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Colonial Cases

Barton v. Sassoon, 1863

[specific performance - appeals]

Barton v. Sassoon

Consular Court, Shanghai
Source: The North-China Herald, 6 June 1863



JUNE 2nd, 1863.

Before J. MARKHAM, Esq., Vice-Consul,

G. J. W. COWIE, J. G. FLOWERDEW, Assessors.


This action was entered to enforce fulfillment of a contract entered into by defendant on the 3rd May, 1863; relating to the payment of the value of land sold by Plaintiff to Sassoon  David Sassoon in London, in March 1862.  Mr. Lawrance's opening address will explain the particulars.

The pleas in defence were:-

1st. - That Mr. Solomon David Sassoon had never made the contract.

2nd. - That he was only acting as agent for Sassoon David Sassoon, and held no power of attorney to enable him to appear in any Court of Justice on his behalf.

Mr. LAWRANCE said he appeared for Dr. Barton, who brought the present action to obtain performance of a contract, entered into by Sassoon David Sassoon and accepted by the present Defendant on behalf of his brother, on the 6th May.  He should prove by Messrs. Barton and Tootal that the present defendant not only acted as his brother's agent, but as principal, in the matter.  He had entered into a contract as the actual principal, and was liable for its performance.

The sale to Mr. Sassoon D. Sassoon had been effected as stated in March, 1862.  Since the 13th July of that year, defendant had been in receipt of all rents and profits accruing from the property; not a cent of them had reached Dr. Barton.  Not only so, but the property had been re-let to the tenants now in possession and the rents received by the defendant.  The land was sold by Dr. Barton as Lot 117 and registered in the Consular Books - he should prove this by Mr. Solomon Sassoon. - and nothing was said about measurement.  Dr. Barton informed Mr. Sassoon D. Sassoon before leaving London, that he was coming out here to settle the matter; and after his arrival, the contract was entered into on which he now sued the defendant, and by which the latter undertook to settle the affair with Dr. Barton.  He signed it as principal, and said nothing about signing as agent. 

Mr. Sassoon had put up landmarks, shewing he considered himself in possession of the property, and had left them standing until the previous day, with the mark of David Sassoon Sons & Co. on them.  The reason why the contract was not fulfilled was as follows.  A deed of sale had been prepared for signature, but was objected to by Dr. Barton., because it specified a particular quantity of land.  It was then, first, that Mr. Sol. Sassoon said he was only an Agent, rescinded the contract he had entered into, and referred the matter back to his brother.  He considers such conduct at least a gross instance of bad faith.  However, whether to contract were rescinded or confirmed, it was urgent that it should be settled, and it was to hasten such a result that the matter was brought before the Court.  There were two points to be considered - 1st. Whether the defendant were only an Agent; 2nd. whether the contract were really entered into.

ALFRED BARTON: - I hand in a contract entered into between Sassoon David Sassoon and myself.  I wrote to my agent in Shanghai, informing him of the terms on which I had sold the property.  I hand in a letter from Mr. Solomon Sassoon, accepting the property, and saying that he had written to his brother to the same effect.  The leases were not renewed by me or my agent.  From the time they expired, on the 13th July, I have not received any rents.  I called on defendant as soon as I arrived in Shanghai and asked him to settle the matter immediately.  He put me off from time to time, and said the case was so difficult that he had put it in the hands of his lawyer, and referred me to him.  The result of my reference to Mr. Cooper was the agreement handed in - to the effect that the payment for the property should be made, less Tls. 1,000 and L. 100 Sterling.  The bond which it is stipulated in the contract between Mr. Solomon Sassoon and myself should be cancelled, relates to the building of houses.  It was cancelled next day; and thus I performed my share of the agreement.  Nothing was said about the measurement of the land.  Nothing was said by the defendant about not being able to act because he was merely an agent.  I saw Mr. Sassoon in London and told him I was coming out here to get the matter settled.  He led me to believe that, by coming out here, I should settle the matter myself.  I sold it as a plot, never according to actual measurement.  I objected to the words "actual measurement of the ground" being inserted in the deed, and in consequence of that objection, the words "more or less" were inserted.  In consequence of the insertion of the latter words, defendant said he would have a plan of the property made.  I objected, on the ground that it would detain me, and had nothing to do with the sale.

