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Colonial Cases

Forbes v. McCoan, 1869

[wrongful dismissal]

Forbes v. McCoan

Supreme Consular Court, Constantinople
Francis J., 19 August 1869
The Levant Herald, 25 August 1869

 

SUPREME CONSULAR COURT. - Aug. 19.

[Before Sir P. FRANCIS, Judge, and a Common Jury.]

FORBES v. M'COAN.

   This was an action brought by a late assistant-editor of this paper, to recover £900 damages for alleged wrongful dismissal in July last.

   Mr. Harvey appeared for the plaintiff; the defendant appeared in person.

   Before the jury were sworn, Mr. M'Coan said that inasmuch as the plaintiff's petition was rather a hybrid document, asking first for specific performance, and then, in the alternative, for damages, he must ask his advocate to elect which he meant to go for; as, if he went for his equitable remedy, there would be no issues for a jury to try; while if he elected for damages, the first prayer of his petition must be struck out.

   Mr. Harvey said that he had drawn the petition before he knew he was going to have a jury, but he would now elect for damagers.

   After some challenges, the jury were then sworn, and Mr. Harvey opened his case by reading the plaintiff's petition, which alleged as follows:

  1. That in the month of December, 1868, I accepted the post of sub-editor to the Levant Herald newspaper, at a salary of £350 per annum, offered to me by the defendant, and at the defendant's request I quitted England for Constantinople on the written understanding and agreement that on my arrival in Constantinople a contract for two or three years was to be executed in my favour by the defendant.
  2. That on or about the 2nd of the present month of July the defendant wrongfully dismissed me from the office of the Levant Herald, and refused, and still refuses, to remunerate me according to the terms of the said agreement, or to indemnify me for the loss incurred owing to his non-fulfilment of the terms of the agreement herein above referred to, but in part satisfaction thereof has paid me only the sum of £148 7s. 6d.

   The plaintiff therefore prays:

  1. That a decree for specific performance of the above-mentioned agreement to be issued against the defendant to compel him to execute a contract with the plain tiff upon the terms above referred to, or
  2. That the defendant be decreed to pay forthwith to the plaintiff the sum of £911 12s. 6d., being the amount of the annual salary for three years, less the sum of £148 7s. 6d. already paid in past satisfaction thereof.
  3. That the defendant be further ordered to pay all costs, charges, and expenses incurred herein, and that the plain tiff may have such further or other relief as the nature of the case may require.

   To this the defendant had answered:

  1. That in the month of December last the above-named plaintiff was engaged for me in London, as assistant editor of the Levant herald, by Mr. Walker, the editor of the Daily News.
  2. That the said Mr. Walker, as my agent, fully explained to the plain tiff the duties he would be required to perform as such assistant editor, and all the other conditions attaching to the engagement.
  3. That the plaintiff agreed and undertook to perform the said duties well and efficiently, and accepted the said conditions referred to.
  4. That I thereupon requested him to come out to Constantinople, and expressed my readiness to execute a contract with him for a term of two or three years.
  5. That after his arrival I found him to be wholly in competent to perform the duties he had undertaken, but, in the hope that he might improve, I resolved to give him a three months' trial, without executing the intended contract.
  6. That during the said term of three months I had frequent occasion to complain to him of his incompetency, but instead of improving he became worse - through positive neglect of the office work, and indulgence in intemperate habits.
  7. That in consequence of such incompetency and misconduct, at the end of the said trial term of three months I gave him a further quarter's notice of dismissal, which he accepted.
  8. That at the expiration of such notice  I dismissed him for the specific reasons of continued incompetency, neglect of duty, and incompetence.
  9. That on so dismissing him I tendered to him the sum of $16 12s. 6d., the balance of  salary then due to him - deduction made of £10, as half of the sum advanced for his passage which in the event of his leaving for any reason whatever within 12 months, he was bound to return to me.

   Mr. Harvey then proceeded to describe the case as one in which his client had been very harshly treated; he appealed to the sympathy of the jury with him as a married man with a family, and stated the disadvantage which had been forced upon himself in having to consent to take the defendant's own version of his letter to Mr. Walker - which had been lost - containing the precise terms of the engagement.  He had had to consent to this under the alternative of a commission issuing to take the evidence of Mr. Walker in London - which would have involved loss of time and expense which his client could not afford.  He would, however, prove by the plaintiff himself that he had efficiently performed all he had undertaken.  He then called

   Mr. B. Esau, a compositor on the Levant Herald, had heard Mr. M'Coan complain several times to the plaintiff of his "copy," - especially of the "Week."  Such of his manuscripts, too, or the proofs of them, as passed through the editor's hands were greatly altered by the latter - much beyond d what witness had seen on other newspapers in London.  He had seen the plaintiff two or three times visibly under the influence of liquor in his own working room in the office.  These were on Tuesday evenings - before the weekly publication day.

