Nor does it appear to me to be necessary to base my decision' in this case on either of those two points, This appears to me to be an ordinary contract and all that is necessary to decide is what was the intention of the parties when they entered into the contract.
I propose to found my judgment entirely on the documentary evid-fence produced in the hearing of the ase, as to what were those intentions.
The sale notes for the shares are signed by Odell and Behar the defendants and addressed to E. E. Ellis Esq. the plaintiff, and state that "we have under your instructions and on your behalf" this day sold and have rendered ourselves personally lable" under article 55—to carry out the contract for the sale" The other part of the sale note is signed by E. E. Ellis and addressed to Odell & Behar and states "acknowledging the contract to sell that you have rendered yourselves personally liable to carry out the contract under Article 55" and further states that in the event of Ellis not delivering deli & Behar are authorized purchase in open market on account." That is the initiation of the contract.
'The Customers' Names There is no name of the buyer disclosed on the contract nor anything to show that buyers name had been disclosed. Behar admits that} in regard to some other shares "customers' names disclosed" was written on sale note but, states that he only did it to make himself "doubly free from responsibility."
The next step with regard to the contract was a letter written on August 19, 1925, by Ellis to Odell Bahar in which after setting out the var ares oe on to say) "you contracted to purchase and rendered yourselves personally liable for the carrying out of the purchase" and further states that if Odell Bebar are not able to take up and pay for the shares he could make arrangements to carry the share for Odell & Behar's account.
'The defendants do not reply to this or state that they are not per~ sonally liable, but do sign an agrecment on August 22, 1925 by which' the time for delivery was extended It is a fact of some importance in arriving at a decision as to the parties to the contract, that when the date arrived for the shares. to [be delivered " that were tend ered to the defendants and not to the buyers whose names the defendants alleged they di closed to the plaintiff. And it was the defendant Behar who had to take the plaintiffs agent to the officers of the various buyers.
Correspondence continued until October, 1928; and various arrange-_ ments pat forward and suggested for settling the matter, but never any denial of liability by defendants nor any suggestion that they were As late as January 25, 1927 in a }proposed agreement drawn up on, behalf of Behar with regard to a settlement with Ellis the Phrase] "Emanuel Ezekiel Ellis releases the said Harry Oscar Odell and Lack Behar from all liability on! their part" with regard to the ale of 1,000 Tramways to Carroll Bros, The Liability of Defendants This agreement certainly was! never signed, but it assumes that there had been some liability from which the defendants were to be re-eased. There are several other letters referring to the liability of the defendants which are not neces sary to go into. The plaintiff may. have known the names of the buyers: of the shares and the defendants may at some time have told the! plaintiff their names, But not for: the purpose of making the buyers ible to the plaintiff.
T am of opinion that on the do-Jcuments produced in this case that Tean come to no other conclusion than that the parties to the contract. for the sale of these shares were the Plaintiff Ellis on the one part and the defendant firm of Odell Behar on the other part.
That the defendants were employ-Jed by the plaintiff to sell the shares in consideration for the brokerage allowed and were to and did under-}take full responsibility and lability for carrying out the contract, Therefore judgment will be for the plaintiff for the sum of Hongkong $161,821.06 in the equivalent, [Shanghai currency and in the alter-|576 native damages to be ascertained {for breach of contract. In the event, fon further argument, of being satisfied that adequate, damages; cannot ascertained I will make an order for specific performance of the Contract.
Text read from the printed page and cleaned; old type leaves the occasional error.