The plan was made, and the next I heard was a letter - declining to have anything more to do with it on the plea that it was almost a third short of the measurement named in the title-deeds; and announcing his intention to refer it to Sassoon D. Sassoon.  The stones were down when I came out, marked S.D.S. They have been taken up since the letter was written to Mr. Cooper refusing to complete the purchase.  I did not measure the property when I purchased it.  I did not know at the time I sold it whether the quantity mentioned in the title-deeds was correct.  I was aware that there was a statement made on the title-deeds.  I do not know whether the number of mow specified is correct.  If I were buying land by the mow, I should like to have it measured.  I have had legal advice in London.  I don't remember any dispute about depreciation in value, in consequence of lapse of time.  There was a question about difference in exchange.  Up to the time of signing the contract, I never heard the question of thr exact amount of land raised.  At the time of signing the contract, it was understood that the bond should be cancelled and the deed of sale executed.  The bond has been cancelled.  The deed of sale has not been executed, because the defendant would not allow the words "more or less" to be inserted.  The draft deed was submitted to my solicitor, who qualified the covenant by the insertion of these words.  I said that "more or less" must remain, and if it proved any smaller quantity they should still stand.  I did not sell any actual quantity. I sold a plot of land.  One of the title deeds described a part of the property as containing 10 mow 1 how; the other describes another part as 2 mow 7 fun.  I don't know whether Mr. Sassoon's statement as to the quantity is right or wrong.  I appointed Mr. Tootal my Agent in Shanghai to conclude the matter.  The sum of Tls. 1,000 was agreed on to settle a dispute f exchange, not on account of dispute about rents.  There were disputes as to who would receive the rent.  It was understood that he should pay L. 13,000, and that he should receive the rents.  I do now know that the descriptions contained in the title deed are wrong.  I went with Mr. Knevitt the surveyor and showed him the land.  The agreement of 22nd December was so far carried out as to transfer the Register.  Mr. Sol. D. Sassoon's letter contains his objection.  I am aware that he objects to take the property on the ground that it is less than is mentioned in the title-deeds.  There has been a long correspondence. (Mr. Barton's letter replying to Mr. Sassoon's, accepting sale, produced.)  I don't remember ever telling Mr. Sassoon that there ware about 13 mow of land. 

Mr. LAWRANCE: - Had I made any representation on the subject, I should have done so as gathered from the title deeds.  There has been nothing to prevent Nr. Sol. Sassoon measuring the land since last July.  He has had it ever since, and there was nothing to prevent him measuring it before he accepted the contract on the 3rd May, 1863.

To Court: - Mr. Solomon Sassoon distinctly gave me to understand that I should receive the money out here.  I did write a letter dated 14th March to Mr. Sassoon regarding the rents.  I never offered to sell the houses separately from the land.  I never offered to sell the land per mow.  I sold the houses and land together, as a lot.  Mr. Solomon Sassoon has only objected to there being less mow, within the time of drawing up the deed of sale.

JOHN BROADHOUSE TOOTAL: - I am agent for Mr. Barton.  My knowledge of the sale first came to me through Mr. Solomon Sassoon.  The leases fell in about the middle of July, and were not renewed; since then, defendants have been in possession.  Mr. Sassoon wished me to deliver over the deeds, but I declined, inasmuch as he had paid no consideration for the property.  It was agreed to refer it to Mr. Whittall.  I transferred the property conditionally on hearing from Dr. Barton that the transfer was satisfactory.  I produce a press copy of a letter written by me to Mr. Sassoon relative to the transfer of the deeds and the rents.  I had a conversation with Mr. Medhurst subsequently, in which he said Mr. Sassoon had objected to the deeds going home; and again another at which Mr. Sassoon was present, attended by his solicitor, Mr. Cooper, to endeavour to arrange regarding the transfer of the deeds.  I stipulated that the bills of exchange of which Mr. Sassoon has shown me the thirds, should be the means of payment at home.  It was objected that this might not be fulfilled, as the bills might have been otherwise appropriated.  It was proposed that Mr. Cooper should suggest a mode of obviating the difficulty.  He did so, and it was agreed with by all.  I gave up possession of the deeds to the Consulate on receipt of the document produced.  The point of measurement was never raised.  I never heard it raised until a few days ago. Nothing was said at that time about Mr. Solomon Sassoon merely acting as agent.  I considered the contract should be completed at Shanghai.

To Mr. COOPER: - I understood that Mr. Solomon Sassoon was acting as Agent for his brother until he signed ©, by which I considered he took the responsibility on himself.  I understood that Mr. Solomon Sassoon has a share in the transaction.  He denied it.  Mr. Sassoon has made so many statements and counter-statements, that it is difficult to believe anything he says.  I understood all along that a conveyance was to be executed similar to those usually executed at Shanghai.  I expected a deed of sale to be executed after the interview on 14th May.  I do not think it unjust to have asked Mr. Sassoon to settle the affair without reference home, because the land was bought subject to his acceptance, and he did accept it, placing stones, collecting rents, &c.  I believe it was agreed that the Tls. 1,000 should settle everything; it was not to cover depreciation of property; it was principally with reference to the disputed exchange.  Depreciation of property was mentioned.  I don't remember anything being said about the rents.  Mr. Sassoon in London objected to pay over the purchase money because the deeds had only been conditionally transferred; so I made an absolute transfer in December.  Still the money has not been paid, and they hold and are collecting the rents.

