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Colonial Cases

Cramptons v. Chang Paou Tsoo, 1859

[sale of goods]

Cramptons, Hanbury and Co. v. Chang Paou Tsoo

Consular Court, Shanghai
1859
Source: The North-China Herald, 14 January 1860

 

APPEAL in CRAMPTONS, HANBURY & Co. versus CHANG-PAOU-TSOO.

H.B.M. CONSULAR COURT, SHANGHAI.

CIVIL SIDE.

October 6th, 1859.

CRAMPTONS, HANBURY & Co. v. CHANG-PAOU-TSOO.

Before T. T. MEADOWS Esq., H.M. Consul,

J. BLAND, Esq., G. W. COUTTS, Esq., Assessors.

This was an action brought by the Plaintiff to recover the sum of Tls. 2344.6.1 for reclamations [??] teas shipped by them at the request of the defendant to England and the United States of America in the years 1855 and 1856.

The Plaintiff denied the debt.

T. HANBURY having duly made solemn asseveration to speak the truth, stated:- That in August, 1855, the Defendant Lung Tae (Hong name), requested Messrs. Cramptons, Hanbury & Co. in which house he was a partner, to ship for him teas which he could not sell in Shanghai.  They were low class Skkin teas.  They gave him 1,000 dollars to pay the duties.  At the same time Defendant requested them to ship 95 cases containing 380 boxes of Young Hyson tea, against which he received on August 20th 1855, an advance of 1,062 dollars  The teas were shipped, - 1,174 packages per Metropolitan for New York and 23 packages per Flying Dutchman for London.  The Invoice charges were $776.58

The result of the shipment of 1,174. Packages per Metropolitan shewed met proceeds of $2,599 in Shanghai, after making allowance for exchange.  [Account sales were handed in to Court showing net proceeds in New York $1,381.68.] The Account Sales were received by Plaintiffs in a letter from Westray & Co. their agents in New York, who are general commission agents.  The teas were sold without employing a broker.  Part was sold by public auction by another person, it was the damaged part that was sold by auction.  The 23 packages shipped top London produced L. 106.17.11 yielding at Shanghai $316.31 as per Account sales handed in from W. J. & H. Thompson of London, who, themselves, sold the teas as brokers.  Teas are generally sold by private contract than by auction.  [The Consul here observed that he had doubts as to the legality of receiving the papers produced, but took them provisionally for the guidance of himself and assessors, reserving for himself the right of refusing them.]

The witness then continued, - as to Lot of 1,174 packages he was in New York in May 1855 and was then shown by the firm of Westray & Co. a muster of the tea that they had retained in their possession for the satisfaction of any one who was interested.  The package was in good order outwardly, inside it was caked, musty and unmerchantable.  The Plaintiff recognized the package as being a portion of the tea shipped by his firm; they were whole chests.  On the 13th March 1857, the Defendant requested his firm to advance a further sum of $2,000 on the teas shipped by Metropolitan and Flying Dutchman.  They had not then received an account sales of the teas and they paid him the $2,000 on account.  In America the packages are not examined until they are sold.  In England the broker examines all the chests in the godown and separates the damaged ones.  When teas are sold by private contract they are examined after they are sold.  These facts as to New York are from general report.

In January, 1856, the Defendant wished the Plaintiffs to ship the chop Suey Huay to London, against which they advanced $7,599.59, drawing on London L. 2, 750 at exchange of 6/9 per dollar.  The result was reclamation of $2,247.47 in proof of which the Plaintiffs had the account sales of W. J. & H. Thompson.  The Defendant also requested them to ship 399 packages of Suey-kee chop, which they did per Nightingale for New York.  L. 90 was drawn against this shipment at exchange of 6/9; the result was $2,577.96 to his credit in Shanghai. [Account sales produced, also account current with Lung Tae, the defendants, explaining the transaction.]  The account was closed in December, 1857. They never required Auction bills when teas are sold by Auctioneers, as damaged, the statement of the Agents being sufficient.  Defendant could not state of his own knowledge whether the teas in question were examined by Cramptons, Hanbury & Co. or not.  The defendant has frequently been offered the account sakes but always refused to receive them.

