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Colonial Cases

Gilfillan v. Glover and Co., 1865



Gilfillan v. Glover and Co.

Consular Court, Shanghai
10 August 1865
Source: The North-China Herald, 12 August 1865



Before - C. A. WINCHESTER, Esq., H.B.M. Consul.

Sir E. HORNBY, N. LATIMER, Esq., S. BRUERLL, Esq., Assessors.

Shanghai, August 10th, 1865.


The plaint in this case was to the following effect: - That the plaintiff employed the defendants as his brokers to sell the steamer Chusan for the sum of $80,000, at Nagasaki.  And the defendants received the vessel and we offered and could have obtained $80,000 for her.  Yet they did not sell the steamer as they had undertaken to do, whereof the plaintiff has suffered great loss and been put to divers outlays and expenses for which he claims Tls. 28,000.

The defendants pleaded a general denial of the allegations in the plaint.

Previous to opening the case H.B.M. Consul remarked that when it was brought on for trial last year, Mr. E. J. Hogg was one of the Assessors.  In consequence of his inability to attend on this occasion it became necessary to appoint a gentleman to act in his stead.  Sir Edmund Hornby had consented at his request to act in that capacity, and he had also solicited the attendance of Mr. S. Breuell. - It only remained for the parties concerned in the case to decide as to which person they would prefer to act as Assessors in the room of Mr. Hogg.

Mr. MYBURGH suggested that both Sir Edmund Hornby and Mr. Breuell should sit as Assessors.

Mr. EAMES agreed with Mr. Myburgh.

Mr. EAMES said that he had come into the case at a late date, as when it was tried before, Mr. Pollard had appeared on behalf of his client.  He could therefore only take the minutes as he found them/.  From them he discovered that vat the former trial of the case the question of damages was reserved. This, he would remark, had been a very common though not universal practice in Shanghai.

Mr. MYBURGH said he recollected one case in which he was engaged when the question of damages was considered separately.  On that occasion he objected to this making two cases out of one.

Mr. EAMES said that the question of damages had been left out in this case.  From the minutes it did not appear that any objection had been made to reserve the question of damages, and when the plaintiff's case was concluded, it closed with the exception of that question.  He thought it strange how it became understood that the defendants were to adduce additional testimony at this the adjourned meeting.

Mr. LAWRANCE said that when the case was tried Mr. Pollard was not in a position to state the amount of damages, as he had not all the documents bearing upon the cause in his possession.  Mr. Pollard was aware that he (Mr. L.) was going to apply for an adjournment.

Mr. MYBURGH said that as Mr. Eames was not prepared just them to settle the question of damages, and had laboured under some misapprehension, it would be unreasonable for him to insist upon the case being tried as he had contemplated.  He would consent that the liability of the defendants should first be considered and then the question of damages.

Sir EDMUND HORNBY said that there were two questions to be decided - the question of fact and the question of law.  The case for the plaintiff might be considered concluded, but the question of damages still remained.

Mr. MYBURGH regretted that the state of his health prevented him from doing his case justice, and hoped the Court would grant him indulgence on that account.  The action now under consideration was commenced nearly a year ago, and did not in reality come under the jurisdiction of the Court at Shanghai, as all the circumstances which led to it occurred in Nagasaki.  The plaintiff who had all his witnesses in Shanghai finding one of the defendants here, and regardless of the expense to which they would be put and the disadvantage under which they would labor, brought the action here.  He thought the action thus taken by the plaintiff was harsh and vexatious, and that the case should by right have been tried in Nagasaki.  Mr. Lawrance made an objection at the time to the jurisdiction of the Court, which was over-ruled and which should have been note, but was not.

The contract for the sale of the steamer made between the plaintiff and the defendants was alleged to have been broken.  The plaintiff relied upon a private letter written by Mr. Glover to Mr. Maine stating that their firm had been offered $80,000 for the Chusan, but had refused it.  This letter, as he (Mr. M.) would show, was written under a mistaken impression as to facts.  But he would assume for the sake of argument that the facts were true, and he would shew that the defendants were not liable in law.  The plaintiff had not shown that in refusing this offer of $80,000 which was the lowest limit at which the defendants were authorized to sell they had not acted bona-fide and for the interests of the plaintiff.  The presumption in such cases as the present is strongly in favour of the agent.  And he would admit as a point of law that unless bad faith had been proved, an agent could not be held liable in damages.