Mr. COOPER submitted that there was not a shadow of a claim against his client.  What was the nature of the claim? - to compel Mr. Solomon David Sassoon to fulfill a contract entered into in May last.  But it was clear that, from the commencement, Mr. Solomon David Sassoon had acted only as agent for his brother.  Mr. Tootal had admitted that Mr. Sassoon had denied having any interest in the property.  Even if Mr. Solomon Sassoon had committed a breach of agreement, there was no remedy against him; the remedy lay against his principal, Mr. Sassoon D. Sassoon in London.  It was perfectly clear that he was not liable, whether as principal or agent, and he hoped no further time would be wasted on the matter.  He was sure that, if any gentleman were asked whether, under similar circumstances he would have acted differently from Mr. Sassoon, he would reply, no.  There had been a number of trumpery disputes throughout the case.  He would call the attention of the Court to the previous correspondence.  Dr. Barton had never doubted that he was not entitled to the purchase money till the deed of sale and conveyance were executed.  He had admitted so in a letter to Mr. Sassoon in London.  Unfortunately, the whole of the correspondence and documents bearing on the case were not in Shanghai; and it was impossible to form a correct opinion on the merits of the case without them.  It was contended that the Plaintiff was entitled to claim on the agreement.  But what did a contract mean?  It was understood in English law that a contract should be in the form required by the usages of the place where it was entered into.  A deed of sale meant, as every one knew, that the vendor entered into a contract to indemnify the vendee for property transferred.  The nature of the property was described in the title-deed.  Mr. Barton had offered a plot of ground for sale, as consisting of 13 mow.  It was impossible to suppose that Mr. Sassoon would buy land without any idea of the size.  If it were sold by title-deed, the title-deed contained a description of the lots.  No doubt, Dr. Barton believed the full amount of land mentioned in the title-deeds to be there; but it did not follow that Mr. Sassoon was obliged to take it for granted that it was so.  Would it be right for Mr. Solomon Sassoon to conclude the affair, after hearing from his brother that the property contained 13 mow, and finding that it contained one-third less?  What was his proper course? - an appeal to London; and he (Mr. Cooper) advised him to adopt it.  Mr. Sassoon had accordingly been appliquéd to; he might accept the lot as it stands, but M r. Solomon Sassoon would certainly be guilty of breach of trust if he concluded the purchase under the circumstances without reference.  If he did so and the affair was taken into Chancery, the transaction would be quashed on the ground that he had no right to accept one-third less than the promised amount.

The consequence of giving judgment against Mr. Solomon Sassoon would be that an appeal would be made to London to set aside these proceedings, pending which the action of the Hongkong Court would, of course, be suspended.  Out of charity to Dr. Barton, he hoped judgment would not be given in his favor.  The result would be that he would be knocked about from one court to another, and that, finally, all the costs would fall on him.  It was contended that the property had been accepted by Mr. Solomon Sassoon on behalf of his brother; even admitting this to be the case, he did not at the time know that it was short, and naturally now refused to go farther.  If the matter were gone into, he was sure that the delays, &c., which had arisen would fall on Dr. Barton's shoulders, not on Mr. Sassoon's.  He (Mr. Cooper) had accepted a title-deed so faulty that no solicitor in London would have passed it; but they were not in England, and in Shanghai it behoved every one to aid, not obstruct, the transaction of business.  Dr. Barton said he was ready to complete the contract, so far as he was concerned.  He was generous, after the property he wished to part with had been discovered to be one-third short.  The deed would have been completed but for the deficiency in the number of mow. A letter would immediately be sent to Mr. Sassoon David Sassoon mentioning what had taken place; he might reply "never mind the difference, take the land"; or he might say the discrepancy was so serious that he would have nothing farther to do with it.  As to the rents, they would, of course, be refunded, if the contract of sale were thrown up.  If Mr. Barton's object were to obtain a speedy settlement of the matter, he must say the very worst means had been chosen, in bringing it into Court.  If judgment were given in his favour, the result would be that the property would be tied up for the next three years, and Dr. Barton would, in the end, be saddled with all the costs.

SOLOMON DAVID SASSOON: - I have acted as agent for Mr. Sassoon in London, in relation to the sale of Dr. Barton's property.  My authority was by letter only.  The original letters written by Mr. Sassoon D. Sassoon are in London.  I was informed by my brother through a Hebrew letter, that the property in question was 13 mow.  I wrote to say I heard it measured about 10 mow; but he answered positively that it was 13 mow; that I was mistaken.  The date of his letter was August 1862.  I had not seen the title deeds when I wrote.  I did not consult a solicitor until Dec. That was when agreement of 20th Dec. was drawn up.  I had not seen the title-deeds on the 20th December.  I got the deeds immediately after the agreement was drawn up from the Consulate.  I wrote immediately afterwards to Mr. Sassoon in London.  I believed the representation in the title-deed, that the property contained 13 mow. I got the impression as to its being 10 mow from the Land renters' list.  I did not know till I got the deeds how much was going to be transferred.  It was after I got the title-deeds that I knew that there was a transfer of the 13 mow. But for the subsequent occasion which led me to get the property measured, I should have accepted the amount mentioned in the deeds as correct.  Mr. Barton never told me that the descriptions in the deed were incorrect.  On the 14th May, I was anxious to have the matter closed; and the memorandum in question was drawn up.  Nothing was mentioned about it in the bond or the deed, as drawn up by Mr. Barton's agent.  I remember your telling me that I should have to be particular about the title-deed, as it might be questioned in London.  I said I would leave it in your hands.  After the deed was sent, it came back with the words "more or less" added, and a memo to the effect that Mr. Barton was not bound to certify exact measurement.  It was in consequence of this that I had the land measured.  The land proved about 4 ½ mow short.  Acting as agent, I did not consider I could accept that quantity without consulting my principal.  I have no letter from my brother which would justify me in accepting so short a quantity.  The land measures 8m 3f.  I have been requested by him to be very particular.  I have no personal interest in the matter.  If I act beyond my instructions, I am liable for what I do; and for that reason I decline to accept a short quantity.  I deny any liability in the case.  My principal may agree or may not.  I decline to take any responsibility on myself.  I consider it necessary that a deed of dale should be executed before I can pay the money.  The measurement of one plot was 4m 4f 9l. the measurement of the other was 3.8.1.  This is calculating about 6600 ft. a mow. 

