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Colonial Cases

Smith, Kennedy v. How, 1860


Smith, Kennedy and Co. v. How

Consular Court, Shanghai
2 March 1860
Source: The North-China Herald, 31 March 1860



March 2d, 1860.

SMITH, KENNEDY & Co. versus A. J. HOW (Representative of the late firm of JAS. BOWMAN & Co.)

Before T. T. MEADOWS, Esq., H.M. Consul,'

J. WHITTALL, Esq., and R. F. THORBURN, Esq., Assessors.

The Plaintiffs claimed the sum of Tls. 246.6.3, being the equivalent of £81.5 Sterling at the exchange of 6s. 7d. which was the remuneration agreed to, in May 1859 for giving up the consignment of the British ship Chrysolite, from London.

The Defendant in reply said the claim should be against the owners of the Chrysolite and not against them.  An agreement was made for £81.5 in 1859.  The agreement was left in abeyance by mutual consent until he heard from Foochow whether the ship was taken by his house.  The arrangement at Shanghai fell to the ground.  The Foochow house did not take the ship.

H. M. M. GRAY, representative of the House of Smith, Kennedy & Co., sworn states: - The agreement was verbally made with Mr. How for £81.5 to be paid to us in the event of out House taking over the ship at Foochow.  Under any circumstances a commission was to be given to Smith, Kennedy & Co.  The ship went to Foochow, and passed into the hands of Mr. How.  We exercise no authority over the House at Foochow, they received orders from Hongkong.

DEFENDANT admits that the ship was not taken over by Smith, Kennedy & Co.'s agents.

PLAINTIFF'S examination continued: - No order was given by the House in Hongkong not to receive consignment of the Chrysolite.  The House at Foochow was not under any obligation to take the ship.  We were not bound to take over the ship.  There was a possibility of our House taking charge of the ship.  The reason for our not taking the ship although offered was to benefit the ship. (Plaintiff puts in an extract of a letter from Mr. Dick of Foochow to Mr. Hamilton stating the reasons, viz: for the ship's benefit. ) This letter was received in the usual course of business.

DEFENDANT, sworn, states: - I received a letter from the owners stating that the captain would put the vessel into our hands instead of Smith, Kennedy & Co.'s.  The instructions were forwarded through us from the owner to the captain, and if Smith, Kennedy & Co. felt themselves aggrieved he was to pay the claim.  It was agreed that £81.5 for compensation should be paid by the captain's Bill on the owners, and Mr. Gray rejected the offer; (produces memorandum book giving evidence of agreement with Mr. Gray.) If Smith, Kennedy & Co. took the ship at Foochow, Taylor Potter & Co.'s the owners agreement was to stand and we make no allowance; if we loaded at Foochow we to pay the £81.5; we subsequently tendered the ship to Smith, Kennedy & Co. I produce a letter addressed by our Foochow tea-taster handed to me, also I produce a letter from Smith, Kennedy & Co. stating that they could not load the ship; a third party despatched the vessel on his own account.

Cross-examined. - The Bill tendered was the captain's Bill.

H. M. M. GRAY re-examined- The matter of Smith, Kennedy & Co. not taking the ship at Foochow was not discussed by us.


That the Defendant pay to the Plaintiffs the sum of Eighty one Pounds five shillings in a Bank bill on London of thirty day's sight; and that the Defendant pay the costs of the suit.


We assent to the above, J.  W. WHITTALL, R.  F. THORBURN.

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