Hang Hing Hong v. Dawnlight Press Ltd and Another
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IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION NO. 30 OF 1972 ----------------- BETWEEN
----------------- Coram : Briggs, J. in Court ------------------------ J U D G M E N T ------------------------ 1. This is an action to recover the balance of the price of newsprint to the First Defendant Company. The sum has been agreed, subject to liability, at $21,749.60. In this case there is only one point at issue. Whether or not a certain document is a guarantee. 2. The Plaintiff sues the first Defendant as the principal debtor and the second Defendant as a guarantor. Judgment has been signed against the first Defendant. But it has proved to be an empty judgment. 3. On October 28th 1968 the second Defendant approached the Plaintiff Firm through their sales manager with the intention of purchasing newsprint in order to print a newspaper. The newspaper was to be published by a Company called Dawnlight Press Co. Ltd. The second Defendant told the sales manager that this Company had not then been incorporated. In fact it was incorporated on the following day. The second Defendant was well known to the sales manger andhad done business with the Plaintiff for a considerable time before. 4. The salesmanagerreferred the matter to the managing partner of the Plaintiff who agreed that his firm would supply newsprint to the secondDefendant’s new Company provided that the second Defendant would personally guarantee payment. 5. The second Defendant therefore composed and signed a form of guarantee. This has been put before the Court by consent and two translations have been provided. They read as follows:-
The second translation reads:-
6. In my view this is clearly a guarantee. But evidence was led by the Plaintiff to put the matter beyond or peradventure. 7. Both the managing partner and the sales manager of the Plaintiff firm deposed that the guarantee had been sought, agreed upon by the second Defendant; and that it had been relied upon and acted upon. 8. The second Defendant did not give evidence, indeed no evidence was called for the Defence. It was urged on the second Defendant’s behalf that the document was not a guarantee at all, that the second Defendant signed it as a principal debtor. I disagree with this interpretation. 9. The second point taken was that the document does not see the correct title ofthe first Defendant. It refers to Dawnlight Press and not to the Dawnlight Press Ltd. There is nothing in this point. The document was a home made document and the parties knew very well that it referredto the Company which was to be formed. The Plaintiff did in fact supply the first Defendantwith newsprint for a considerable period. 10. The second Defendant also made the point that there was no mention of any consideration on the face of the document. I do not see how he can take this point now. It is clear that he has agreed that newsprint was supplied and partially paid for. And an agreed balance is admitted owing to the Plaintiff. 11. There is no defence to this action and there must be judgment for the Plaintiff against the second Defendant for $21,74.9.60 with costs. The sum will bear interest at 8% per annum from the date of the writ until payment. 12. The second Defendant is to have 14 days in which to pay.
Jackson-Lipkin (M.K. Lam & Co.) for Plaintiff Martin Lee (Samuel Soo & Co.) for Defendants |