Cheung Yiu Wing v. Blooming Textile Ltd
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CACV000013/1975 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 13 OF 1975 (On appeal from O.J. 1897/74) -----------------
----------------- Coram: Briggs, C.J., Huggins & McMullin, JJ. Date of Judgment: 14th May 1975. ----------------- JUDGMENT ----------------- Huggins, J.: 1. This appeal raises a point which apparently has caused some judicial disagreement in the lower courts of the Colony. The Plaintiffs sued upon two cheques which were drawn in a similar manner. They were drawn on cheque forms clearly printed for the use of a company, the Sun Sang Garment Factory Limited. The name of that company appeared in large letters across the top of the cheque form and in smaller letters underneath the box intended for the amount to be written in figures and when the cheques were prepared that was done with the aid of a machine which impressed the amount of the cheque and at the same time impressed the name of the factory at the beginning of the line. It is perhaps fair to say that the imprint of the company's name at that point is not very clear in at least one of them - and possibly it is open to argument that it was not very clear in both of them. The cheques were actually drawn by two gentlemen who are known to be directors of the company. They did not, at the time that they drew the cheques, add anything to the cheque beyond their signatures. They signed underneath the printed words "Sun Sang Garment Factory Ltd." to which I have already referred, under the box. 2. The action was brought against the company and each of the signatories, the two directors. Judgment was entered for want of appearance against the company and against one of the directors. In respect of that director it should perhaps be mentioned that he had endorsed his name on the back of the cheques. The present appeal is brought by the other director, against whom judgment was entered by the learned judge. 3. The issue in the case is whether or not the Appellant is liable on these cheques. He maintains - and has throughout maintained - that he signed solely in a representative capacity and, that being so, that he is not liable on the cheques. In my view this is a very simple matter. The learned judge referred to s.26(1) of the Bills of Exchange Ordinance, which is in these terms:
(The rest of the subsection is not material in the present case). It is necessarily argued on behalf of the Appellant that the words "Sun Sang Garment Factory Ltd." are words added by the drawer to his signature and that they indicate that he signed for or on behalf of the company or in a representative capacity. Mr. Litton has put his case, for the most part, on a somewhat broader basis for he asked us to say that anybody looking at these cheques would, looking at the whole of them conclude, as the learned trial judge himself concluded, that they were the cheques of the company. Undoubtedly they are written on a form which, all the indicia would suggest, is the property of the company. That in itself is not, in my view, material. There is nothing to prevent, as between the holder of a cheque and the drawer, the drawer's writing a cheque on any form or any piece of paper whosoever's it may be. It may be that the contract between the customer and the bank makes this contrary to their agreement. That is not here or ther for the purposes of this case. As I read s.26 one is not called upon to look at the whole of this document to find out whether they have been signed in a representative capacity. It may well be that for other purposes - in particular under the Companies Ordinance when one is considering the liability of the company - one does have to look at the whole of the document to discover the intention of the parties, but under s.26 we are concerned with the addition of words to a signature and I cannot for my part accept that the large words across the top of the form or the imprinted words on the line intended for the figures can be taken as an addition to the signature or see how it is possible that the words "Sun Sang Garment Factory Ltd." printed on the right-hand bottom corner under the box are words which can be treated as words added to the signature. I asked Mr. Litton whether, even if those words had been written in manuscript by one of the signatories, there was any case which suggested that there was there indicated a representative capacity. He has been unable to draw my attention to any such case and in my view it is unlikely that such a case exists. There is nothing in the mere writing of the name of the company to show that the persons who signed underneath are signing in a representative capacity. Several of the cases which have been cited to us, in particular Leadbitter v. Farrow (1816) 5 M. & Sel. 345, suggest the contrary, and in my view that is enough to decide this case. In H.B. Etlin Co., Ltd. v. Asselstyne (1962) 34 D.L.R. 191 the Ontario Court of Appeal had to decide a case which was very similar to the present, and case to the opposite conclusion. It is, however, to be remarked that the court thought the situation was similar to that under review in Chapman v. Smethurst 1909 1 K.B. 927, in which case no reference was made to the Bills of Exchange Act 1882. Moreover, the court appeared to place weight on a matter which I believe to be of no significance, at least in Hong Kong, namely that a printed line for the signature of the drawer appeared under the printed name of the company: I see no reason to connect that printed line with the name of the company. By his statement at p.192 that
McGillivray J.A. seems to me, with respect, to have overlooked that not everything on the face of a bill is necessarily to be regarded as an addition to the signature within the meaning of the statute. 4. The Appellant has not added any words to his signature which indicate his representative capacity. It is not necessary for us in this case to decide whether the company was a drawer of the cheques or whether the company could be liable as well as the two signatories and, that being unnecessary, I prefer to say nothing about it. All I am saying is that in my view the learned judge came to the right conclusion in holding that this signatory had not sufficiently indicated his representative capacity and that therefore he is liable on the cheques. 5. I would dismiss the appeal. 14th May 1975. Representation: |