(THE COURT: - The official mow is 7200 ft.)

I have not the original letters of the correspondence between Mr. Barton and Mr. Sassoon.  I am prepared to pay the money, if Mr. Barton will transfer to me the quiantity specified in the title-deeds.

To Mr. LAWRANCE: - I have the letter which my brother wrote to me informing me that he had bought the property from Mr. Barton.  There is nothing in that letter, or the correspondence it contains, which alludes to the measurement of the land.  I wrote the letter to Mr. Tootal two or three days after I received instructions from my brother.  I did not measure the property, because I took it for granted it was per title-deed.  I did not know how much land my brother had bought at first; I have bought land in Shanghai.  I first saw the title-deeds in December 1863.  I was present when the transfer was made in the Consulate books.  When that transfer was made (in July) I knew the title deed mentioned 12-7-1; but did not take any notice of it.  I do not know whether the surveyor has taken in the two roads bounding the property.  My brother told me Dr. Barton was coming to Shanghai; but not that he was coming about this matter.  I was willing to take the responsibility of settling the matter here, if the land had not proved short.  I did not know the measurement at the time I accepted the property.  I did not take the trouble to measure the land between the 3rd May 1862 and the 14 May 1863.  I did take the trouble to collect the rents, I did relet a portion of the property.  The tenants now on the property pay me rent.  I did put up boundary stones.  They were taken away two or three days ago.  Two of them were not stuck on the wall at 11 this morning.  It was on account of the insertion of the words "more or less" that I had the land measured.  Dr. Barton had not received anything on account of the property.  I have received about Tls. 4,500.

To COURT: - I have not power to replace Dr. Barton in possession of the land without authority from my brother in London.

The Court was here adjourned (at 5 p.m.)  till 10 a.m. on the following morning.

3 June.

The Court met at the appointed hour; but after considerable discussion among the parties concerned,

Mr. COOPER announced that it had been agreed to wait till an answer could be received from Mr. Sassoon David Sassoon in London, before taking any further proceedings.

Mr. LAWRANCE said he was empowered by his client to accede to the arrangement, as a part of which Mr. Sassoon had agreed to pay Dr. Barton Tls. 4,000 on account of the rents he had collected.

The Case was accordingly adjourned for five months - till the 3rd November, to allow ample time for the receipt of a reply to Mr. Sol. Sassoon's application to his brother for instructions.


Source: The North-China Herald, 20 June 1863 (and see 13 June 1863)

THE JUDGMENT of the Consular Court in the case of BARTON versus SOLOMON DAVID SASSOON on Monday last, is so conclusive a reply to Mr. Cooper's letter, and so complete a justification of the remarks in our issue of the 6th inst. to which he takes exception, that it hardly required further comment from us.  We cannot say whether Mr. Sassoon's "indignant and emphatic denial" or our "incorrect statements" will have any effect on public opinion; but we regret that after a perusal of the latter, we see no reason to alter any of the opinions we before expressed; especially as the judgment delivered by the Court explicitly confirms them.

In the article to which Mr. Cooper objects, we maintained that Mr. Sassoon's open and marked acceptance of the property was morally and honorably, if not legally, binding; and that he was not justified in thus, at the last moment, repudiating the bargain.  Mr. Cooper admits in his present letter that Mr. Sassoon would not think of denying his acceptance of the property to be binding, "provided Dr. Barton considers himself bound not to sell that which he does not possess."  The question then simply resolved itself into the old one of terms of sale. M If Dr. Barton sold 13 mow of land, he certainly, according to present evidence, sold that which he did not possess; but if, as he asserts and the Consular Court believes, he sold "a plot of ground with a certain number of buildings thereon," he sold what he did possess, and Mr. Cooper's argument turns against himself.

The point dwelt on by Mr. Lawrance in his able speech, as to the interpretation of a contract by the custom of the place where it is to be carried into effect, bears strongly on this important question.  We agree with him in his inference, that the custom of Shanghai should rule in the present truncation; and setting aside all questions as to the understanding which may have existed between Dr. Barton and Mr. David Sassoon in London, regarding which there is no evidence beyond the word of the former, it is, we believe, the custom in Shanghai to sell a plot of ground by title-deed, which the chances are, is incorrect in its measurement, but which is generally unquestioned.  The plot it mentions is sold - not the area.  These points were all brought before the Court in the course of the evidence, and the speeches of the respective solicitors; and after full deliberation, it decided that "the Plaintiff did not sell the land per mow, but in bulk, as a certain property with buildings thereon." This was the only ground which Mr. Cooper advances, as invalidating Mr. Sassoon's acceptance of the property; and this ground, the 9th clause of the judgment, declares it to be untenable.

