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Colonial Cases

Hanbury v. Pickwoad, 1863

[conveyancing - appeals]

Hanbury v. Pickwoad

Supreme Court, Hong Kong
22 July 1863
Source: The North-China Herald, 8 August 1863

 

SUPREME COURT - APPELLATE JURISDICTION.

Wednesday, 22nd July 1863.

(BEFORE ACTING CHIEF JUSTICE BALL.)

HANBURY Appellant vs. PICKWOAD, Respondent.

THIS was an action for damages for breach of contract in a sale of land, appealed from the Consular Court at Shanghae.  The case was tried in the Consular Court on the 7th day of April, before J. Markham, H.M.'s Vice-Consul, and two assessors, the plaintiff (Pickwoad) suing the defendant (Hanbury) for that he the said defendant, in or about the month of October, 1862, contracted and agreed to sell to the plaintiff a certain interest in four mow three fun of land situate at Shanghae, for the sum of Taels 5,297.6, and that the plaintiff has always been ready and willing to pay the purchase money, and perform his part of the contract, yet the defendant has refused to execute and perform his part of the same, whereof the plain tiff claimed damages for breach of contract, Taels 3,567.30.  A verdict was given for the plaintiff with costs.

Mr. Pollard for the Appellant.

The Attorney General for the Respondent.

Mr. Pollard asked the Court to reverse the verdict of the Consular Court at Shanghae; and if the verdict of the Consular Court must stand, he asked his Lordship to reduce the amount of damages. The principal grounds were, firstly, that the verdict was against evidence, as the evidence showed that there was both a contract to sell land which the appellant had, but a contract that he (the appellant) would induce another person to sell land, and that was no contract under the statute of frauds by which the Appellant could be charged; secondly, the non jointure of one Latimer with the plaintiff (respondent;) thirdly, that there was no contract irrespective of the statute of frauds, in that there was no such proposal and acceptance as to make a contract. 

These were the principal points on which the case was appealed; and there were minor points - the matter arose on a contract in which judgment had been recovered; there was a compromise, as the evidence of Thomas Hanbury given before the Consular Court, shows, his words being

This case was decided against me.  I appealed against the decision; and it has been reversed in Hongkong, and I have received the 4 mow 3 fun from Her Majesty's Consul.

The Attorney General said that he relied upon Mr. Hanbury's letter of the 17th October, 1862, and Mr. Pickwoad's letter of the 1st November, accepting the offer.  And he would show that there was a tender of the money on the 190th November.

Mr. Pollard said that if those letters were an agreement for anything, it was to compromise matters then in litigation - that compromise was not carried out, and the litigation was.  Lastly, there was no contract because there was no consideration.

The evidence given before the Consular Court at Shanghai, which we published in April last was here read; after which,

HIS LORDSHIP asked Mr. Pollard of there was no means of settling the case now, as all this trouble seemed to have arisen on a very slight mistake - the marking of a letter private, and but for which the case would have been settled.

Mr. Pollard said there was no chance for settlement.  Pickwoad wanted Hanbury to pay him Tls. 3,567.30 to settle, and Hanbury had paid $20,000 to Ku Yai for the land.  Ku Yak had got all the money, and Ku Yai, if any one, was the person to pay Pickwoad the money.

Reference was here made to the letters referred to in the foregoing evidence, when,

Mr. Pollard opened his argument by narrating the facts of the case and for which he said he did not travel much out of the record.  A Chinaman at Shanghai named Ku Yai was the owner of a piece of land, and Hanbury, wishing to purchase the land, registered an application for it at the Consulate, in conformity to the Land Regulations at Shanghai.  Pickwoad and Latimer also sent in an application for the same piece of land, but they said that their application did not cover the same piece of ground that Hanbury's application did.  Hanbury said it did cover the same piece of ground.  [If it] did, Hanbury has a right of preemption.  Hanbury then brought an action against Pickwoad and Latimer, and the Consul held that the land not in Hanbury's claim, and so decided.  Hanbury thereupon lodged an appeal to this Court, and Consul Medhurst, in the course of his duty, tried to settle the matter.  The Consul was not bound to do this, but by the Order in Council recommended to do so, and he very properly tried, to settle the matter amicable, and failing in this the appeal went on.