   In cross-examination, the witness said that how he knew plaintiff had been tipsy, was that he himself afterwards admitted it, and excused himself for the delay and loss of time occasioned to witness by it.

   Mrs. Saliba, the landlady of the house in which plaintiff had lodged, stated that considerable quantities of spirits used to be brought to the house for him, and frequent small glasses of raki from the bacal's across the way.

   Hano, a bamal in the Levant Herald office, had seen plaintiff drunk on two or three occasions, and had been in the habit of bringing him in glasses of wine two or three times a day from the bacal's.

   Cross-examined: The defendant had not told him what to say.

   Mr. M'Coan then briefly summed up his evidence, con tending that it proved his pleas, and reiterating the considerations, legal and circumstantial, on which he was entitled to a verdict.

   Mr. Harvey replied on the whole case, denying that any of the excuses for the plaintiff's dismissal had been made out, and repeating his appeal on behalf of the plaintiff as a poor man with a wife and family who "had been thrown out into the streets by the defendant, 3000 miles from home."  He denied that the law was as had been stated, and laid down - on his own authority - that if the defendant, after having contracted with the plaintiff found him to be a "stick," he was still bound to retain him in his employment.

   The learned Judge then very lucidly reviewed the evidence on both sides, and in doing so said that the plaintiff relied upon the letter he received from the defendant, confirming the telegram the latter had previously sent, as a positive contract to make an engagement for two or three years.  If that were so, and the contract was broken, then the plaintiff was entitled to damages for its not having been carried out.  But the real issue was the amount of damages to which he was entitled.  The amount might be nominal, or it might be considerable.  It would be nominal  if the defendant's case were made out to the jury's satisfaction, namely, if they believed that the plaintiff was incompetent and intemperate, because, supposing they had made the contract as promised in this letter of Dec. 2, and the next week or fortnight after Mr. M'Coan had found out that Mr. Forbes was incompetent, intemperate, or incapable of carrying out his contract, he would have been perfectly justified in rescinding it, because it was the duty of Mr. Forbes, when he undertook such an office as that, to have been quite certain that he was capable of performing its duties.  It was, therefore, for the jury to consider whether Mr. M'Coan had made out his various pleas of incompetence, and the other ground, which he had very properly not over-laboured, but which he had a right to bring forward - intemperance.

   Mr. M'Coan's version of the terms which he communicated to Mr. Walker could not have taken any one by surprise; it was just what one would have expected as the conditions of a contract in such a case.  There was not very much difference between the plaintiff and defendant as to what the duties ought to be, and the jury were perfectly well able on the evidence to decide whether the plaintiff was qualified to discharge those duties and did so so.  His knowledge of French he frankly stated in his own letter to be rather elementary.  However, he said he could translate, and that he could understand Voltaire, and he came out certainly on the representation that he could do the work described by Mr. M'Coan.

   The jury had heard what Mr. M'Coan had said, "I am the best judge whether a man is competent or not."  As a general rule, it was certainly for the employer to decide upon the competency of the person he employed, always supposing that, in case of dispute, he could give a judge or jury a very good reason for his dissatisfaction.  The jury would therefore consider whether the supposed defects alleged by Mr. M'Coan, and which Mr. Forbes denied - his inability to do paragraph  writing and French translation, and his using scissors and paste in the compilation of the "Week" instead of writing it originally - were conclusive evidence of Mr. Forbes' incompetency.  With regard to intemperance, there was certainly evidence that on two or three occasions Mr. Forbes was the worse for liquor.  He had given his explanation.  That was for the jury to consider, taking it in conjunction with what Mr. M'Coan had also said that the habit of drinking affected the plaintiff's literary powers. It was for the jury to consider whether the evidence was such as to satisfy them that the plaintiff was incapacitated from doing his duty by intemperance.  Intemperance might be of various sorts.  There might be that violent intemperance which unfitted a man for the performance of any specific duty at a particular moment, and there might be even that worse form of it where soaking, as it was called - taking "nips" - might render a  man both in his nerves and brain unfit for performing his duty.   On the other hand, there had been very man y instances, certainly on the press, of men who had been addicted to the habit, and yet had been far from incapable of performing their duty.  However, the jury must judge whether this - he would not call it a proactive, for it had not been proved to be a practice, but this occasional indulgence - whether  it justified Mr. M'Coan's saying that the plaintiff was for that reason incompetent.

   Mr. M'Coan: I merely put it that it contributed to his incompetency.

   The Judge: Exactly so - that it formed a part of the reasons which caused the incompetence.  Then there was the point whether the notice of dismissal was accepted.  It was for the jury to say whether the notice of dismissal was accepted.  It was for the jury to say whether Mr. Forbes did accept the dismissal as final.  He certainly did remain on.  It was for them to say, as men of the world, whether his doing to and saying nothing for some weeks was constructively an acceptance of the dismissal.  He positively declared that it was not.