The second principal point which Mr. Cooper urges in favour of Mr. Sassoon is, that he is not responsible for the delay in conclusion of the sale; which was impossible until the bond in restraint of the erection of buildings on the property was cancelled.  It is with the greatest diffidence we venture to throw doubt on any position taken up by a gentleman of Mr. Cooper's legal acumen; but unless we are much mistaken, Dr. Barton was the only person whom the non-cancelment of this bond could affect.  Our impression is, that bonds of this description are binding on the individual, not the property; and therefore, that, had Mr. Sassoon bought the property and built upon it while the document was still in existence, the penalty for breach of its conditions would have fallen on Dr. Barton.  So far as we understand, the above are the principal points taken up by Mr. Cooper - the validity of Mr. Sassoon's acceptance, and the blame for the delay.  The "statements" we have made in commenting on then may again be "incorrect," but we do not think them so. The most reasonable excuse that Mr. Cooper could have advanced for his client would have been an excessive diffidence in himself and an extreme reluctance to do any act on his own responsibility.

The same hesitation which has characterizes the transaction throughout, displayed itself in the question as to the form of receipt that should be adopted for the Tls. 4,000 which were to be paid to Dr. Barton; and by causing the re-opening of the case, has secured to the latter all the moral weight that a lucid judgment in his favour on every salient point can afford.  In the article to which Mr. Cooper objects, we said we could not "pretend to say whether or not an individual is legally at liberty to repudiate a bargain after having, in so open and marked a manner testified his acceptance of it."  Neither will we pretend to foresee what may be the result of the appeal to Hongkong.  Law and equity are frequently very different things; the Consular Court has endorsed by its decision, the opinion we expressed a fortnight ago, that the latter was in favour of Dr. Barton.  Whether some point may be found, in virtue of which Mr. Sassoon may be held legally justified in repudiating his bargain, it is impossible to say.


Source: The North-China Herald, 20 June 1863


June 15th, 1863.

Before J. MARKHAM, Esq., Officiating Consul.

G. J. W. COWIE, Esq., J. HOGG, Esq., Assessors.


As a part of the understanding on which this case was adjourned at the last hearing, Tls. 4,000 were to be paid by Mr. Sassoon to the Plaintiff.  The parties were, however, unable to agree as to the form of receipt which should be used; and Dr. Barton found it necessary to being the matter again before the Court.

Mr. LAWRANCE: - Was sorry to be obliged to come before the Court once more; but the parties were unable to agree, and he was compelled to do so.  The case had been adjourned till the 3rd November, as a part of which arrangement it had been agreed that Mr. Sassoon should pay Dr. Barton Tls. 4,000 on account of rents he had collected.  Many difficulties had presented themselves in drawing up the form of receipt; but one was ultimately drawn up stating that the payment was on account of rents collected.  Mr. Sassoon objected to these words, and therefore the case was obliged to be brought again into Court.

Mr. COOPER: - Much regretted that they should again have to take up the time of the Court; but so far from Mr. Sassoon being to blame, he had shown every desire to come to an agreement.  It had been understood that Tls. 4,000 were to be advanced to Dr. Barton, but it was to be without prejudice to either party.  When they were unable to agree because of the words "on account of rents," which Dr. Barton wished to retain in the receipt, Mr. Sassoon at once placed the matter in his (Mr. Cooper's) hands; and he had made the following proposition.  Mr. Sassoon was willing to accept a measurement which should take in one half of the roads, and Dr. Barton should pay the deficiency between the total of that measurement and the amount specified in the title-deed.  This proposition was a most fair one, and he must express his astonishment that it had not been accepted.

The COURT: - Were certainly under the impression that the Tls. 4,000 were to be paid on account of rents.

Mr. COOPER: - It was to have been paid out of rents; but Mr. Sassoon objected to the words "on account of rent" being inserted in the receipt.  As soon as the matter came to be settled, Dr. Barton would claim the rents if this were allowed to pass, on the strength of the receipt.  They could place no reliance on Dr. Barton; it was his fault, for cavilling about the receipt, that the matter had not been settled.

THE COURT: - Thought that the cavil was on Mr. Sassoon's part, and w as rather inclined to look on his behaviour in the light of contempt.

Mr. COOPER: - Was exceedingly sorry that the Court should look on it in that light; he was sure his client would be most happy to agree to any feasible suggestion the Court would make.

THE COURT: - Simply suggested that Mr. Sassoon should agree to the form of receipt proposed.

Mr. COOPER: - Could not permit his client to do so.  The case must, then, go on; and Dr. Barton could go to Hongkong if he liked.

Mr. LAWRANCE: - Agreed that it would be best of the case should go on.

Mr. COOPER: - Wanted to reproduce Mr. Sassoon, whose examination had been finished at the last hearing of the case.  The Court objected that it would be a very irregular proceeding; but on Mr. Cooper mentioning that he only wanted him to put in a letter from Mr. Sassoon's brother to Mr. Joseph of Shanghai, stating that he had bought Dr. Barton's property, said to be about 13 mow, at length permitted it.

S. D. SASSOON: - I hand in an extract from a letter from my brother dated July 10th 1862, containing the following words -

The land and buildings altogether measure 13 mow.  I again asked him and he said it was above 12 and nearly 13 mow.

Mr. COOPER: - Wished to continue the examination; but objection was taken; and the Court again remarked that it considered it entirely the fault of defendants that the case was again come into Court.  However, Mr. Cooper continued:

Since the last adjournment, I have received the receipt handed in, drawn up by Dr. Barton.  I am aware that Dr. Barton has set up a claim for thr rents on a previous occasion.  That is my reason for objecting to the words "on account of rents received by the said Solomon David Sassoon."  I also object to the clause making the refundment dependent on the settlement of "disputes now existing of that may hereafter arise."  Dr. Barton objects to the words, "and S. D. Sassoon is entitled to hold the deed under lien for advances."