The above mentioned transactions are the only ones that the Plaintiffs have had with Lung Tae in the matter of shipping teas for him.  They had a large amount of teas of their own in the same vessel, the Metropolitan, that were also much damaged.  They found out afterwards that she had sunk in the harbour of San Francisco and was in a damp state, which damaged the teas.

CHANG-PAU-CHIN, the Defendant, being duly warned to speak the truth: - The teas were estimated at $18,694.34 by Cramptons, Hanbury & Co.'s tea taster, Lew, who transacted the whole business, informed him so.

LEW, being duly warned to speak the truth; corroborated the statements of the two previous witnesses; - The black tea was estimated at 16 Tls. Per picul on 644 chests, piculs 428.42.  Sung-kee 399 packages, piculs 172.18, $3,086.29.  The above were delivered to Mr. Hanbury; and to Mr. Crampton 380 boxes, 41 piculs at Tls. 25 per picul on an average, 1,070 packages Skin tea piculs 350.69 at Tls. 7.5 per picul. - 32 packages Green tea, Sung-kee, piculs 12.42 at Tls. 7.

Examined by Plaintiff.  - The substance of his evidence was that the teas should have sold at a profit instead of a loss.

The disputed point is on the 1,102 of low skin tea sent to America.  All the rest being admitted.  With respect to the teas Mr. Hanbury first told this witness that they had been sold for 13 cents - then for 14 cents. - and five minutes later that they had been damaged, and that they had been sold at 5 and 7 cents.

THOS. HANBURY, re-examined - Told the last witness that the teas had been sold at 13 or 14 cents but did not tell him that the whole lot had been sold at that rate. Did not tell him then that the teas were damaged as he did not know it himself.  Was under the impression that the whole lot of teas would fetch about 13 or 14 cents, otherwise he would not have advanced the $2,000.

JUDGMENT.

That no sufficient evidence has been produced before the Court to justify an order for the payment of money and that the Plaintiffs pay the costs of the suit.

THOMAS TAYLOR MEADOWS, Consul.

Assented to by the Assessors.

Appellant's Statement.

Shanghae, 20th October, 1859.

SIR, - I beg to appeal in the above case in which H.B.M. Consul gave a decision on the 6th inst., to the effect "that no sufficient evidence has been produced before the Court to justify an order for the payment of money and that the plaintiff pay the costs of the suit."  My late firm of Cramptons, Hanbury & Co. shipped Tea on account of the defendant in England and the United States in the years 1855 and 1856 on which there were heavy losses and consequent reclamations.

I produced in Court the usual documents to prove the prices at which the Teas were sold, viz: four account sales from our Agents Messrs. Wm. Jas. and Hy. Thompson of London, and Messrs Westray & Co. of New York, these the defendant acknowledged in Court he was satisfied with, and willing to abide by, with the exception of one account sale for 1,174 packages Tea shipped per Metropolitan to New York, and which tea had become damaged in consequence I believe of the steaming of the ship.

I therefore submit that inasmuch as there was a considerable sum due on the three accounts which the defendant admitted as correct, the decision awarding nothing on those three accounts is unjust.

I therefore request that time may be granted me to obtain from New York certificates of damage of Teas and proof of sale of 1,174 packages to satisfy the defendant and that a decision may be given in my favor as far as regards the three accounts which were admitted by the defendant.  I am, Sir, your obedient servant.

THOMAS HANBURY, Representative of the late firm of CRAMPTON'S, HANBURY & Co.

To the Hon'ble FREDERICK BRUCE, C.B., Minister Plenipotentiary and Chief Superintendent of Trade in China.

Consul's Statement of the grounds of his decision to the Chief Superintendent.

The reason for the decision in this cause is given succinctly ion the Judgment itself.

The Chief Superintendent will perceive, from an entry in the minutes, that, at the time of the trial, I doubted the sufficiency of the documents handed in by the plaintiffs as good evidence according to those principles of English law to which the Consul is bound to conform; and a prolonged and careful reference to the latest editions of the two authoritative works,    Starkie and Phillips, have changed my doubts into certitude.