   As to the tender, the defendant's offer to pay the plaintiff £16 was not a tender in law, inasmuch as he did not put the money down, but as this was not an action for balance of wages, but for damages for wrongful dismissal, that point did not now arise.  The wrongful dismissal was the veal point for the jury, because he (the Judge) thought the jury would come to the conclusion that Mr. M'Coan undertook to make a contract, and, not having done so, he was in the wrong, but if the dismissal was justified the plaintiff was only entitled to nominal damages. If they considered, on the other hand, that the plaintiff was wrongfully dismissed, then they must not suppose that because he was to have £350 a year they must, in order to obtain the measure of damages, multiply that sum by the period for which the contract was to have lasted. The rule was the actual loss which had been sustained.  Of course, it was not easy in Turkey to find new literary employment; at the same time, Constantinople was not very far from En gland, and it was generally assumed that it was not difficult for a competent person to obtain other employment.  If the jury came to the conclusion that the contract ought to have been made under this promise, and that that contract ought to have been maintained now, because Mr. Forbes was competent to perform his duty, then they would make up their minds what the damages should be. If, on the other hand, they came to the conclusion that if the plaintiff had had a contract, as Mr. M'Coan had said, with ten seals and ten times over, and that after it was made he proved to be incompetent, then Mr. M'Coan had a right to discharge him.
   The jury retired, and after about a quarter of an hour's absence returned with a verdict for the plaintiff, damages £175.

   Mr. M'Coan gave notice that he would move the court for a new trial, on the ground that the damages were excessive e and the verdict against the weight of evidence.

   [This was done on Monday, when a rule nisi, to be argued tomorrow, was granted on the grounds stated.]

 

Perkins Collection, 1-015-1

 

CONSTANTINOPLE, Saturday, Aug. 21, 1869.

  • Our London correspondent's letter, received by the Varna mail on Friday, is necessarily deferred through the length of our Law Report.

 

The Levant Herald,

LAW REPORT.

SUPREME CONSULAR COURT.

Constantinople, Thursday, Aug. 19

(Before Sir PHILIP FRANCIS. Kt., and a jury.)

FORBES v. M'COAN.

   This was an action for damages for breach of contract, brought by Mr. Arthur Forbes, late assistant-editor of the Levant Herald, against Mr. J. C. M'Coan, editor and proprietor of that journal.  Mr. HINGSTON HARVEY was counsel for the plaintiff; Mr. M'COAN defended himself in person. 

   The folliwing was the defendant's answer to the plaintiff's petition:-

  1. That in the month of December last the above named plaintiff was engaged for me in London as assistant editor of the Levant herald newspaper by Mr. Walker, the editor of the daily News.
  2. That the said Mr. Walker, as my agent, fully explained to the plaintiff the duties he would be required to perform as such assistant-editor, and all the other conditions attaching to the engagement.
  3. That the said plaintiff agreed and undertook to perform the said duties well and efficiently, and accepted the said conditions referred to.
  4. That I thereupon requested him to come out to Constantinople, and expressed my readiness to execute a contract with him for a term of two or three years.
  5. That after his arrival I found him to be wholly incompetent to perform the duties he had undertaken, but that in the hope he might improve I resolved to give him a three months trial, without executing the intended contract.
  6. That during the said term of three months I had frequent occasion to complain to him of his in competency, but instead of improving he became worse, through positive neglect of the office work, and indulgence in intemperate habits.
  7. That in consequence of such incompetency and misconduct, at the end of the said term of three months I gave him a further quarter's notice of dismissal, which he accepted.
  8. That at the expiration of such notice I dismissed him for the specific reasons of continued incompetency, neglect of duty, and intemperance.
  9. That on dismissing him I rendered to him the sum of £16 12s. 6d. the balance of salary then due to him - deduction made of £10 which was half the sum advanced to him for his passage out, he was bound to return to me in the event of his leaving within 12 months for any reason whatever - but that he refused to accept it.

   The jury were:- Messrs. Henry Arnold, grocer; Thos. Watkins, engineer; Philip Lafeuvre, diver; W. S. Henderson , coppersmith; and Benjamin Rose, engineer.

   Before the jury were sworn,

   Mr. M'COAN, who had challenged three of the panel, said he was informed that since the panel was issued some or many of those on the list had been canvassed in the plaintiff's interest.  He suggested, therefore, to the gentlemen now in the box that if any of them had been spoken to about the case with the view of influencing them, it was their duty to state so in order that he might challenge them.

   The JUDGE remarked that Mr. M'Coan had already exercised his right of challenge.

