•
Dasambar 25, 1908.]
The Committee thought that the regulations governing the port of Singapore under which shipping companies pay for the actual cost of up keep for their quarantined passengers, for dis infection of the vessels, and for burial expense only, were more equitable.
The Government made regulations obliging owners to set down infected passengers at a certain spot where they were detained at the will of the Government. The Government should therefore pay the cost of the upkeep of such establishments which were maintained in the interests of the Colony.
The Committee decided to protest against the new regulations.
SUPREME COURT.
Wednesday, 23rd December.
{
IN ORIGINAL JURISDICTION.
BEFORE THE CHIEF JUSTICE (SIR F. PIGGOTT).
A COMPRADORE'S LIABILITY. The Chief Justice delivered his reserved decision in the action in which 8. J. David and Company, merchants, sued Chan Ut Chui. a compradore formerly their employ, for the recovery of 8648.816, the amount of damages due under agreement. Defendant counterclaimed for the return of his security $55,000 alleging that he had fulfilled the terms of his contract.
Hon. Mr. H. E. Pollock, K.C., instructed by Mr. Jackson (of Messrs Johnson, Stokes and Master) appeared for the plaintiffs, while defen- dant was represented by Sir Henry Berkeley, K.C., instructed by Mr. J. Scott (of Messrs. Bwens and Harston).
A
1
I
CHINA OVERLAND TRADE BEPORT.
long as I can get at the true law which ought to decide the question I do not much care who begins. The admission has, however, a bearing on the case which I think it advisable to refer to, although it was not. I think, put forward in ar- gument. Does not this admission show what was the real intention of the parties P I must confess that this question troubles me a little. Can I give judgment against what is the I will assume, clear intention of the parties. I do not think that there is any rule of law, however, which requires a Court to enforce the intention of the parties, assuming it to be ascertained aliunde, contrary to the meaning of the words as used in the agreement. The law requires the Court to seek the intention of the parties from the words they have to express that inten- tion, and I think I am right in saying that, to take an extreme case, even if a man knew that certain liabilities were intended to be under taken by him when he signed the agreement in question, yet if he finds that the agreement as signed does not impose that liability on him, he is not bound, there being, of course, no mala fides on his part.
the mortgage, which appears as part of the sideration for the mortgage, the other part being the compliance by the plaintiff firm with the re-{ quest of the defendant to employ him as compra- dore. The agreement of even date recites the mort- gage: and that in order to further provide the security the defendant had deposited the sum of $55,000 to be held by the firm on the conditions appearing in the agreement. By this agreement the compradors is engaged for three years. Paragraph 8 is the important clause : it provides. in so far as it is mater.al to the present action, firm as part security for the due payment of all as follows:-The $55,000 is to be held by the moneys for the time being oring, to the firm by the compradore under and by virtue of the recited mortgage or of the agreement, and all such moneys the $55,000; but notwithstanding thin the may be retained out of compradore shall be responsible for and make good to the firm all such moneys” as aforesaid whether the same shall or shall not exceed in amount the value of proceeds of sale of the premises mortgaged by the recited mortgage and the said $55,000. The words “all These matters disposed of, it is clear that the such moneys as aforesaid "
mean áll
moneys duo action must rest on express agreement; and in under the mortgage or the agreement. As I order to prove this two documents were put in have said the mortgage contains no personal of even date, 30th January 1902. A mortgage covenant to pay the amount of the losses of certain leasehold property by the defendant incurred by the firm in their dealings with to Mr. A. J. David, whom for convenience I will describe as mortgagee on behalf of the firm somewhat perplexed me, and which I directed Chinese customers; and the question which
defendant and the firm, by which an amount of the agreement can be treated as of the same David & Co. and an agreement between the to be re-argued is, whether this stipulation in $55,000 was deposited by way of further securi- effect aa, and as if it were in fact the ty with regard to the mortgage, the form of it- personal covenant of the mortgage intro. one of the partners being the mortgagee and dused into the agreement. It struck me and liar: in order, however, that no technicality not the firm-I must confess seems to be pecu- still strikes me as curious that this point should stand in the way of the determination
Was not taken originally and the case rested on it but the case was put in. of the actual rights of the parties I suggested the following way this reference in the agree- · that Mr. A. J. David should be added as plain- ment to payment of money owing under the tiff in the action. This seems to me to b. mortgage has this effect-that what is stated in at least advisable, as although the agreement the mortgage becomes evidence of the obligations is the document sued on. the mortgage lies a. which the defendant has taken upon himself as the bottom of the action by reason of the cross compradore; it prevents him from saying that with regard to the method by which the agree not set out in the mortgage. He cannot contend references between the two documents. Now he is not responsible for any matters which are ment has been effected, I am bound to say that I that these things which are included in the piece of conveyancing, for it seems to carry out obligations. After hearing the argument I am cannot see the necessity for this complicated redemption clause are not part of the duties or
what I will assume to be clear by what is very disposed to think that the plaintiffs case cannot manifestly obscure, Clarum per obscurum. be put in any other than this ingenious way. The plaintiff's case is that the compradore On behalf of the defendant it was contended to undertake certain obligations, and that, although the two documents were to he was to give certain security by way of be read together, yet the express referenced
mortgage.