THE COURT: - Again objected to its time being taken up by bathe continuation of this irregular evidence.  Mr. Cooper said he wanted Mr. Sassoon's evidence, regarding the offer to allow the property to be measured from the crown of the roads, to be heard; the case was not the fault of his client.  But on Mr. Lawrance saying he should produce Mr. Tootal as counter-evidence, to show that there was a private agreement that this offer should only be considered on consideration of a settlement of the affair of the Tls. 4,000, Mr. Cooper gave up the point.

A discussion next arose as to Mr. Knevitt's evidence regarding the measurement of the land.  Mr. Cooper wished to know whether the plaintiff would accept his measurements as correct.  Mr. Lawrance said he would take them for what they were worth; but of course would not accept them as binding.  Mr. Cooper mentioned the gist of what Mr. Kneviit's evidence would be; and it was at length decided to send for that gentleman.  Pending his arrival,

Mr. Cooper stated: - I have acted in this case on behalf of Mr. Sassoon.  In December last, I was instructed by Mr. Sassoon to apply to the Consul, and through his assistance to obtain a settlement of this affair.  It was then ascertained that the purchase could not be completed in consequence of the property being encumbered with a bond given by Dr. Barton to the extent of L. 3,000 in respect of the right to build houses upon it of a certain description.  There was also a dispute as to who was entitled to receive the rents.  Through the courtesy of the late Consul it was ultimately arranged that, as Dr. Barton, the purchaser, and the party interested under the bond were all in London, the two matters in dispute could be settled there.  And accordingly a memo of agreement was drawn up, which was put in evidence by Dr. Barton.  In May last, it was agreed that the parties should meet at my office to arrange the matter finally.  A memo of the 14th May was drawn up by Mr. Tootal on behalf of Dr. Barton, both being present.  I added the words - "the bond to be cancelled and a deed of dale executed," being as I considered the basis of the agreement between the parties.

Mr. LAWRANCE here took a legal objection that Mr. Cooper was not entitled to give parol evidence as to as contract where there was no ambiguity, and quoted the following passages from Chitty on contracts in support of his assertion.

Quoties on verbis nulla est ambiguitas, [ial] nul [u] expositio verba fiends est,  where, therefore, there is no ambiguity in the terms used, the agreement or instrument itself shall be the only criterion of the intention of the parties; and this principle excludes parol evidence contradictory to the writing itself, even although such evidence might clearly show that the real intention of the parties was at variance with the particular expression used in the written agreement.

Where an action is brought against a party who appears on the face of the instrument to be personally a contracting party, he cannot discharge himself by evidence that he contracted as agent merely.

The Court supported him, and desired that Mr. Cooper would not allude to the contract.

Mr. COOPER continued: - At that interview, Mr. Sassoon was asked by Mr. Tootal whether he had any interest in the property, and replied that he had not.  I then prepared a draft deed and submitted it to Dr. Barton's solicitor.  It was returned to me, qualified by the words "more or less."  Before settling it, I submitted it to Mr. Sassoon, who resolved to measure the land.  In consequence of deficiency found upon measurement, Mr. Sassoon asked me how far he would be justified in acting in the matter.  I told him that, judging from the correspondence, the proper course was to refer it to his principal.  I put in the draft deed.

To Mr. LAWRANCE: - When the contract of the 14th May was entered into, the measurement was not referred to because I had the deeds which contained the measurement.  I don't think Mr. Sassoon had any more reason to measure the property than Dr. Barton had.  I should have considered the agreement of the 14th May binding, subject to the title-deeds proving that which they were represented to be.  I believe it is usual to buy property by title-deed in Shanghai, and not by mow.  But I do not tbhink any one would be so foolish as to accept a title-deed if they found it incorrect.  Mr. Sassoon claimed to be entitled to the loss which has arisen since the acceptance of it, in consequence of depreciation in value; he having had an offer whereby he could have leased the property in a sum greater than he could then do so.  But in consequence of the property not being released from the bond, he could not enter into a lease.  As it appeared that Mr. Sassoon had not regularly notified the offer to Dr. Barton, I recommended that it should not be pressed; and it was given up.  I am not aware that any objection was ever raised to Mr. Sassoon to Mr. Tootal to the existence of the bond.  I think if Dr. Barton never found out the defective measurement, it is unreasonable to suppose that Mr. Sassoon should have done so.  From what I have seen in Shanghai, I think I should measure land before the expiry of twelve months, if I were purchasing.

TO COURT: - Mr. Sassoon did not say any thing about the land being 12 mow when he instructed me to draw up the deed.  When the deed was returned altered, I suggested that it would be wise to measure the land.  I was aware that the land had been accepted by Mr. Sassoon and the rents received by him, before I advised him to have the land measured.  I consider there was always an implied warranty on the part of Dr. Barton that the descriptions contained in the title-deed were correct.  The deed of sale is merely this implied warranty reduced to writing.  There is always an implied warranty, ion the sale of land, that it is of the description given in the title-deeds.