   Mr. M'COAN maintained that for such a reason he had a further right to object, but, at all events, he would put it before the jury as a suggestion. (No one in the jury box made any remark.)  Mr. M'Coan then asked that the plaintiff should elect which issue he was going to stand upon - specific performance of the contract or damages for the breach.

   Mr. HARVEY explained that the case had been commenced in equity, but as the Court had ordered a jury, the present issue would be for damages for breach of contract.

   Mr. HARVEY then opened the case, stating that Mr. Forbes, the plaintiff, was the son of a Scotch Minister, educated at Glasgow University, and the defendant was well known as the editor of the Levant Herald and a barrister practising in this Court.  Mr. Forbes was engaged on the Levant Herald as sub-editor or assistant editor at a salary of £350 a year through a letter written by the defendant to Mr. Walker, the editor of the Daily News, asking him to recommend him some one for the post.  This letter had, unfortunately, been lost, and to avoid the delay of a commission to examine Mr. Walker in London, which the defendant had applied for - a delay which would have been ruinous to the plaintiff, he being utterly without means - they had been obliged to agree to accept the defendant's own version of it, and of that they were as yet in ignorance. 

   The defendant, however, did not deny that the plaintiff came out here with a salary of £350 a year, and on the defendant's promise to make a contract with him "for two or three years."  The parties had not agreed very well, and the defendant not only refused to make the contract, when asked to do so, but eventually, when the plaintiff had been with him about three months, ignored the engagement by giving him three months notice to leave.  The defendant now claimed, as damages for this breach of contract, the amount of his salary for three years, minus what he had already received.  On the expiration of the three months, the plaintiff in the meantime having commenced a suit in equity, the defendant [line damaged] the balance of salary due to that day unless he submitted to a deduction of £10, half of the sum remitted to him to pay his passage out.  The defence was that the plaintiff was not competent to discharge the duties for which he had been engaged through Mr. Walker, that he had been guilty of neglect of duty, and had incapacitated himself by intemperance from rendering such services as he would otherwise have been capable of performing.

   At the last moment that very morning - the defendant, who was a professional man conducting his own case, and who had already obtained an extension of a week's time to file his answer, had moved the Court to amend it by adding words amounting to a plea that the plaintiff had accepted the three months' notice.  This assertion would be contradicted by the plaintiff's evidence and his conduct.  The plaintiff had never abandoned his contract for three years, and that contract having been broken by the defendant, it would be for the jury, assuming that they considered Mr. Forbes had done his best to fulfil his part of it, to say what compensation he was entitled to for the breach, which left him penniless and dependent upon the charity of his countryman here for the support of himself and his wife and two children.

   Arthur Forbes, the plaintiff, was then called and examined by Mr. Harvey.  He  said: I am a native of Scotland.  I finished my educational the Glasgow University.  I got a private prize from the professor for the merit of my essays.  I have been engaged in literary pursuits about ten years.  About the end of last year I was employed in London in writing for the press, for Chambers' Journal, and for provincial journals as London correspondent, &c.  I saw Mr. Walker one day and he spoke to me about a man in the Levant - he did not know his name of place - who wanted a sub-editor, and said that if I called on the Monday he would recollect.  I called on the Monday, and he said the man's name was M'Coan, the paper was the Levant Herald, and that it was usual sub-editor's work, scissors and paste; and that if I wanted the place, for which he considered me suitable, I must write at once.

   I accordingly write to Mr. M'Coan. (Latter dated Nov. 18 produced by Mr. M'Coan.)  I received in answer a telegram from the defendant - "Your letter received; prepare to come; details arranged by next post."  In consequence, I sold off my furniture and prepared to come out.  By next mail, I received the following latter dated Dec. 2:-

"Dear Sir, my telegram will have already affirmatively acknowledged your letter.  I now write to request you to come out at once on the terms noted in my letter to Mr. Walker.  I shall willingly sign a con tract for either 2 or 3 years, as may be mutually agreeable, but as the precise details of this may be better settled between us here, I beg you to accept this as a preliminary engagement.  As to an advance, enclosed I send you an order on my London agent for £40, £20 of which will be for the passage out, and the remainder an advance proper to your debit of salary."

   I arrived in Constantinople of Saturday Jan. 2, by the French steamer.  My duties commenced about an hour after my landing.  I had breakfast and was told to write an article on the Greek ultimatum.  It was for the following Wednesday's paper, but I was told to have it in hand and give it at once.  I knew nothing of the Greek ultimatum, as it had not been published when I left London, and I had read no papers on my way through France.  I wrote the article, and Mr. M'Coan  called for it the next afternoon (Sunday), and got it.  Mr. M'Coan did not tell me anything specifically as [Perkins 01-016-2]

 to what my duties were, and never has since I have been here.  For a fortnight, matters went on peacefully.  I did not during that time ask for the execution of the full contract promised in the letter, but I have frequently done so since, and Mr. M'Coan has deliberately refused to fulfil his undertaking. 

