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June 11, 1906.j
SUPREME COURT. Friday, June 1st,
IN ORIGINAL JURISDICTION,
BEFORE SIR FRANCIS PIGGOTT (CHIEF JUSTICE).
COMPRADORES v. CHINESE BANK. The case
was continued in which Tang Chenk-hing and Tang Kwai-pok claimed from the Sha Yuea Bank the sum of $10,000, being on account of money alleged to have been deposited with the defondant bank.
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Mr. H. E. Poll ck, K.C., instructed by Mr. F. C. Barlow (of Mr. H. K. Holmes' office), sppeared for the plaintiffs, and Mr. M. W. Jade, instructed by Mr. R. P. Atkinson (of Messrs. Deacon, Looker and Deacon), repre sented the defendants.
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CHINA OVERLAND TRADE REPORT.
plaintiff, but had indulged in a series of surmises. His Lordship could not understand | why; they were perfectly unnecessary, and if they were not based on fact led fuevitably to a fangled and confused mass of evideno š. He could not believe a Chinese bink was con- ducted on the lines stated in evidence (which | was to the effect that a bank manager ceased to be a manager), and then came the very serious matter of the missing receipt. The manager said he did not know a receipt written by oue of the bank clerks was outstanding, while the clerk said he informed the manager of this The whole story was mystifying, and he did not believe that if such a transaction took place the manager did not know the receipt was outstanding, and that efforts were not made to get it. The case therefore stands in this way : that the plaintiff fail d to maka his case good by his book. A receipt was produced which was challenged, and the challenge was one which his Lordship could not overlook, and he could not hold the receipt to be good in view of the challenge. The defendant's case did not stop there, however, but went on to surmises and was supported by a tangle of evidence. What his Lordship proposed there- fore to do, in view of all the circumstances, was to non-suit the plaintiff because he did not think the defendant, in view of his evidence, was entitled to judgment. There was something more he thought in the first place, in dosling with the conduct of the case and costs, that all tha part of the trial which bad been devoted to unravelling surmises ought to be borne by the defendant, but when he looked back to the cause of the action as stated by the defendant, the culpably careless way in which they had let the document get ont of their hands without paying the slightest attention, be thought the justice of the case required that each party should pay its own coste,
AN UNCOMPLETED CONTRACT.
Ho Tung u. Chung Shup-koo was a case iu which the plaintiff proceeded against the de. fendant for the specific performance of au agreement of lease, and to recover $6,0000 arrears of rent.
Mr. E. H. Sharp, K.C., instrueled by Mr. R. Stevenson (of Messrs. Deacon. Looker aud Deacon) appeared for the plaintiff, and the defendant was represented by Hon. Mr. H. E Pollock, K.C, instructed by Mr. M. J. D. Stephens.
His Lordship, is delivering judgment, said he had had an opportunity of carefully per- using his notes, so he did not think it advisable that the case should bang fire any longer. Had he realised what the case was about, it certainly should not have been set down for trial by a judge without a jury, but as that had been done he would make the best of the materials before him, although he was not quite sure that he would be able to give a logical judgment. He thought there was good deal of truth оп both sides, and were it possible to get to the bottom of the case there would be much more truth than imagined. The case, however, was so mixed up with inconsequent statements that which way the ultimate truth might be almost passed his understanding to decide. In the first place it was not unreason. able that the plaintiff, having a large sum of yen unexpectedly in his hands, should g› to the defendant bank with the object of depositing it. True, be had not had dealings with them before for two or three years, bat it was a bank with which he had bad dealings, and he might have thought it would be a good opportunity for re- establishing relations. What his Lordship could not understand was why the plaintiff should destroy his private memorandum. His case would be a simple case from the evidence in his books. It was, however. strengthened in what appeared a weak point by the evidence of Mr. Mihara, who stated that this dealing had not been with the compradore department of the Mitani Bussan Kaisha but with the compradore personally. The plaintiff destroyed the very book which would have thrown light on the case while be produced others, and his Lordship was entitled to say that he viewed it with suspicion. So far as the books were concerned on which such an action might be expected to rest, the case lamentably failed. He did not see why the defendante did not adopt a simpler means of defence. The missing money must have gone somewhere, and the defendants could have ascertained from other banks who bought the yen, as 10,000 could not be disposed of so easily. There were many difficulties in the way of the receipt. First it had been directly challenged regarding some of the characters on it, and expert evidence had been called. The Court had got to say whether the expert evidence was to be believed, therefore the Court had really got to confirm the evidence of an expert. His Lordship then re iewed the expert evidence and, continuing, said he could not for the life of him couceive how the plaintiff got hold of the document from the bank, but, taking his case as he put it, it might be that he got another receipt but it did not fit in with the case as he put it, so he thought he might alter receipt No. 1. This would be a peculiar kind of fraud, assuming that it was fraud. His Lordship only put this forward because he was anxious, in view of the respons ible positions of both parties, not to press home a charge of fraud What was alleged by the defendants to have taken place five or six years ago repeated itself. A receipt was giroo. a receipt which, according to the defendant's own. statement, would not have appeared in the books of the bank, while of the yen them selves no record would have boon kept in the bank's books. What happened according to the defendant's statement six or saryo
years ago might have happened again. The defendant bad not boon content with challenging the document put forward by the
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terms leading to the offer of the defendant- The first was that the rent should be $4,300 a month, and was not to commence until July let, 1905. The second term was that the period must be ten years instead of five, the third, that the security for his performance of, the lease be reduced to $7,500 cash; the fourth, that the defendant would spend from $10,0X) to $15,000 on alterations to the premises. The only remaining term was that the existing tenants were to be allowed to remain in occupation until their portions of the building were required for alteration. On December 20th a written agree- ment was entered into which incorporated the stated terms, and modified only one them, Ho Tung agreeing that the defendant should spend only $5,000 for alterations. In February, 195, the defendant went to Mr. Bisney and told him the hotel scheme had failed and his syndicate collapsed and he asked Mr. Disney to try to find a tenant for the property.
