The Aseistant Judge said:—This is an appeal by the plaintiffs against 'a judgement of the Judge of this Court deciding that clause four of an Agreement between the plaintiffs and the defendant Ca. dated April 1 1910, did not apply, but that clau:~ ation of a price less than the sum of Tls. 1,950,000 then the amount to be paid by the Company to the general manager shall be equiva: lent to 2} per cent upon the sum of Tls. 1,250,000. But except under the circumstances and upon the! terms above mentioned the Company shall have no power to terminate or in any way vary the said agreement.
6. These presents and everything that is their discretion—to pay 3} per cent, or they could have left the plaintiffs to sue them for breach of contract; and they would no doubt have exercised that option if they had expected to escape cheaper in that way, as might well have been the case if the Company had done well financially, for the Company was clearly @ one man concern, and Mr. Tam Wa might have carried resolutions of liquidation and sale six did apply, under which clause the learned Judge proceeded to assess the damages payable by the Liquidator to the plaintiff.
For the purposes of this appeal the facto may be shortly stated as followe:—In 1909 Mr. Tam Wa had acquired valuable land on the! Shanghai River—the Huangpu—suitable for a wharf, and proposed to form @ joint stock company, to establish thereon public wharf and godown business. To this end it was necessary obtain, as he) said ya foreign firm of standing ae general managers. He approached Messrs, Shewan, Tomas & Ca., the plaintiffs; and entered into an agreement with them which was subsequently embodied in an agreement dated April 1, 1910, between -the plaintiffs and the new company, the Whangpoo Wharf & Godown Ca, The company was unfortunate; and at a meeting of the shareholders on August 10, 1911, resolutions were pested to wind up the company voluntarily and to cell its property to the Osaka Syndicate—a name taken by Mr. Tam Wa and some friends—who spent rome more money on the wharf and then sold it at @ profit to the South Manchurian Railway Ca, The main question in the appeal: turns upon the construction that ought to be put on clause four and six of the Agreement of April 1, 1910: those clauses read ae follows "4, The Company shall have the option to terminate thie Agreement at any time during its continuance upon the happening of either of the following events (a) Upon payment in cash by the company to the general managers of sum equivalent to five per cent on the sum of Tls. 1,250,000, which' ie for the purpose of this agreement estimated to be the value of the land of the Company upon which the Wharf and Godowns stand and such sum of Tls. 1,250,000 shall be deemed to be an ascertained and fixed sum and not to be in any way variable by the fact (in the event of such being the case) that the purchase price paid by the Company to) the vendor was not actually equivalent to the sum of Tls. 1,250,000.
(b) In the event of " cole or trans-for of the whole of the Company's! property and undertaking upon pay ment in cash by the Company to the general managers of a sum equivalent to 2 per cent on the price actually paid to the Company 'n reepect of such sale or transfer provided that in the event of euch sale or transfer being made in consider herein contained shall (subject) nevertheless as hereinbefore particularly provided with regard to the determination thereof by the to himself under the name of some syndicate, paid plaintiffs 2} per cent. and then resold the concern at 'a big profit, when the 2} per cent.
Company) be applicable in every might have been lees than the sum respect not only to the Company, likely to be awarded by a jury for but also to any successor or success breach of the contract. Or suppose sors thereto, whether the title of the facts not to bring the case un-such successor or successors shall der (b): the Company could then, accrue upon a winding up of the if they chose, have paid 5 per cent Company or of its successor or suc-option (a), or have left the plaintiffs cessors or otherwise however the into sue them for breach of contract. tention of these presents being that In the same way if the plaintiff the right of the general manager had been retained as general manaas in these presents set forth tholi gers by the Osaka Syndicate, they be absolutely binding and irravocewould no doubt have claimed that ble (except as aforesaid) as egaintt clause six required the defendant all persons firms companies and cor-Company to see that the Osaks parations whatsoever and under all Syndicate gave them the benefit of circumstances whatsoever." clause four, when the same consi-It is the duty of the Wourt to' derations would have applied. In construe this agreement, and in #0 short, options (a) and (b) cannot doing I ought (1) to give the words be construed to provide liquidated used their plain and litecai mean-damages; and it is therefore really ing; (2) to gather the intention irrelevant to inquire whether the the parties from the whol" of the facts brought the case under (a) or instrument; and (3) I ought not, if (b) for neither option was exercised. the circumetandes are clear, to conai-When this is seen, the difficulty der extrinsic evidence, the arity of that has beset this case vanishes the Court being to declare the mean-For if the contract provides no ing of what is written 'n the mstrumeasure of damages the plaintiffs ment, not of what was intended to are necessarily driven to their com-have been written, per Parks 8. mon law right to unliquidated shore v. Wilson 9 C. and F. 9. 556. damages for breach of contract Guided by these principles, I make) namely, such assessed damages as clause four to mean that the plain-ay fairly and reasonably be con-tiffs are to remain general managers sidered as naturally arising from of the wharf for twenty-five yeart the breach, some regard perhaps unless the Company exereis: 9j tien being had in " proper case—which (a) or (b). Now the Company has this is not—to the sums prescribed not exercised either of these options, under (a) and (b). Such damages but by the resolution to wind up and have been assessed by the learned aty it nas dismissed Judge on a principle not objected the plaintiffs within the stipulated to by plaintiffs or defendants, on a period and has therefore broken supposed breach of clause six; and clause four of the contract and is whether clause four or clause six Liable to the pwintiffs mn damages. is held to have been broken can make Wear ought to be the raeasure of no difference to the measure of those damages? The vontrac: might damages. The amount awarded hove prese: ved sums agreed up: n seems to me ample to compensate the parties damages for the the plaintiffs for their actual loss. breach thereof in caves (a) and (b)—liquidated damages: but this it hss) In regard to the cross appeal I clearly not done: it stipulates that the) agree with the learned Judge that Company may in those cases P&y) there was no waiver by the plaintiffs because there was never an accord—5 per cent. and 2} per cent. respectively, but not that it shall do ea. there was such a reservation on the Suppose the facts to have part of the plaintiff that there was brought the case under option (b), never a clear offer and acceptance. as I think they did, for the transac-also agree that the contract of tion was in effect a voluntary trans-April 1 was duly executed and that for of t'ae whole property and sub-the sums paid by way of salaries, stratum of the Company—they sold ete., were rightly allowed. On the all they had and the buyer was free view I take of the case it is not to do what he liked with his pur-necessary to deal with the question chase: in what condition would the of damages under clause six not Comprsny have then been? They having been pleaded by the plain-could have exercised option (b)—tiffs.
Text read from the printed page and cleaned; old type leaves the occasional error.