   Our first altercation occurred two or three weeks after my arrival.  I had not found the office of the Levant Herald exactly a happy home - not a very peaceful establishment.  Orders were never given quietly by Mr. M'Coan, but always shouted.  There was always somebody to find fault with every hour of the day.  At first, I was exempt from his bullying; he bullied everybody but me.  After I had been there three weeks or so, he began to bully me and no one else (laughter) and I resented it, and there was a little row. Up to that time my work had not been complained of.  The late Mt. Joyce was then employed on the paper.  He generally wrote an article every week, for which Mr. M'Coan suggested the subject, while I, an utter stranger to Constantinople and Eastern politics, was required to find my topics, or not asked for some weeks to write a leader at all.  My occupations were translating the telegrams, French correspondence and commercial news, writing the "Week" (summary of news) and a leader which might or might not be asked for or accepted.

   When there was any great pressure, some things would be sent to Mr. Fuller for translation.  Frequent altercations occurred between us, and Mr. M'Coan sent the hamal several times a day to me with letters complaining that I was neglecting my duty.  I had refused to work on Sundays.  I was at Mr. M'Coan's disposal all the week.  I considered that for a weekly paper there was no occasion to work on a Sunday.  I did not "fritter away" my time, as Mr. M'Coan suggests in the letter just read.  If there was work to do, I was there to do it.  I was either at my office, or at my lodgings.  I was regularly bullied b y Mr. M'Coan.  I was not in good health, but the state of my health, however it may have affected the quality of my work, did not interfere with my attendance at the office nor prevent my doing everything that I was asked to do.

   On Tuesday March 30, Mr. M'Coan wrote complaining of my absence on that day, and that I had not done the "Week," &c.  I was absent on that occasion by leave given to me by Mr. M'Coan.  The letter was left on my desk in the office, and I did not see it till ten o'clock at night, when I had been two hours at work.  On reading it I felt insulted, and left the office, intending to go to law at once.  I replied to the letter, and went to the office the next morning.  I received then another letter from Mr. M'Coan giving me three months' notice, and stating the conditions of the payment of my salary for that period, viz., that I should write at least one leader every week, which should be ready for the printers on Monday; that me "Week" should  be ready on Tuesday at the latest, &c.  I continued to work, but not on those conditions as to time, &c.  I did not come out on such conditions.  I worked on the terms which had been communicated to me by Mr. Walker.  I was short of money, and required an advance.  Mr. M'Coan did give me some money but insisted that I was only entitled to be paid at the end of each quarter.  In the month of April, I was told that my work had been done a great deal better; and the same thing the very week before I left.  In May I told him I should bring the matter before the Supreme Consular Court.  Thereupon Mr. M'Coan wrote to me stating that as I was going to stand on my legal rights, he should do the same.  In this letter Mr. M'Coan stipulated conditions as to the time of writing leaders, and mentioned three different subjects, adding, however, that as the plaintiff knew nothing about them he had better choose a topic for himself.] I never consented to leave before the end of the two years.  It is not true I ever accepted the notice to quit.  On receiving a final letter from Mr. M'Coan stating that he had engaged another gentleman, I went to ask him for the balance of my quarter's salary then due.  He told me to come again and he would pay me.  I went down into the printing office, where, seeing a printer making a mistake, I told him to correct it.  Mr. M'Coan came into the office, told me not to interfere with the compositors, and, addressing the men, said that they were to understand that I had nothing further to do with the office.

   He then ordered me out of the office, and said that if I did not go, he would have me turned out by the zaptiehs.  I left the printing office.  On asking again for my money, the defendant told me to give him an account.  I made one out, which he said was correct, but he had to deduct £10, half of the sum he had remitted me for my passage out.  I said I had never agreed to that.  He rejoined, "Produce your letter of engagement."  I at first refused, saying that I had been advised not to show it to him, but afterwards I went home and got it.  He said, "Do you think I was such a fool as to engager you by telegram?" I replied, "If you consider you are a fool, you did."  He said there was a letter either before or after it.  I said, "This is the only letter; you see that it contains all directions."  Then he said, "Sign that receipt for £10 less, and I will pay you the money."  I s aid, "No," and walked out without the money.  He did not show me any money.

   I have, while on the Levant Herald, discharged all my duties up to a London standard and to the best of my ability.  I have done more than Mr. Walker told me I would have to do, such as law copying, and I w rote out that precious address to the Prince of Wales, and I think corrected the grammar in it.  I never neglected any duty but twice - in the two occasions when I received my discharge.  I admit that I was guilty of an act of intemperance on the occasion of my second discharge - tempted by the excitement under which I was labouring at the rime.  As I suffer from disease of the heart I require a stimulant when I am excited, for I am a homooeopathst. (Laughter.)

