George Bern v. First National City Bank
Read the full judgment text of CACV 2/1975 on BabelCite. This Court of Appeal judgment.
1. In this case the appellant sued his bankers, the respondent, for $5,840 being money paid by the respondent in respect of four cheques which were forgeries. The trial judge awarded the appellant $3,000 and this is an appeal against that decision, the appellant claiming that judgment should have been given for the whole sum claimed, namely $5,840.
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CACV000002/1975 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 2 OF 1975 -----------------
Coram: Briggs, C.J., Huggins & McMullin, JJ. Date of Judgment: 9th October, 1975 ----------------- JUDGMENT ----------------- 1. In this case the appellant sued his bankers, the respondent, for $5,840 being money paid by the respondent in respect of four cheques which were forgeries. The trial judge awarded the appellant $3,000 and this is an appeal against that decision, the appellant claiming that judgment should have been given for the whole sum claimed, namely $5,840. 2. The defence to the appellant's claim admitted that the respondent bank had debited the account of the appellant with the amount claimed but did not admit that the cheques were forgeries. The defence also stated that the appellant was estopped from setting up the cheques as being forgeries and gave four reasons for this. 3. At the trial, this defence was divided into two parts. It was alleged that there was a settled account between the parties. The respondent bank also pleaded estoppel by reason of the appellant's negligence. 4. The trial judge dealt with both these possible defences and in each case found in favour of the appellant specifically. 5. However, he then proceeded to consider the possible defence of the contributory negligence of the appellant and on that ground and on that ground alone awarded the appellant $3,000 of the sum claimed. 6. Whether or not the defence of contributory negligence lies in a case of this nature, which is founded in contract is a moot point. But it need not detain us here. It is enough to state that that issue was never pleaded in the district court and that neither party had an opportunity to address the court thereon. The matter was raised by the trial judge himself in his judgment and he did not hear the point argued. 7. In the circumstances this appeal must be allowed. There will be judgment for the appellant for the full sum claimed, namely for $5,840, with interest at 8%. The appellant is to have the costs together with his costs on the appropriate scale in the court below.
Representation: Mills-Owens (J.S.M.) for appellant. C. Ching, Q.C. & Bokhary (Wilkinson & Grist) for respondent. |