By the decision of the Consular Court, Hanbury was prevented from getting the land.  He had already made an agreement with Ku Yai to purchase it, in ignorance of Pickwoad's application.  The Consul in these cases applied to the Taotai for a Chinese deed, that is translated, and then an English deed is made out.  The agreement (and which was signed in duplicate by Ku Yai) was as follows:-

Purchased of Ku Yai, a piece of land situated near the Five Court road, measuring about four mow three fun, at Tls. 2,000 sycee silver per mow if 6,000 square feet English.  The purchase money I engage to pay on receipt of deed in English in my favor from H.B.M.'s Consul.

(Signed) THOMAS HANBURY.

So that there was a contract to buy and sell on certain conditions, but on account of the Consular decision the contract was annulled.  Hanbury in his evidence said that the contract was cancelled immediately on the decision of the Consul, but Hanbury still had an application which gave him preemption, and said, I will appeal, and then if I succeed I will go to Ku Yai and buy.  After the decision of the Consul, and the annulment of the contract.  Hanbury had no interest in the land up to the date of his appeal here.  On the 24th September, 1862, the cause was tried at Shanghai, and on March 3rd that judgment was reversed in Hongkong. 

The learned counsel asked his lordship to look at the letter of the 17th October, and he would see that Hanbury avowed that he had no interest in the land.  This letter was as follows:

My dear Mr. Medhurst, - I will bring Ku Yai again with pleasure, if you think it of any use; but he is determined no to lose money by letting Mr. Pickwoad have the land at less than cost and interest, and I have before told him he is perfectly right not to take loss.  The ultimatum therefore is

M. 4 3 at Tls. 1,100 Tls. 4, 730

12 months interest at 1 per cent 567.00

Tls 5,297.60

On receipt of a cheque for this amount I am to hand to Mr. P. the Chinese deed for mow 4.3.  Please do not forget what I mentioned the other day at the trial, viz: that in addition to the mow 4.3, I held a deed for mow 2 adjoining mow 4.3.  This 2 mow is the frontage to the street at the North, it has never been sold, and Ku Yai has nothing whatever to do with it.  Yours truly, (Signed) T. Hanbury.

But he is the depositary of the deed, and he tells Mr. Medhurst not to forget that he owns 2 mow adjoining the 4 mow; and upon receipt of that letter Mr. Medhurst tells Pickwoad that he had better close, with whom?  Not with Hanbury, but with Ku Yai, at once, otherwise he can't prevent Hanbury's appealing.  It is note 11, and is as follows,

Private. My dear Mr. Pickwoad. - I think you had better close with Ku Yai's offer and put an end to the dispute.  If you do not I shall be unable to prevent Hanbury's appealing; and the question may be interminably lengthened out.  Yours truly, (Signed) W. H. MEDHURST.

31st October, 1862.

And what is Mr. Pickwoad's answer?  He says, in his note marked "private,"

My dear Mr. Medhurst, I return Mr. Hanbury's characteristic note and, but for the trouble you have already had in this matter, I would refuse his offer.  If a civil action will be against Mr. Hanbury personally, I will, on return to Shanghai of my solicitor have him served with notice in due form, - Yours very truly, (Signed) EDWIN PICKWOAD.  1st November, 1862.

His lordship asked the Attorney General if that was the acceptance upon which he relied?

The Attorney General said yes.  It was an acceptance by the party to be charged.