Mr. KNEVITT: - I am an architect and surveyor.  In the month of May last, I received instructions to measure some land belonging to Dr. Barton.  It was after the 14th May, I believe.  I remember beinbg asked to draw up the plan so as to enable Dr. Barton to go away by the mail two days after.  Dr. Barton went with me and pointed out the lots.  I calculated at 6,600 feet per mow.  The open lot is 4m 4f 9l; the small lot covered by buildings measures 9m 8f 1l;  The total is 8m 3f.  This measurement does not include half the roads.  I have since measured half the roads, which amounts to 1-2-8-6, raising the total to 9m 5f 8l 6h.  I am quite sure that this measurement is correct.

To Mr. LAWRANCE: - I think Dr. Barton did say he did not particularly care whether the land were measured or not.  He pointed it out as the lot.

To COURT: - I have no proof that the land measured was what is represented by the title-deed.  I measured by what was pointed out to me by Dr. Barton and Mr. Sassoon.  I had nothing to do with the title-deed.  I know nothing about it, and have never seen it.

The COURT here suggested that the roads might never have been given over to the public; and that the whole of them might belong to the property.

Mr. LAWRANCE, in summing up for the plaint, said:- Under any other circumstances, he should not have felt justified in troubling the Court with any observations, having regard to the time that the case had already occupied and the attention with which they had investigated its merits.  But it had taken such an extraordinary turn by having been brought before the Court a second time, on account of the extreme suspicions of the defendant, that it was his duty to submit on behalf of Dr. Barton, that the question of measurement had really nothing to do with the case.

He must go back to the acceptance of the 13th May 1862.  The document drawn up on that date, signified Solomon Sassoon's acceptance of the property, as his brother's agent, mentioning it as Lot 177.  This was enough of itself to bind his brother.  But in addition to this signification of assent, defendant had shewn extreme anxiety to get possession of the deeds; and on the 13th July had entered on receipt of the rents.  He had then distinctly told Mr. Tootal not to renew the leases, but had renewed them himself, and had been in receipt of the rents every since.  He contended therefore that it did not lie in Mr. Sassoon's mouth to object to the bargain now.  He had done amply enough to testify his acceptance of the property as his brother's agent; he had put up boundary stones, and given notice to the tenants to pay their rents to him.  he had, in fact, done every thing which, between man and man, could be thought to bind an agreement.

A great deal had been said about correspondence.  Mr. Cooper said the law of the country bound parties who made an agreement; and deduced from this, that as the contract was made in London, the law of London was binding in the present instance.  He differed from this view; and thought it was the law of the place where the contract was interpreted which should be taken.  If, therefore, Dr. Barton had been suing on the contract entered into with Mr. Solomon David Sassoon, he would still have been entitled to an interpretation of it by the custom of Shanghai.  Mr. Solomon David Sassoon had never taken the trouble to get the land measured, from May 1862 to May 1863; and all correspondence shewed that it never had been sold by measurement.  The idea would never have entered his head had he not put his case into Mr. Cooper's hands; and he (Mr. Lawrance) was sure that, if Dr. Barton had tendered an ordinary transfer to Mr. Sassoon, the question never would have arisen.  Mr. Cooper no doubt had done what he thought best; as he found his client had been accepting property, the title of which was defective.  He might or might not be right in saying that he had passed a title so faulty that any solicitor in London would have rejected it; but he knew the property was sold according to the custom of Shanghai - not of London.  Mr. David Sassoon had bought it according to that custom, and Solomon Sassoon had accepted it; it was idle, it was worse than idle, it was dishonest, to come forward at the last moment with the objections advanced, and repudiate the bargain.  If men were to be allowed to repudiate their bargains on such grounds, all confidence in such transactions must be at an end.

There as the actual written statement of acceptance and not a loophole for escape.  Why did not Mr. Solomon Sassoon take objection to the measurement in July 1862; he had admitted in his evidence that he had at that time seen the measurement mentioned in the title deeds, but had never noticed it.  Mr. Cooper had admitted that his client never said anything about measurement in the course of his instructions.  But he had said, also, that there was an implied warranty that the area of the property corresponded with that mentioned in the title-deed.  This involved the question as to whether the purchase was to be interpreted by the custom of London or of Shanghai.

(Mr. Cooper here took credit for not having asked for an adjournment for the production of Mr. David Sassoon's evidence, which would have affected this point, to save delay.)

It mattered not; the argument of the plaintiff was that, if there had been a deficiency of six mow, it would not have affected the validity of the bargain.  He had sold the Lot registered; and Mr. Sassoon had accepted it as registered; had put up boundary stones, granted leases, received rents, and could not at the last moment, refuse to carry out the purchase.  By every law, legal or equitable, he was bound.  If Mr. Solomon Sassoon had neglected to speak to Mr. David Sassoon of Shanghai custom, his remedy lay against the former, not against Dr. Barton.  Again, Mr. Solomon Sassoon has said that, though his brother had told him that Dr. Barton was coming to Shanghai, he had not told him what for; what possible object could Mr. David Sassoon have had in mentioning the matter, unless he said something of the object of the visit?  However, Dr. Barton had come out, and had seen Mr. Solomon Sassoon.  If the latter had not sent power to act for his brother, why did he not say so at the time?  Instead, on the 14th, he deliberately entered into a contract, not as agent but as principal; and undertook to complete the transfer.  Even Mr. Cooper would admit that it had never entered into his head that Mr. Solomon Sassoon had not full power.  If he had not had so, would Mr. Cooper have allowed him to sign that contract?  He would now submit one or two extracts regarding the law of agency, which bore upon the case

Wherever a party undertakes to do any act as the agent of another, if he does not possess any authority from the principal therefor, or if he exceeds the authority delegated to him, he will [in some form of action] be personally responsible therefor to the person with whom he is dealing, for or on account of his principal.