Perkins 1-1-016-1

   Cross-examined by Mr. M'COAN: I have never been on the staff of a London newspaper.  I have written articles for the Daily News and the Saturday Morning, a paper published in Bloomsbury-square, London.  I sent you specimens of them.  The Daily News only printed one article of mine.  I had sent them some 7 or 8, which were not printed for reasons assigned.   The article printed was very slightly altered. -

   In telling me on your arrival that you had been a leader-writer for the Daily News, did you mention that they had accepted only one of your articles?      No. -

   You swear that Mr. Walker did not mention the name of the "man in the Levant" who wanted an assistant-editor?  At first he did not.  He said he thought it was at Smyrna.

   When was your first leader on the Levant Herald published?  (Handing witness a file of the paper.) On Jan. 6.

   You swear to that as yours?  I do.

   Is it as you wrote it?  No, for you never published a leader in your life as it had been written.

   (Laughter.) There are trifling alterations.

  Is the literary composition of the leader materially changed?  Well, it was first written in good Saxon and now lies in your bad Latin-English.  It may also have been changed as to the facts referred to, for I knew nothing of the subject.

   You say you wrote on a subject you knew nothing about? (Laughter.) Yes, because I was ordered to do so.

   The plaintiff was then requested, during the adjournment of the court, to find in the file all the articles he had written, and on the Court resuming, he pointed out about a dozen, one of which he said was printed after he left the paper.  They had all been more or less altered by Mr. M'Coan. He denied that only a fourth of them were his composition.

   Asked about paragraph writing he said: I never wrote a local paragraph.

   Did you not try and fail and admit you could not do it?  I  said that you had a knack for paragraph writing, and that I could not compete with you in that kind of work, which was the only thing you were fit for on a newspaper.

   Oh, then, you admit that I beat you in English?  (Laughter) - In Saxon, yes.

   Did I give you a local paragraph in French to translate, and did you say you could not do it? Yes, because it was full of personal vituperations, and as I did not know the persons referred to, I could not render the innuendoes.

   The plaintiff was next examined about the incidents on the Tuesday when he was absent from the office and received notice from Mr. M'Coan.  The defendant put in a scrap of paper on which the plaintiff had written, in reply to this missive, - "I don't mean to stand any more bullying, I insist on the terms on which I came from England. ... Let me have no more documents please; the next I shall refer to the Supreme Consular Court."  This was followed by a very long rejoinder from Mr. M'Coan, repeating the dissatisfaction with the plaintiff's qualifications and conduct, and emphatically confirming the three months notice.  To this, plaintiff said he made no reply: he considered it beneath his notice.  All he did was to consult his lawyer. 

   He was next cross-examined about his competency for French translation.  Asked whether he had frequently to get the assistance of Mr. Florian, the French redacteur, in translations, he admitted he had to do so in translating mechanical or local terms, especially in the "commercial," and when Mr. M'Coan himself did not know the meaning, instancing that Mr. M'Coan told him that graines jaunes meant "yellow grains," when every one in Galata knew that the meaning was "young berries."

   Reverting to July 2, he declared that he was perfectly sober on that occasion, when he had an altercation with the defendant.  Asked if he did not tell Mr. M'Coan his conduct was swindling, he said: I told you that it was all part of the same swindle.

   By which you meant to say that my conduct to you was a swindle?  I did, and I do.

   Subsequently did you not say, "You have no witnesses now, and I tell you, you are a liar and a blackguard."  I said, "your conduct in bringing me out here with a wife and family is that of a scoundrel,! And further, with regard to that suppositious letter from Mr. Walker, that you had proven yourself a liar.

   [In explanation of this, it should be mentioned that among the numerous letters put in during the trial was one from Mr. Walker, Editor of the Daily News, to Mr. Forbes, commencing "I am at a loss to know what that letter can be which you have been told would ruin your character for ever."

   I added, "If you were an honest man, you would knock me down after what I have  said.  Good day!" I was never drunk in the office but once.

   Re-examined: I sent Mr. M'Coan six specimens of my composition and some testimonials.  I worked up to that standard.

   Two compositors on the Levant Herald and one of the distributors were called, and stated that the plaintiff was in attendance at the office while he was on the paper and that they never saw him drunk.  One of the witnesses, Mr. Langley,  said, in cross-examination, that the article called the "Week" as compiled by Mr. Forbes was generally "scissors and paste", not original MS.  Mr. Hanly was also examined as to the nature of the duties of a person filling the plaintiff's position on the Levant Herald.

