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Colonial Cases

Wong Wah Tung v. Dallas, 1896

[breach of contract]


Wong Wah Tung v. Dallas

Supreme Court for China and Japan
Hannen CJ, 8 June 1896
Source: North China Herald, 12 June,1896

[See also North China Herald, 5 June.]




Shanghai, 8th June

Before Sir N. J. Hannen, Chief Justice.


   The hearing of this action, by Wong Wah-tung, a Chinese coal merchant, against Mr. Barnes Dallas, was continued. Mr. D. McNeill (Messrs. Dowdall and Hanson) appeared for the plaintiff, and Mr. H. P. Wilkinson for the defendant.

   Upon the Judge taking his seat,

   Mr. Barnes Dallas again went into the witness box and further cross-examined by Mr. McNeill. He said that upon receiving the native bank orders from the plaintiff he paid them into his bank. He heard at the time that the native bank was insolvent from some one, and thereupon the delivery orders which had been given to the plaintiff were cancelled. At due date the native bank orders were presented for payment, but were not honoured; had they been met the delivery orders would have been re-issued to the plaintiff. 

   The letter written in June,1893, to the plaintiff to the effect that he (defendant) was about to transfer the land to his Japanese principals was quite correct, though as a matter of fact the land had not actually been transferred up to the present day. The title-deed had been handed over, but the land was not transferred. Some time after being taken to Japan - about two years ago - the title-deed was lost.

   Mr. Albert Algar, architect, was next called by Mr. Wilkinson. He stated that some time ago a client called on him and wanted to sell a piece of land opposite the Upper Boathouse on the Hongkew side of the creek. The client showed him a letter signed by Mr. Barnes Dallas that there was some Tls. 4,470 due on the land, and he (the client) wanted to sell the land for enough money to pay off that within about twenty days. Witness did not think the land at this time was worth the money, and the matter fell through.

   In reply to Mr. McNeill witness said he thought the letter produced was the one shown to him.

   This closed the evidence for the defence, and the Court adjourned for tiffin.

   Upon resuming,

   Mr. Wilkinson addressed the Court on behalf of the defendant. He said it was the duty of the plaintiff to have paid off the amount he owed Mr. Dallas in the matter before claiming his property, and on his doing so Mr. Dallas was prepared to give back the title-deed. After the defendant's evidence there could be no doubt as to the existence and meaning of the contract of the 10th of October. The intimation that the plaintiff was led to sign it by the interpretation of a wicked person named Tsai had quite broken down. If the plaintiff had produced his books it would have been seen that his idea of it agreed with the evidence given by the defendant. It was impossible to believe that a person in the position of the plaintiff, connected with a hong, could not have kept account of the transactions. The only reason for him not producing then was that he had burnt them or lost them as they did not agree with his case. On the other hand. Mr. Dallas had produced voluminous accounts and had been most carefully cross-examined on them. 

   Regarding the native bank orders, and as showing that they were not stopped by the plaintiff, it was significant to note that one of them bore the endorsement "bank says will pay this afternoon," with the due date. Contending that it was a case of settled account, the learned Counsel urged that his Lordship could have no doubt that the plaintiff had notice of the amount due from him, and that, according to Mr. Algar's evidence, he was in treaty with anyone who would pay off the amount due on the land.  As to the slabs of tin which had been deposited as part security, they rather resembled the goods borne from house to house at a Chinese wedding. Looking at the case as a whole he contended that the evidence of the defendant had been unshaken.

   Mr. McNeill, for the plaintiff, said the answer which the defendant had put in was most misleading and embarrassing, and had it not been for the inspection of books and documents which the Court had allowed him (Mr. McNeill), he should have had no means of ascertaining that the defendant was not prepared to rely on the dates until the case was in Court. 

   The evidence that the plaintiff had given worthless bank orders was not supported by his conduct. If he had done so on obtaining the delivery orders he would at once have taken away the goofs; the fact was the delivery orders were not in proper form and were useless, so he stopped his bank orders. The counterfoil stated that the delivery orders were signed by the Agra Bank who had a lien on the coal; but he submitted that the ordinary course would have been for the Agra Bank to give their own delivery order.

   Upon the point that no account had been stated and accepted by the plaintiff, the fact was that he did not know a word of English, and on receipt of the letter claiming the money he consulted a friend who knew a little English, and who made a visit for the purpose of ascertaining how much was due. After that he consulted a lawyer. 

   In conclusion, the learned counsel submitted that it was clear Mr. Dallas did not enable the plaintiff to obtain delivery of the coal, and that in so far as the contract was broken it was broken by Mr. Dallas.

   His Lordship reserved judgment.

.  .  .  

11th June.

   His Lordship delivered judgment in this case which was an action, &c.

   His Lordship in giving his decision said -

   I do not propose to go elaborately into the case; I will tell you my conclusions, and then it will be for you (Mr. Wilkinson) to draw up a formal order for the account.

   I consider the contract of the 10th of October,1891 is proved. The 1,078 tons should be taken at Tls. 3.90 - I do not know at what they have been put in your account. 

   Then I consider the plaintiff broke that contract of the 10th of October; and an account should be taken of the amount due to the defendant, the metal pledged to the defendant to be taken at the amount it fetched on sale by the defendant, and the costs should be paid by the plaintiff. Upon payment of what is found to be due, the land is to be re-conveyed to the plaintiff. You (Mr. Wilkinson) will draw up the order upon that.

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