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Colonial Cases

Jenkins v. Smith, 1876

[land law]

Jenkins v. Smith

United States Consular Court, Shanghai
Myers, 27 September 1876
Source: The North China Herald, 5 October 1876

 

U.S. CONSULATE-GENERAL.

Shanghai, Sept. 27th

Before J. C. MYERS, Esq., Consul-General, and F. D. HITCH, R. G. LOW, G. D. WEBB, Associates.

F. H. B. JENKINS v. E. M. SMITH.

   Mr. EAMES appeared for the plaintiff.

   Mr. HANNEN appeared for the defendant.

   This was an action for the delivery of the original Title Deed of the Wei Yuen property, at the junction of Canton and Honan Roads, and to recover damages for the same being withheld. ...

[Not transcribed.]

Judgment.

... The plaintiff says that he considered himself bound to the vendee to make a proper transfer and clean Title Deed.  He certainly has done so.  Under great difficulties and delay he has succeeded in complying with his part of the contract.  But these delays and difficulties were in no degree caused by the vendee, the defendant.  It appears that Messrs. Shearer and Wardell, who were and are beyond the jurisdiction of this Court, probably for the reason that they had no beneficial interest in the estate, declined to lend any assistance to the vendor for the purpose of clearing his title, compelling resort to this Court for the purpose of complying with his obligations.  The phrase in the conditions of sale, in fifth paragraph, "all expenses of transfer to be borne by the purchaser," is construed to include only the Consular fees.  It is claimed, by witnesses of experience in the sale of real estate, that this clause does not embrace any other costs.  As to the claims of damages, it would seem and the Court so believes, that they were caused by the inability of the plaintiff, during the time stated, to comply with his engagements, and that none of the embarrassments, delays, and costs were caused by any action the part of the defendant.

Suit dismissed with costs.

JOHN C. MYERS, Consul-General, acting Judicially.

Assented to, F. D. HITCH, S. W. WEBB. E. G. LOW, Associates.

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