Mr. Pollard proceeded to show that Pickwoad himself knew the position of Hanbury in the matter.  He read the letter of 6th October, before the date of the contract, which was this:-

Shanghae, 6th October, 1862.:- Sir, - Referring to the late action of Hanbury vs Pickwoad and Latimer, I am sorry to inform you that I have altogether failed to induce Mr. Hanbury to allow Ku Yai to come to any amicable terms in reference to the land which it was shewn he had purchased over my head in violation of the land regulations.  I have therefore no alternative but to enter an action against Ku Yai, which I hereby request the favor of you to have recorded in the Consular Court, for the pecuniary loss that his acts have occasioned me.  I shall nevertheless be willing to withdraw it if, upon an interview with you to the matter, he is prepared to make reparation upon the liberal terms offered by me.  Enclosed is a statement for the amount claimed by Mr. Latimer and myself.  (Signed) E. Pickwoad.

W. H. Medhurst, Esq., H.M. Consul.

And the statement enclosed begins,

We claim against Ku Yai for loss sustained by his having purchased a certain plot of ground in the [???] zar, etc.

His Lordship asked the Attorney General if he would not have some difficulty in the face of this letter?

The Attorney General said he would be able to show that Hanbury could have performed the contract in January.  Hanbury had possession of the land.  No doubt it was very amusing that Pickwoad should say that he had a claim against Ku Yai, and Pickwoad may have thought at that time that he had some claim.  But, of course, he did not know, and has since acted upon more correct advice.

Mr. Pollard would now read letter No. 13 which was as follows:

Shanghae, 22nd November, 1862.  John Markham, Esq., H.B.M.'s vice-Consul, Shanghae. Hanbury vs. Pickwoad and Latimer.

Dear Sir, - On a recent decision of this case in favor of the defendants, the undersigned, Mr. Medhurst recommended us to compromise the matter by a payment to Ku Yai (a Chinaman who had bought the land) of the sum of Tls. 5, 297.60.  As we were quite willing to be bound by Mr. Midhurst's views, we made up our minds to pay this amount, though a larger sum than was specified in the Chinese deed handed over to Mr. Hanbury by Ku Yai.  In pursuance of our willingness thus to close the case, we sent for Ku Yai on several occasions, desiring him to call on Mr. Latimer to settle the business.  The last time we so sent for him was on the 10th November, when he sent for a man to see Mr. Latimer, who in return sent a verbal message (interpreted by his Comprador) to Ku Yai informing him that we were ready to pay the money, and that we wished to settle the matter on that day or the following day.  This man promised to bring an answer from Ku Yai, but never returned, and on the morning of the 11th November we received a letter from Mr. Hanbury dated the 10th withdrawing the compromise.  Though we did not consider that we had anything to so with Mr. Hanbury, further than as the mouth-piece of Ku Yai, Mr. Latimer called on him on the 11th, and asked him to allow Ku Yai to close the business and receive the money which we were quite ready to pay to Ku Yai.  Mr. Hanbury requested some time to consider the point, and on the following day offered to receive the money and hand over the tile deed on condition that we signed a joint letter.  Copy herewith marked A.

Now here was evidence, Mr. Pollard said, that three weeks after the alleged contract, Pickwoad was dealing with Ku Yai for the land.

We could not, as a matter of course, sign any condition which Mr. Hanbury chose to propose, and more particularly which would seem to impugn the authority of the Consular Court, as well as to raise up another question entirely foreign to the point in dispute.  As Mr. Medhurst informed us after the trial that we had an action against Ku Yai, and that should we press it he would send him before the Taotai, we consider our acceptance of the promise a concession to Ku Yai, and we did not acknowledge Mr. Hanbury in the matter.

Of course, said the learned counsel, Hanbury had nothing to part with.  It was Ku Yai they wanted to hand over the land, as Ku Yai had promised, but afterwards refused, to do.