Every person so acting for another, by a natural if not by a necessary implication, hold himself out as having competent authority to do the act; and he thereby draws the other party into a reciprocal engagement.

Whether Mr. Solomon Sassoon had been labouring under a mistake or not as to his authority, he could not say, and the same authority laid down that this did not matter.  He had certainly drawn Dr. Barton's into a "reciprocal engagement", and led him to believe that he was acting on behalf of his brother, which was all that the law required to render him responsible.

So if an agent should in his own name, but on behalf of his principal, enter into an agreement to execute a lease of lands to his principal, he would be held personally responsible for the execution thereof.

This was just what Mr. Sassoon had done; he had entered into an agreement in his own name to transfer land, and had made himself liable whether acting as agent or principal; and the remedy lay between Solomon Sassoon and David Sassoon; Dr. Barton could not suffer.  He would add a third quotation which was still more important.

If the agent is clothed with proper authority, his acts bind the principal, although executed in his own name.  The only difference is that, where the agent contracts in his own name, he adds his own personal responsibility to that of the principal who has employed him.

Mr. Cooper had put it to the Court as though the case were a trumpery one; as though Dr. Barton had come out for his own pleasure, and finding it convenient to have the case settled had attempted to get it settled by bringing it into Court.  He had held out the great bugbears of Hongkong and Chancery; but he (Mr. Lawrance) was sure that if the verdict of the Consular Court were in Dr. Barton's favour, it could on no grounds be upset by any other Courts. Mr. Cooper had held up Dr. Barton as an object of charity; but he did not require feelings of that sort.  He did not come "with bated breath and whispering humbleness;" he came forward to assert his just and legal rights, was competent to assert those rights; and was sure that the confidence he placed in the Court would not be mistaken.  He (Mr. Lawrance) might have used harsh expressions as to Mr. Sassoon's conduct, as Mr. Cooper had sometimes done bin similar instances; but he did not approve of the practice, and preferred to leave the matter to the judgment of then public.  He repeated that, if men were allowed to enter into contracts as principals, and to throw them up on such slight pretences, no contract in Shanghai or elsewhere could be safe.  He could not understand why Mr. Solomon Sassoon accepted responsibility on one occasion and not on another; he had acted, throughout, in accordance with law, and possessing powers which he now repudiated. He thought the case was fully established, that Mr. Solomon Sassoon had rendered himself personally liable; and he was sure that the judgment of the Court would be that he was so.

After much deliberation, the Court delivered the following judgment:-

1stly. - That the defendant Solomon D. Sassoon had sufficient authority from his brother Sassoon D. Sassoon to enter into and complete the contract of the 14th May, 1863, for the purchase of the land in question.

2ndly. - That the Plaintiff did not give any warranty express or implied as to the actual area of the Lots.

3rdly. - That the Plaintiff did not sell the Lots "per mow" but in bulk, as a certain property with buildings thereon, and accordingly the objections taken by defendant in his letter of the 27th May 1863 are untenable.

4thly. - That the Defendant, by accepting the customary transfer of the property at the British Consulate so far back as the 28th July and 20th December 1862, without any stipulation whatever as to the measurement; and by entering into the contract of the 14th May 1863, by collecting the rents, renewing leases and exercising fivers other acts of ownership, satisfied this Court that he, the defendant, bought the property, and the Court considers that the Defendant is not justified in withholding the payment of the purchase money.

5thly. - That the Plaintiff has performed his part of the contract.

6thly. Judgment is therefore given for the Plaintiff with costs.

Source: The North-China Herald, 10 October 1863


BY the subjoined extract from the Hong-kong Evening Mail of the 17th ultimo, it will be seen that the decision given by Mr. Markham in this case has been confirmed.  The original trial appeared in the North China Herald of June 6th and 26th.

In the appeal case of Sassoon v. Barton brought up from the Consular Court at Shanghai, the ACTING CHIEF JUSTICE delivered judgment this morning in the following words:-

The case of Sassoon appellant v Barton, respondent, was argued before me some days back.  Various points were taken on behalf of the appellant, all of which I disposed of in the course of the argument, save one, which was this - whether, having regard to the language of the document of the 14th May in the present year, considered in connection with the other circumstances of the case, it was competent to the appellant to refuse to complete refunding the property less in quantity than he expected.  I am clearly of opinion that it was not.  Fraud is not suggested, and in the absence of fraud, matters had gone too far to admit of revocation; the property in question had been accepted by the appellant, it had been dealt with by him, he had been in receipt of the rents, and I further concur with the Consul in thinking that the land had not originally been sold by measurement, but by piece.  The consequence therefore is that the judgment of the Consular Court will be affirmed, and the appeal dismissed with costs.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School