as I read it, the company proposed the defendant to substitute for the third clause of the original agreement fas subsequently varied, which had become impracticable owing to the elimination of the Bank and the withdrawal of the bonds, a new Fangement whereby the funds of the company were to be transferred from the Bank at Tientsin to a separate account "with the defendant at Shanghai to be known in the com-any's book's as the "A. E, Moses Banking Account," which was to be temporarily at defendant's disposal at 7 per cent interest but on which the company purposed to draw when it required delivery of bonds. Now contract in writing may be modi-fled with the consent of the parties, and if some only of the terms are varied, the contract of the parties fis the original contract as varied (Morris v. Baron & Ca. 1018, A.C. 1 at p. 31) and no new' consideration is requisite, Such a modification may indeed be implied from a course of conduct, and Implied the more readily where the conduct of the party denying the modification has induced the other party to do something on the faith of a state of things existing under the supposed new agreement but non-existent under the old, or where, even if no such agreement can be implied, the conduct is of such a nature as to raise an equity against the party resisting (Bruner v, Moore, 1904, 1 Eh. 305). T find, however, that' in this ease the defendant did in fact agree for consideration to keep the deposits as a special fund against delivery of bonds. As in Tidd pv. Overelt (1893, 3 Eh. D. 154). "the money was received as a trust and the parties contemplated the use of It by the trustee in the meantime.
Hongkong & Shanghai Bank where It nceount with the either earned or saved him interest; how otherwise, he said, was he to get the benefit of the' deposits on which "he had to pay 7 per cent. Interest, "And on two occasions, as evidenced by the letters and receipts of October 30 and December 5, 1934, hho allowed Judah to draw on' them Otherwise than against delivery of bonds, namely for $136444 and '$2097.47 respectively to cover "Hongkong & Shanghai Bank charges re handling of bonds" and "Frane Ex change loss on December Delivery Contract."
If, however, I am wrong in finding that the defendant did ntact agree to hold the deposits in a special ae-count, then I am of opinion that the defendant by signing the special receipts led the company to. believe that ho had so agreed, as a result of which belief the company altered MMs position for the worse; for it is incredible that the company should have continued to bank with the defendant after it knew that the latter had rejected its terms. T have dealt at length with the doctrine of estoppel in my judgment in the case of China Realty Ca. v. Anderson and Kew; it is sum cient here to point out that defendant's conduct would pear to come within the rule Freeman v. Cooke where Parke, B., id: "The only question fe whether Wt be an estoppel. It.is contended that It was, upon the authority of the rule laid down in Pickard Sears that where one by his words 'oF conduct wilfully causes another to believe in the existence of a certain slate of things and induces him to act on that belief oF to alter his own previous position, the former is concluded from averring against the Inter a different existing at the so By the term "wilfully," however, we must ly understand, if not that the party represents that {o be true which he knows to be untrue, at least that
acted upon, and that it Is acted upon he meant his representation to be accordingly; and il, whatever a man's Feal meaning may be, he so conducts himself that a reasonable man would take the representation to be true and believe that it was meant he should act upon it, and did act upon it as true, the party making the representation would be equally. pre-chided from contesting its truth; and conduct by negligence or omission, where there is a duty east ripon. person by usage of trade or oth wise to disclose the truth, may often have the same effect." "Ramsden Dyson (LR. 1 HI. 129) and A—G. to HLRH. the Prince of Wales v, Col-tom, (1916, 2 K-B. 193) are Mlustrative of this duty to disclose
Text read from the printed page and cleaned; old type leaves the occasional error.