As, however, Mr. Hanbury holds the title deeds, (we presume derived from Ku Yai or through his means) we fear that his (Mr. Hanbury's) influence has been brought to bear upon Ku Yai to prevent his attention to our request to come and receive the money.  As we have been guided by the very mild suggestion of Mr. Medhurst for a peaceable settlement of this dispute with Ku Yai, we beg in Mr. Midhurst's absence to appeal to you to protect ourinterests, and we beg to hand you a cheque for Tls. 5,297.60, which we will thank you to pay over to Ku Yai, as he will not accept from us, and in return we shall be obliged by your demanding the Chinese Title deed to be exchanged for your own English documents conveying the land to us in perpetuity.

(Signed) Nicholas Latimer, Edwin Pickwoad.

Mr. Pollard said that was his case.  The Respondent never had a claim against his client at all.  There was no consideration.  Hanbury had nothing to sell.

His Lordship asked if the point that it was not in the stature of frauds was taken in the Consular Court?

Mr. Pollard said it was not.  He submitted that all the essentials were wanting to make a contract.  Now as to Mr. Medhurst's position; Pickwoad says that he placed the matter in the Consul's hands -

His Lordship asked the Attorney General if he held that Pickwoad submitted to Medhurst as arbitrator>

The Attorney General said, yes, he would take that as a ground of objection to the appeal.

Mr. Pollard would defy his learned friend to find any appointment of Mr. Medhurst as arbitrator by his client.

His Lordship only threw out the suggestion - he did not think there was any such appointment here.

Mr. Pollard continued his argument.  He held, and did not thing it could be denied, that a proposal might be withdrawn before acceptance.  The letter relied upon was that dated the 17th October; up to the 31st October there was no answer, and on that day Hanbury wrote as follows:-

My dear Mr. Medhurst, - will you please give Mr. Pickwoad notice that if he does not agree this week to pay up the money for the land in dispute during the next week, I shall consider the offer for compromise at an end, and allow my appeal to go forward to Hongkong, being heartily tired of the excessive delay. Yours very truly, and with thanks for the trouble you have taken in the matter.

31st Oct.  (Signed) T. HANBURY.

Mr. Hanbury's interest here is in the 2 mow which Hanbury had already paid for.  In support of the res judicator the learned counsel said there was a case,  Hanbury vs Pickwoad and Latimer, which he must assume was a good case; that was the case to be compromised; negotiations for compromise having fallen through, the appeal went on, and a decision was given reversing the decision of the Consular Court, and deciding that Pickwoad and Latimer had no claim, as the Land Regulations were not valid.  Now the point in dispute was whether Pickwoad had a right to buy.  Ku Yai had bought from the original Chinese proprietors.  Judge Adams said the Land Regulations were bad, but he also said, apart from the Land regulations, I decide that Hanbury has made out a better claim than Pickwoad and Latimer, and that Hanbury is entitled to purchase and Pickwoad and Latimer are not, and the consequence was that on this appeal reaching Shanghai, the Consul then gave the title deed to Hanbury.

As to the compromise, the learned counsel cited Law Reporter, 8 vol. 12, page 135 - "the real compromise, says Tindal, is not the sacrifice of a right, but the abandonment of a claim, and that applied here to the 2 mow which Hanbury had already paid for.  To support a contract there must be a consideration from one to the other, wither from A to B, or which goes out from A or accrues to B.  There must always be one of those three things to make a valid contract. Lastly, as to the amount of damages, the learned counsel cited Thomsett v. Fuller, 21 Law Journal, where it was laid down that a man could only recover damages proved actually lost in purchase of land.

His Lordship said that if the matter rested upon that he should not be very astute to come to a different decision from the Consul and Assessors who were on the spot, and had so much better opportunity of judging.

Mr. Pollard said, certainly, if it was a matter of discretion.  But here Pickwoad estimated the damages on what he had offered to pay on October and what Hanbury had estimated the land to be worth bin September.  There had been no evidence of an offer since the 16th October; on the 24th September, it was estimated by Hanbury at Tls. 2,000 a mow, and at that estimate the land was worth Tls. 8,164.90; and on 17th October Pickwoad only offers to Ku Yai Tls. 5,279.60 and the damage claimed is the exact difference, the land having on Pickwoad's offer decreased in value to that extent.