The documents are all purely private papers, and without even that amount of authentication which a public notary's signature and seal would have given them.  The Court had before it the credible testimony of the witness (and plaintiff) T. Hanbury that they were received by him at Shanghai, in the usual way through the post; but there was no evidence whatever to guarantee that they were not fabrications at the place they were sent from.  And whatever the probabilities of such fabrications might be, no Court could put the law into movement and order the payment of a considerable sum of money on mere probabilities.

Further, the documents, such as they were, were not complete.  In the account sales of the Teas shipped per Metropolitan, the Chief Superintendent will perceive 545 packages entered as damaged and sold by auction.  Now the plaintiffs produced no auctioneer's account of these sales.

With respect to the Appellant's request that time be granted him to obtain from New York further evidence, this has already, with [????] a new trial, been preferred to me in a letter which, and of my reply I now forward copies.I discountenanced the application on the maxim, completely established in English Courts, that "a man shall not be twice vexed for one and the same cause."  It is laid down that "the general rule, both in law and equity, is to refuse a second trial where the propriety of the verdict in the foment is not impeached as against law or evidence, though there may be material evidence for the party against whom the verdict has passed which was not adduced, unless it be shewn to have been discovered after the trial, or unless the verdict has been obtained by fraud or surprise.  If mistake in practice or inadvertence furnished reasons for a new trial it would encourage litigation and reward ignorance and carelessness at the expense of the other party."

Now in the trial of this cause, there was no opportunity for frauds on the part of the defendant, who was almost passive in the matter, the burthen of the proof resting on the plaintiffs.

As to surprise, the account sales of the Tea shipped per the Metropolitan are dated New York 30th November, 1856, and must have been received nearly three years ago.

With this, I forward the plaint, the Minutes of proceedings accompanied by six documents (1 to 6) handed in by the plaintiffs, and the statement of the Appellant.  The Respondents informed me that the British merchant who had undertaken to draw up a Counter statement for him, had not been able to do so within the prescribed time.

THOS.  T. MEADOWS, Consul.

Shanghai, 19th December, 1859.

Decision of the Chief Superintendent.

CRAMPTON, HANBURY & Co. versus CHANG-PAOU-TSOO.

I have read with care and attention the documents in this case together with the statement of the plaintiffs in support odf the appeal, and I concur with the consular Court in thinking that the evidence produced in support of the account is not sufficient to justify the Court in decreeing payment of the plaintiff's demand.

Considering moreover the time that has elapsed since the despatch of the tea to New York, I cannot entertain  the plaintiff's request, that a further period should be allowed to him to furbish additional evidence of the results of the sale of the cargo shipped per Metropolitan  to that port, nor can I treat this action in any other way than as one for a balance of account, nor deem payment separately of what may have been realized on one particular item of the several transactions between the plaintiffs and the defendant.

In confirming the sentence of the Consular Court I think it advisable to point out the very great, if not insuperable obstacles, that must always impede the attempts to make transactions, such as the present, the subject of suits in the Consular Courts.  It will be very difficult to produce in support of account sales of goods, disposed of in foreign countries, evidence, which a Court, acting on received judicial principles, could admit as valid against a Chinese defendant, although the foreign Agent would be bound by such of the statements and documents presented, as would make against him.

Perhaps in such cases an amicable arbitration might be resorted to with success; the parties binding themselves to abide by the award of such arbitrators as they might select.  But it is clear that this monde of proceeding can only be adopted, when the parties voluntarily submit to it, and such would not be the case, if either party wished to take an unfair advantage of the other.

In making these general remarks I do not wish to be supposed, that the circumstances of the present suit raise any doubt in my mind as to the fair dealing of Messrs. Crampton, Hanbury & Co.  My object in alluding to the difficulty of dealing with such cases is, to impress on those engaged in this description of business, that they must rely on caution in the selection of agents, and on prudence in making advances, rather than on judicial action for protection of their interests.

I hereby confirm the decision of the Consular Court of the 6th October, 1859, with the costs of the proceedings.

FREDERICK W. A. BRUCE, Shanghai, 31st December, 1859.

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