very in the agreement to the mortgage cannot form of deeds; an agreement setting out the junctive and not conjunctive. great difficulty in devising the necessary be ignored, and that these are really dis- And the obligations and a mortgage in which the ful-result of this is that clause 8 of the agree filment of the obligations is made the condition ment is no more than an agreement to be of redemption. The additional security by way responsible for the moneys owing under the of cash deposit does not add much to the com- mortgage which brings us back to the point Instead of this, how- from which we started. This contention then plexity of the matter. ever, some of the terms of the arrangement takes this form; that the only way in which between the compradore and the firm are em- the moneys owing under a mortgage can be bodied in the agreement, and some are made ascertained is by foreclosure; and as there is no conditions of redemption, and the two docu-
covenant to pay the losses incurred by the firm, ments are linked together by a series of cross- the remedy is limited to foreclosure, and there references. It would unduly complicate this is no liability beyond the actual security taken. judgment if I were to refer to any other term As it is important to emphasise the real issue of the arrangement than the one with which raised by the defendant I will amplify this oOTES" this action is directly concerned. The mortgageu tention it is. not merely that as
Aution on reference in the agreement on on the assigns certain property to the mortgagee with the following, among other, provisos for
His Lordship said-Messrs. David & Co. are suing Chan Ut Chin, the late compradore of the firm, for losses incurred by them in their dealings with Chinese customers which, it is alleged, were guaranteed by the defendant. Before coming to the real question involved in this case there are a few preliminary questions which must be disposed of.
It was argued that the liability of the defen- dant flowed from the nature of the arrange ment between the parties, and that it was im- ported in the word "compradore" itself. As at present advised. I do not think this is possible. I think if my judgment in Chan Ki's case (which was referred to in support of the argument) is read as it was intended, it will be found that I carefully guarded myself from using words from which such an inference could be gathered. The utmost that the Court can assume to know is that the compradore guaran- tees Chinese customers; but what I said- showed clearly that the extent of his suretyship must be derived from the documents in which the agreement is drawn up; and I must now add (subject to what I shall say presently on this point) as also the remedies agreed upon for enforcing the obligation of the security. But even had I gone further, I could not hold myself bound by what I may have said in a former case on a point which was not argħed in that case, even though what I said was material, and not obiter. A good deal of -stress was laid on the fact that there had
been
admission of liability an part of the defendant, in a declaration made by him in support of his petition to be adjudged bankrupt, on which petition the Court made no order. laid down in Wong Ka Cheong's case that the utmost length to which the law goes in the way of holding a man bound by what he has asserted to be a fact when it is not a fact, is in the doctrine of estoppel; if it
was
redemption :-
There seems
to
be no
If the compradore shall on demand pay to the firm any deficiency in the price of goods sold by the firm in connexion with contracts made by the firm with Chinese buyers whether such loss is incurred by breach of contract or otherwise.
If the compradore shall on demand other moneys in certain other eventualities which do not concern us in this action.
Then in these events but in these events only the mortgages will re-assign the premises to the mortgagor.
*
pay
certain
does not fall within that doctrine, that is to say. if no one has acted on the assertion to his prejudice, he may show that it is not a fact. In this case, believing himself to be liable for the losses incurred by the firm, he made the statement in the abortive bankruptcy proceed- There is a power sale on giving one ings. He has since been advised that he is month's notice of the ove demands; also a not liable in law; is he to be debarred from covenant by the mortgago in the event of the asking the Court to determine the question of property depreciating in value, to the dif law? Surely not! But in truth the admission ference between $45,000 and $53,000, which in this case was only insisted on with the object value the property mortgaged had apparently of making the defendant begin. I think there been assessed. There is no personal covenant to is no warrant for this contention; but as the case the deficiency above alluded to.
pay
But there has developed itself it seems clear that there is is a reference to an agreement adready prepared, essentially a legal question only involved, and so to be signed immediately after the execution of
|
-_ition
of the right of redemption, the proper form of the action is foreclosure instead of an action on the agreement. It is not merely that because the agreement says that the compradore agrees to pay what is for the time found owing under the mortgage, therefore the mortgage procedure for finding out what is due under the mortgage must be adopted. It goes much further: it is that this part of the agreement is practically useless as a clause importing of itself any precise obligation; that nothing can be found. owing under the mortgage as there is no persqual covenant, bat that the result of it is to leave the remedies under the mortgage precisely as they are to be found in the mort- gage: that is to say that if this condition for redemption is not complied with, the remedy and the only remedy is provided by and that therefore the remedy in the absence the mortgage itself, which is foreclosure;
of express covenant to pay the actual amount of the losses is limited to the amount, of, the security taken. The cases and books throw no light on the question; the only parago
No comments yet.
Private notes are available after approval.