The Attorney General replied at very great length to the arguments of the opposing counsel.  Taking up the last point first, he reminded the Court that the learned counsel had said in the course of his argument that land in Shanghai was increasing hourly in value -

Mr. Pollard: - From March to September.

The Attorney General said his learned friend did not limit it in his speech.  And that it went on increasing in value was evident from the fact that the value of damages was never once questioned in the Consular Court at Shanghai.  As to the contract, the real contract was between Pickwoad and Hanbury for the purchase of the interest of Hanbury, and there was no compromise of the litigation.  The contract was Pickwoad to Hanbury to sell, and the contract went that Hanbury had a right to sell.  Whether he had or not was not Pickwoad's business.  His learned friend had laid it down that there was no contract because nothing goes out from A or accrues to B, or goes from A to B.  Now there might be a factum not nulum - there might be a contract between A and B mutually to benefit! ... and a good contract.  But these points were only the fringe thrown about the case by the ingenuity of his learned friend to conceal the nakedness of the real argument.  Now the extraordinary feature of this case was, that the first case was decided by Consul Medhurst and two assessors, on the second case by vice-Consul Markham and two other assessors, and both decided that Hanbury was in the wrong.  The defendants were not here to answer the first appeal, and the judge upset the case.  The learned gentleman said that thr two letters - of the 17th October and 1st November, were a complete, perfect and conclusive agreement which it was impossible for Hanbury or Pickwoad to retire from.The Attorney general cited a case to show that the contract dated from the 17th October, as soon as the letter left Hanbury's hands.  The other points brought forward by Mr. Pollard were met in seriatim by able argument and supported by citation of cases.

His Lordship reserved his decision of the case.

Court rose at 6 p.m. - Daily Press.

Source: The North-China Herald, 29 August 1863.

SUPREME COURT.

HONGKONG.

HANBURY versus PICKWOAD.

WE extract from the Evening Mail the judgment delivered by the acting Chief Justice in the above case; the evidence in which was published in the North-China Herald of the 8th instant.

This is an action brought by the respondent against the appellant, and was tried in the Consular Court at Shanghae, before Mr. Vice-Consul Markham, on the 6th April last.  It is alleged in the plaint that the plaintiffs sue the defendant (Hanbury), for that he the said defendant, in or about the month of October, 1862, contracted and agreed to sell to the plaintiff a certain interest in four mow three fun of land situate at Shanghae, for the sum of Tls 5, 297.60; and that the plaintiff had always been ready and willing to pay the purchase money, and perform his part of the contract; yet the defendant had refused to execute and perform his part of the same, wherefore the plaintiff claimed damages for breach of the  said contract, Taels 3,567.30.  The defendant to this plaint, pleads "not indebted" - a plea which, though not in accordance with our system of pleading, leaves open to the defendant every defence of which he would avail himself.  Judgment was given in the Consular Court for the amount claimed.

The case comes before this Court in appeal, and was very ably argued before me on the 22nd ultimo by Mr. Pollard, on behalf of the appellant, and by the Attorney General on behalf of the respondent.

I am of the opinion that the judgment of the Consular Court must be affirmed.

First, it was contended, on behalf of the appellant, that the verdict was against the evidence, the interest not being in the appellant, but in a third party.  To this objection I cannot acceded, for I think it clear that HANBURY had, or professed to have (which to render him liable in this action is the same thing), such an interest at the time of the contract, in the property in question, as to enable him to contract for its sale to PICKWOAD.  KU YAI, at the time of the contract, appears to have been the owner of the property - that is, the real owner; but because the legal estate was vested in him (KU TAI) it by no means follows that HANBURY, having become the purchaser, was not in equity the owner.  I apprehend the relationship of trustees and ces lui que trust  would, under such circumstances, in a very qualified sense, subsist between the vendor (Ku YAI) and the purchaser (HANBURY) and if so, the verdict would be as observed by Lord ELDON, in Paine v. Miller, 6 Ver. 349, the premises "would be vendible as his," (that is, as the purchaser's which is the present case) "chargeable as his, capable of being incumbered as his, they might be devised as his, they would be assets, and would descend to his heir. (See also the judgment of KINDERSLEY, in Dawson v. Solomon, 29 L.J. Chanc. 129.)