   Mr. M'Coan then addressed the jury for the defence and also gave evidence on oath.  He stated that having known Mr. Walker, Editor of the Daily News, 20 years ago, when Mr. Walker was

[1-1.017-2]

sub-editor of that paper, and finding himself last November in some difficulty owing to the sudden departure of a gentleman whom he had engaged as assistant editor, and who left Constantinople three days after he arrived here, on account of a telegram from England, he wrote to Mr. Walker asking him if he knew of any one suitable, and stating that the salary would be £350 a year with a rise in two years to £400, that the person would be required to write at least one "leader" a week, that he must have good translating knowledge of French, be a good paragraph-writer, and have a general acquaintance with the work of a newspaper. In answer to this he received a letter from the plaintiff, stating that Mr. Walker had mentioned the vacancy to him, and from the style of that letter he concluded that the writer was just the person he wanted.

   Unfortunately Mr. Forbes had not been long here before he found he was not at all the man he wanted.  Mr. M'Coan then recounted all the causes of dissatisfaction  as regarded with Mr. Forbes' capacity and his general conduct.  In short, the plaintiff was utterly and hopelessly incompetent.  The article on the Porte's ultimatum, which he claimed as his own, had been written by the late Mr. Joyce: the plaintiff, at his own request, had tried his hand on the subject, but the result was wholly unfit to print, and the subject had then been given to Mr. Joyce.  As to the other  eight articles he had also claimed, in every case he (defendant) had had to re-write plaintiff's "copy," and as the articles now stood in print, nearly three-fourths of every one of them was his (defendant's) own work.   In fact generally, notwithstanding plaintiff's pretensions in the letters on which he had been engaged, he was grossly ignorant not merely of Eastern but of general home and continental politics, and though he had everything to learn when he came, he learned nothing.  Then, as to compiling and other sub-editing work, for this again he was wholly incompetent.  He lacked both taste, experience, and knowledge of practical newspaper work.  He was also incapable of paragraph writing, and could not decently translate even the simplest French - the telegram.

   On the plaintiff's alleged intemperance Mr. M'Coan did not now lay much stress; he admitted he had never seen him drunk, and he did not mean to say that he was a drunkard - only that he tippled and muddled" himself, and that this was a contributing cause to his general inefficiency.  The real issue for the jury depended, as his Honour would, no doubt, direct them, on the plaintiff's competency for the work he had engaged to do.  He (Mr. M'Coan) contended that he was the best judge of that question.  If the plaintiff had been even tolerably competent - if he had capacity enough to be "coached" in time into his work - it was his (the defendant's) interest in every way to keep him.  But not only was he unqualified for the position, but he neglected to exert himself as he ought to have done to the best of what ability he had.  In conclusion, Mr. M'Coan deprecated the appeal made to the sympathies of the jury by Mr. Harvey, who, he said, had tried to make it a case of a poor man against a rich man.  He (Mr. M'Coan) was certainly not a rich man; and on all other grounds he thought it was he who was entitled to claim the sympathy of the jury, having been nearly worked to death through having to do the work for which he had been paying another man a handsome salary.

   Mr. Charles Florian, French redacteur of the Levant Herald, examined by Mr. M'Coan, said he had seen the plaintiff drunk in the office, and had often heard Mr. M'Coan complain of his neglecting his work.  Did not consider Mr. M'Coan a bullying man.  He did not shout at people systematically.  He shouted no more at person s in the office than they required.

   Cross-examined: It was 10 o'clock at night, that he saw Mr. Forbes drunk, in his own room.

   Mr. Esau, compositor, said that the alterations in Mr. Forbes' copy were heavier than he had ever seen in a London paper.  Had seen Mr. Fortes drunk two or three times.

   Cross-examined: It was 10 o'clock at night in his room that he saw him drunk.

   Hanno, an Armenian hamal, examined in Turkish, said he had seen Mr. Forbes intoxicated several times.  He used to send out once of twice a day for a piaster's worth of wine.

   The landlady of the house in which the plaintiff lodged - an Italian - said a good deal of wine and spirits were consumed there when visitors called.  Once or twice Mr. Forbes sent t for 20 paras worth of  mastic in the morning.  He did not get raki in by the bottle.

   Plaintiff, recalled by Mr. Harvey, said that he never tasted raki until he had been here for three months.

