SPROULE A.C.J. Plaintiffs are share-brokers. Defendant is Executrix of the will of Chan Kim Boon, deceased, who acted by an attorney, her son Chan Yen Pai. Chan Kim Boon, deceased, owned 300 shares in the Duff Development Co., Ltd., a sterling Company, registered in London.

Yen Pai brought these shares to Plaintiff for sale on 12th April, 1926. He now claims that Plaintiffs bought the shares outright from him as jobbers, and did not act as his brokers at all; but I do not like Yen Pai as a witness, and the course of dealings and conduct of the parties contradict these allegations. I have no doubt that Plaintiffs acted merely as brokers, to Yen Pai's knowledge. A jobber would have quoted a price forthwith, with a par rate of exchange, and with no deductions for brokerage commission of expenses. Plaintiffs, on the other hand, obtained a quotation by cable from their London agents. Messrs. Shaw & Co., ordered sale by them, and on 15th April sent Yen Pai a Sale Note. Yen Pai claims to be a careful business man and could not have read this contract as one of the sale to Plaintiffs. The Note said "Sold on account of Chan Yen Pai, Esqr.," and quoted a price of "19s. 9d. nett per share less brokerage", indicating a deduction for commission as to the rate of which he only had to inquire, as I make no doubt he did. The Note also stipulated for the rate of Exchange of the day of delivery. The events of July, 1926, and October, 1926, presently to be narrated, further contradict Yen Pai's allegations of a sale outright, as do Plaintiff's contemporaneous book entries.

Yen Pai accepted the contract of 15th April. On 16th April he executed a transfer witnessed by him solicitor, and delivered this and the share certificates to Plaintiffs. Plaintiffs accepted this delivery as a good ready delivery and sent Yen Pai a cheque within 24 hours for $2,522.39, being the price of 300 shares at 19s. 9d. Shaw & Co.'s rate was 20s. 3d., after allowing for their brokerage at Stock Exchange rates, which as members of the Exchange they were not allowed to disclose. Plaintiff's brokerage was thus 6d. per share. Defendant challenges that rate as unfair. Plaintiffs defend it upon the grounds of expenses of cables and of the high standing they claim for their firm.

Plaintiffs sent the share certificates and transfer to Shaw and Co. Shaw & Co. cabled for the Probate and other documents of title, since Yen Pai purported to transfer as attorney of the executrix of a deceased person. Plaintiffs sent to Shaw & Co. Yen Pai's Probate and Power of Attorney, which arrived in London on 12th July. On 13th July Shaw and Co. cabled to Plaintiffs that the Probate and Power were not in order, and that they were returning them.

Mr. Newell then sent for Yen Pai and asked him to refund the $2,522.39. Yen Pai said he had already distributed the money amongst the beneficiaries and it would be troublesome to collect. Mr. Newell then explained that interest at 12 per cent would be charged, and let it go at that. Yen Pai never set up that the shares had been purchased outright, and that he had no further concern with them or was not bound to refund.

Then in August Plaintiffs received Shaw & Co.'s letter of 15th July, 1926, pointing out that the Probate only covered Singapore assets, that fresh Probate would have to be obtained in England, and that and Yen Pai's Power of Attorney produced to the Duff Company before they would consent to register the transfer. I extract the last paragraph of Shaw & Co.'s letter, which says:-

"We would again remind you of the urgent necessity of verifying that Probates and Powers of Attorney have already been registered here before shipping any documents signed by Administrators, Executors; or Attorneys."

On 19th July, Shaw & Co., not being able to give to their own purchaser a good delivery of the Yen Pai shares, had to buy against the contract and at a loss. The rate was 23s. 1 1/2d. and the gross price of $34617s. 6d., which was charge