But it is said that, after the decision of a Consular Court in a former action between the same parties, the agreement for purchase by HANBURY from KU YAI was cancelled.  I must confess that I am not satisfied with the evidence to that effect, especially as KU YAI was not called in support of it.  But even if it were so, it would not avail, as between the present parties, for it is clear that PICKWOAD knew at one time that HANBURY had an equitable interest in the property, and it nowhere appears in the evidence that he had notice of the agreement which constituted him an equitable owner having been cancelled.  This point, therefore, cannot prevail.

It is next contended that one LATIMER should have been proved as a co-plaintiff.  This object I dismiss, if for no other reason, because it does not appear to have been taken in the Consular Court.

Thirdly: it was argued with very great ability by Mr. POLLARD, that there was no available contract on which the plaintiff could sue.  Upon this point, having regard to the correspondence, the light in which both parties appear to have regarded Mr. MEDHURST, the evidence of that gentleman, and indeed, all the circumstances of the case, I find it difficult to free my mind from considerable doubt whether the Vice-Consul has arrived at a correct conclusion.  At the same time, it must be understood that my state of opinion as to the correctness of the judgment amounts to doubt only.

"I think it beyond question," said Lord Justice KNIGHT (Bruce in The Attorney General v. The Corporation of Beverely, 24 L.J. Chanc. 376,) by whose view of the matter I should be bound, even if I did not heartily assent to it, "that it is generally the duty of an Appellate Judge to leave undisturbed a decision of which he does not clearly disapprove.  I conceive that, in our Court as in the civil law, it is the rule that "gravely to doubt is to affirm."I affirm the Consular decision on this point also.

The remaining points admit of an easy solution.  It was objected in the last place that there was no consideration to support the contract.  This point I notice here, in order that it may be, as in fact it is, embraced by the decision which has been pronounced.  But it was also urged that the matter had been settled in this Court, when certain questions come before it by way of appeal from the decision of the Consular Court in a former action between the same parties.  But this objection was not put forward with much earnestness by the learned Counsel who argued for the appellant; nor indeed, could it have been, consistently with legal principles, inasmuch as the matter on which the appeal was fixed occurred at a period prior to that which is alleged as the date of the contract.

The only remaining point, therefore, for consideration, is the objection that the contract in question, quantum valeat, occurred by way of compromise to a matter then in litigation, and which same matter was subsequently decided in favour of the adverse litigant party.  Even were this the fact, as affirmed in the proposition, which is by no means clear, the argument raised upon it would, in my judgment, be valueless; inasmuch as whether the arrangement were or were not by way of compromise of a matter in litigation, if there were a contract, and that contract were not rescinded before breach, the party not consenting to the rescission is not bound by bit, even though the matter in litigation were subsequently decided in favour of the opposite litigant party.

With respect to the damages, I may here repeat what I have said in a former part of this judgment - and to it may add that having regard to the situation of the parties, the nature of the case, the value of property in the settlement at any previous time, its increase or decrease in value, as well as to the probabilities or improbabilities attached to any particular circumstances - great weight must necessarily be given to the judgment of the tribunal which the law has, in the first instance, selected for its decision; and the Court will not disturb a judgment upon questions of such a nature, unless it entertains a clear and strong opinion to the contrary, which bin the present instance is not the case.

The result, therefore, is, that the judgment of the Consular Court will be affirmed in all points, but I think it is not a case in which judgment should be affirmed with costs.

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