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Colonial Cases

Wei Seu Chuen v. Blenkin, Rawson, 1859

[sale of goods]

Wei Seu Chuen, alias Aleet v. Blenkin, Rawson and Co.

Consular Court, Shanghai
1859
Source: The North-China Herald, 27 June 1859

 

H.M. CONSULAR COURT, SHANGHAI.

CIVIL SIDE.

27th June, 1859.

WEI-SEU-CHUEN alias ALEET v BLENKIN, RAWSON & Co.

Before D. B. ROBERTSON, Esq., H.M. Consul,

J. MARKHAM, Esq., Vice Consul,

Messrs. H. M. M. GRAY, J. F. CARTER, Assessors.

This was an action brought by the Plaintiff for the recovery of £2, 964.6., 8. net proceeds of 49 bales of silk shipped to England by the Defendant on his account.

The Plaint having been read over to the Plaintiff he acknowledged it to be correct.

Then being warned to speak the truth he said: - During the 7th year of Heen-fung (1857) I delivered 49 Bales of Silk to Mr. Wm. Thorburn.  This I put into his hands to sell for me.  Mr. Thorburn advised me to send it to England as I should lose less by selling it there.  Last year in the 4th moon (June 1858) Mr. Thorburn told me the Silk was sold and he could at any time pay me the proceeds.  Two months afterwards I heard that Messrs. Blenkin, Rawson & Co.'s house had failed and I applied to Mr. Thorburn who told me the business relative to my Silk did not concern the English house but the Shanghae house.  Mr. Thorburn told me to wait for the account sales and he would then see about it.  When Mr. Thorburn was going away he asked Mr. Dow to settle with me when the closed account should arrive.  Mr. Dow said I had better wait some time - that it was the business of the English house and just now they would pay me one quarter which I had better take.

Mr. Dow the representative of the Defendants made the following statement:-

With reference to the conversations, which the Plaintiff asserts by his deposition, passed between himself and Mr. Thorburn, I cannot of course speak from personal knowledge, being absent from Shanghai at the time; but the evidence which I shall bring forward will prove, that Mr. Thorburn never entertained the idea of being personally responsible, which impression the Plaintiff endeavours to convey.

The Plaintiff has claimed on my Firm, the sum of £2,964.6.8. being proceeds of 49 Bales Silk shipped by us to London on his account.

This amount I refuse to pay having never received it from the Consignee of the Silk, and also as we, from the outset of the business, acted purely as Agents, and I am prepared to prove from Documentary evidence of the clearest description, as Agents incurring no responsibility.

I must trouble the Court in the first place to refer to the Invoices of the Silk shipped on account of A-leet (Invoice Book outwards fo: 184 and 189) and in advising our London correspondents Messrs. Rawson Sons & Co. of the shipment we gave them distinctly to understand the Silk was A-leet's property and that having made no advances, we had no lien upon the Goods.  It is clear from the Invoices the Silk was the property of A-leet, therefore Rawson Sons & Co. could not legally part with the proceeds of such property, except to A-leet or agreeably to instructions from him - if we presume that Rawson Sons & Co. passed the proceeds to our Credit in general account, without instructions from A-leet; and in the meantime we became Insolvent and our estate shewed a deficiency, it will be perfectly clear that Rawson Sons & Co. would be responsible to A-leet for such deficiency, for parting with his property without his authority. 

Thus far I venture to think, the question is fully met as to whom Rawson Sons & Co. in the absence of special instructions to account for the Silk, and this view has been further confirmed by an appeal at home to arbitration, since Mr. Thorburn's arrival there.  Messrs. Rawson Sons & Co. for reasons of their own wished to pass the proceeds of this Silk to the credit of our account, Mr. Thorburn resisted this knowing we had no right to property which was entirely A-leet's, the question was referred to arbitration when the following decision was given:-

In the matter of accounts Blenkin, Rawson & Co. and Rawson Sons & Co. I award £1,33511.9, £1,628. 14. 11 on which account no advance has been made and is a distinct and well defined account.  The owner of the Silk must rank on the estate of Rawson Sons & Co.

(Signed) W. W. KER.

These two amounts form the sum total of A-leet's claim on us.

It cannot stand either in Law or equity that an Agent is responsible when proper caution is observed, unless he is paid to accept such responsibility; by reference to the Invoices the Court will observe no commission for such responsibility is charged, neither has it been our custom to make such charge or take such responsibility.  A reference to Chitty's Laws of Commerce chap. 3, page 194 clearly proves that to become responsible an Agent must make a charge to pay for the responsibility he assumes - and that no charge being made and due caution observed no responsibility is attached to the Agent.

As to our responsibility with reference to the selection of our Agent at home, Chitty chap. 3, page 206, 215, 217 clearly establishes our power to appoint whom we like, in the absence of special instructions, and the extent of our own operations with Messrs. Rawson Sons & Co. is a proof of the perfect confidence we had in their ability.

It has been stated by A-leet in his petition to the Court that in his presence Mr. Thorburn directed me to pay him the proceeds of his Silk; this I emphatically deny - Mr. Thorburn [promised so soon  as he arrived in England, his best exertions should be given to protect A-leet's interest, and secure for him the Dividends which Rawson Sons & Co. had paid and were to pay, and the arbitration case before referred to proves Mr. Thorburn had no idea we were personally responsible for the proceeds of the Silk.

In conclusion I have merely to state to the Court my thorough conviction that it will be clear to them, we acted only as Agents to  A-leet - as a medium of communication between A-leet and the Merchant in England, - it is against all Commercial Law and practice to suppose an Agent will take a responsibility without being paid for it, and I den y ever having made the Plaintiff a charge of "del credere" commission, or that we ever intended doing so and I count most confidently on a favorable decision in this case.

THE PLAINTIFF cross-examined.

I did not tell Mr. Thorburn where to send the Silk to ion England.  I mentioned no one as Agent.  I know that Blenkin, Rawson & Co. have a house in England.  This was not contract Silk.  I got the account sales after Mr. Thorburn had left.

DECISION.

The COURT having heard the evidence, decide that the Plaintiff cannot recover from Messrs. Blenkin, Rawson & Co., the amount he claims, from the fact that the Silk in question was handed over by Plaintiff to Mr. Wm. Thorburn, the representative partner, to send to England to do the best he could with - no commission being charged and therefore no responsibility for the goods undertaken.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School