland Lots 573 and 574. Kwong Kam Chun entered into a sub-contract for the building of these houses with the man the plaintiff originally guaranteed, Chan Ping Fong. When he entered into this contract the defendant wanted some security for the due performance of it, and Chan Ping Fong got the plaintiff. Lo Yee Wo, to deposit the sum of $2,000. The contract was commenced by Chau, and some little work was done, but in the beginning of 1904 he, for certain reasons, had to go to China. He went to the plaintiff and took him the contract made with the defendant. The plaintiff then thought he would have to get somebody else to complete the contract owing to Chau Ping Fong's failure to do so. He received a letter from the defendant asking him to call about the matter, and that letter counsel would submit.
For the defence Mr. Slade stated that the contractor entered into a sub-contract with a
In my opinion the shroff did exactly, no more and no less, what he was told to do. The fraud really resulted from the fatal facility with which the blue pencil initials, which were vital to the payment of the cheque, could be o pied. Judgment must therefore be for man whom the plaintiff guaranteed to do the defendant on the claim and also on the counter-work for 841,300." Whether that man discovered claim with costs.
that he had made a bad bargain, or hadn...
2
No comments yet.
Private notes are available after approval.