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This was the beginning of the trouble. Early in March the defendant went to Mr. Bisney and asked him to ask Ho Tung to further remit the rent until such time as altera: tions might be completed, but Ho Tung said he could make no further concessions sa the value of the concessions already granted worked out at something like $40,000,” On May 10th | defendant was sent the draft lease and document which he promised to execute, but fually he re- fused.
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Mr. Sharp, in opening, stated that the claim was for a specific performance of a written agreement for a lease, and for payment of certain arrears of rent due under that leas. The material facts were that on or about October, 1904, the plaintiff was negotiating with Messrs Mody and Babingtou through Mr Disney, who acted as broker and agent throughout in the matter, for the purchase of this property. The property was to be sold subject to au exist.
mortgage of $1300 to ing first Smith and to a second mortgage of 880,000 to the vendors for part of the purchase money. The price was $275,000, and the property was to be sold subject to these mortgages. Appar ently the defendant had previously formed a syndicate to start a new hotel, and he had been negotiating with Messrs. Mody and Babington through sir Paul Chater for the purchase of this | same property, on whicù e ɔunsel would prorethat! the defendant was aware of the mortgages. The upshot of these negotiations was that the de- fendant was unable to produce the balance of the cash, $145,000, and Ho Tung was the purchaser About November the defendant a ked Mr Bisney to obtain for him a lease from the I and Luvestment Co. of the next door house to the house this action concerned-16, Des Yœur Road. This was put through sarly in Decem. ber, when the defendant informed Mr. Bisney that No. 16 would not be big enough for his hotel, and that he desired to get a leas from Ho Tung of bis property as to work the two houses together. Mr. Bisney saw the plaintiff about it. and He Tung asked 82,500 monthly rent to commerce upon the signing of the agreement which he proposed to be a period of five years, while, the third material term was that the lessee was to find security for his performance of the terms of the lease in the sum of $10,000 cub. On December 14th the defendant gave Bisney a written authority to make a reduced offer to the plaintiff and upon that there were further
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The case was adjourned.
Saturday, June 2nd.
IN ORIGINAL JURISDICTION.
BEFORE THE CHIEF JUSTICE (SIR Francis PIRIOTT).
AN UNCOMPLETED CONTRACT.
The case in which Ho Tung proceeded against Chung Shuu-koo for the specific performance of an agrosment of leave, and to recover $6,000, arrears of rent, was resumed.
Mr. E. H. Sharp, K.C, instructed by Mr. R. Stepanson (of Messrs. Deacon, Looker and Deanon), appeared for the plaintiff, and the defendant was represented by Họa. Mr. H. E. Pollock, KC, instructed by Mr. M. J. D. Stephens.
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Plaintiff stated that he completed the negotia. tions for the purchase of the property in 1904, and bought it in November of that year from Me sars. Babington and Mody. The purchase money was $275,000, subject to a mortgage of $150,000 to Mr. Smith, sud a second mortgage of $80,00 to the vendors, and the balance in cash. Mr. Bisney approached him on behalf of the defendant with regard to a lease. Witness a-ked him $2,500 a month rent, plus taxes, for a term of three or five years, the rent to com. mence from the signing of the contract, and also he asked for 8103 00 as security for the perform. ance of the lease. A counter-offer was made of $2,3 monthly rent, plus taxes, for a term of ten years, the rent to commence in July, 1905, the lessee to spend $10,000 or $15,000 on alterations and repairs to the building. Mr. Bisney also offered $7,500 as security instead of $10,000.- With slight modification the terms were embodied
the agreement. The modifica- that the losseo should of $10,000. The spend $5,000 instead
tenants agreement also provided that the should be allowed to remain in occupation until the lessee required the quarters, the Daily Press to remaia nadisturbed until their new premises were realy. Messrs. Babington and Mody sold the premises to witness. The lense of the pre- mises to the Daily Press was not shown to witness. It had been mislaid, and to the best of his belief it had not been found. Witness did not know when the Daily Preea's now promisor were to be ready when he bought the premises. The agreement was drawn up in duplicate, each party" retaining a copy after due uzasutiou. During the preparation of the lease by Moonra. Descon, Loker and Denson, defendant offered witness a second mortgage on some other property instead of the cash, security and the
Witnem was. lease was prepared accoringly, subsequently approached by Mr. Hanéy, behalf of defendant, äsking for a remission yl run for a few months, on the ground that he would lose money, as some of the members of
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