   After further speeches from the counsel on both sides,

   His Honour summed up, observing that it should not take him long to do so, as the evidence which had been given was not of a very technical or peculiar character, and was just such as that which ought to be decided upon by a jury.  The plaintiff relied upon the letter he received from the defendant, coin firming the telegram the latter had previously sent, as a positive contract to make an engagement for two or therefore years.  If that were so, and the contract was broken, then the plaintiff was entitled to his damages for its not having been carried out.  But the real issue was the amount of damages= to which he was entitled.  The amount might be nominal or it might be considerable.  It would be nominal if the defendant's case were made out to the jury's satisfaction, namely, if they believed that the plaintiff was incompetent and intemperate, because, supposing they had made the con tract as promised in this letter of Dec. 2, and the next week or fortnight after Mr. M'Coan had found out that Mr. Forbes was in competent, intemperate, or incapable of carrying out his contract, hw would have been perfectly justified in rescinding it, because it was the duty of Mr. Forbes when he undertook such an office as that to have been quite certain that he was capable of performing its duties.  It was, therefore, for the jury to consider whether Mr. M'Coan had made out his various pleas of incompetency, and the other grounds, which he had very properly not over-laboured, but which he had a right to bring forward - intemperance.

   Mr. M'Coan's version of the terms which he communicated to Mr. Walker could not have taken any one by surprise; it was just what one would have expected as the conditions of a contract in such a case.  There was not very much difference between the plaintiff and the defendant as to what the duties ought to be, and the jury were perfectly well able on the evidence to decide whether the plaintiff was qualified to discharge those duties and did so.  His knowledge of French he frankly stated in his own letter to be rather elementary.  However, he said he could translate, and that he could understand Voltaire, and he came out certainly on the representation that he could do the work described by Mr. M'Coan.  The jury had heard Mr. M'Coan had said, "I am the best judge whether a man is competent or not."  As a general rule, it was certainly for the employer to decide on the competency of the person he employed, always supposing that, in case of dispute, he could give a judge or jury a good reason for his dissatisfaction. The jury would, therefore, consider whether the supposed defects alleged by Mr. M'Coan, and  which Mr. Forbes denied - his inability to do paragraph writing and French translation, and his using scissors and paste in the compilation of the "Week" instead of writing it originally - were conclusive evidence of Mr. Forbes' incompetency.

   With regard to intemperance there was certainly evidence that on two or three occasions Mr. Forbes was the worse for liquor.  He had given his explanation.  That was for the jury to consider, taking it in conjunction with what Mr. M'Coan had also said that this habit of drinking affected the plaintiff's literary powers.  It was for the jury to decide whether the evidence was such as to satisfy them that the plaintiff was incapacitated from doing his duty by intemperance.  Intemperance might  be of various sorts.  There might be that violent in temperance which unfitted a man for the performance of any specific duty at a particular moment, and there might be even that worse form of it where soaking as it was called - taking "nips" - might render a man both in his nerves and brain unfit for performing his duty. On the other hand, there had been very man y instances, certainly ion  the press, of men who had been addicted to the habit and yet had been far from incapable of performing their duty. However, the jury must judge whether thirds - he could not call it a practice, for it had not been proved to be a practice, but this occasional indulgence - whether it justified Mr. M'Coan's saying that the plaintiff was for that reason incompetent.

   Mr. M'Coan: I merely put it that it contributed to his incompetency.

   Perkins 1-1-018

   The JUDGE: Exactly so - that it formed a part of the reasons which caused the incompetence.  Then there was the point whether the notice of dismissal was accepted.  It was for the jury to say whether Mr. Forbes did accept the dismissal as final.  He certainly did remain on.  It was for them to say, as men of the world, whether his doing so and saying nothing for some weeks was constructively an acceptance of the dismissal.  He positively declared it was not.

   As to the tender, the defendant's offer to pay the plaintiff £16 was not a tender in law, inasmuch as he did not put the money down, but as this was not an action for balance of wages but for damages for wrongful dismissal, that point did not now arise.

   The wrongful dismissal was the real point for the jury, because he (the judge) thought the jury would come to the conclusion that Mr. M'Coan undertook to make a contract, and, not having done so, he was in the wrong, but if the dismissal was justifiable, the plaintiff was only entitled to nominal damages.  If they considered, on the other hand, that the plaintiff was wrongfully dismissed, then they must not suppose that because he was to have £350 a year, they must, in order to obtain the measure of damages, multiply that sum by the period for which the contract was to have lasted.  The rule was the actual loss which had been sustained.  Of course, it was not easy in Turkey to find new literary employment; at the same time Constantinople was not very far from England, and it was generally assumed that it was not difficult for a competent person to obtain n other employment.  If the jury came to the conclusion that the contract ought to have been made under this promise, and that the contract ought to have been maintained now, because Mr. Forbes was competent to perform his duty, then they would make up their minds what the damages should be.  If, on the other hand, they came to the conclusion that if the plaintiff had had a contract, as Mr. M'Coan had said, with ten seals and tern times over, and that after it was made he proved to be incompetent, then Mr. M'Coan had a right to discharge him.

   The jury retired to deliberate, and after an absence of about five minutes agreed to a verdict for the plaintiff; damages, £175.

   The defendant gave notice that he would move the court for a new trial on the ground that the verdict was against the weight of evidence and that the Judge had misdirected the jury.

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