Such a contract as that before the Court implied on the part of an agent reasonable skill and ordinary diligence; and while the plaintiff had failed to shew that the defendants were wanting in either, the testimony adduced on the part of the defendants showed that they had carried out their duties and instructions with more than ordinary skill and perseverance.  There was abundant proof that every exertion had been made, for, failing to sell the steamer to their customers, they had offered to divide commission with two other merchants should they succeed in selling her.  It should be borne in mind that in China and Japan the course of dealing in such matters is very different from that in European countries. From the evidence it appeared that in Japan steamers cannot be sold without considerable difficulty.  It was evident that Mr. Gilfillan intended that [the] agents should endeavour to obtain a higher [price] than the price specified by him, and he [Mr. M.] thought therefore that had the defendants sold the Chusan for the exact sum mentioned in their instructions, while at the same time there were reasonable grounds for hope that a better price could be obtained elsewhere, they would have displayed negligence not care. Subsequently Messrs. Glover & Co. were upbraided for not selling the vessel at a lower price. 

There was another point which seemed very important.  The limit made was a limit of $80,000, hard cash.  Now, there was nothing to prove that the offer made to Messrs. Glover & Co. was fort cash [payment.  In such cases credit was generally required, and frequently payment was made partly in produce.  He thought he might fairly call attention to the usual course of dealing pursued by the Japanese.  An offer of this kind was not considered by them binding until the contract was entered into and the bargain money paid over.  The natives employed to buy steamers by the Japanese Princes have not the power to ratify an agreement.  Satzuma, for instance, did it himself upon all occasions. He would submit thst if it were decided that Messrs. Glover & Co. exercised due or ordinary diligence, and had not been guilty of malfeasance, the plaintiff was out of Court, and even if they had committed an error in judgment, they could not on that account be considered liable.

But there was another important consideration.  The letter from Mr. T. B. Glove to Mr. Maine was evidently written through a mistake made by his brother, a junior partner in the firm.  In reality no such offer as stated in the letter has been made, and, in the official letter from the house written on the same day and sent by the same opportunity by the express desire of Mr. Glover, nothing was said about the offer.  He thought it right to communicate a fact imparted to him by Mr. Gilfillan's agent.  There was nothing inconsistent or dishonourable in this.  The mistake arose in this manner.In conversing upon the subject with Mr. Duret, one of Messrs. Glover & Co.'s agents, Mr. Glover used the Japanese language as the medium of communication, and it was thus the mistake arose. 

Another question was, how far the firm were bound by a statement made by one partner in a private letter.  He (Mr. M.) submitted therefore that upon the evidence there would be no doubt as to the fact that a mistake was made, but assuming the statement made in this letter to be true there was nothing to shew that the defendants acted in any way but bone fide, and did the best they could as agents, and there was no proof in the evidence of any want of reasonable skill and reasonable diligence.  (Mr. M. quoted Chitty on Contracts, page 6, to prove that the letter was rendered nugatory by the explanation of the circumstances under which the mistake arose.)  There might be cases in which, in consequence of a mistake made by an agent, through culpable negligence and carelessness, his principal suffered damage, but there was but a tittle of evidence to shew that the plaintiff in this case had sustained any loss from such causes.

Mr. LAWRANCE said that after the observations made by his learned friend it would be unnecessary for him to speak.  At this season of the year one speech was generally thought better than two.

Mr. EAMES said that in this case the claim was based upon the culpable negligence of the defendants.  With regard to the letter, it a person makes an admission the burden of proof rests upon him to contradict it.  It was for the Court to decide whether the defendants should have made the statement they did without being sure of its accuracy.  The plaintiff certainly intended that the defendants should get as much as possible for the vessel.  They were, however, authorized to sell it for $80,000.  The question of discretion advanced by his friend he considered correct as to general agents, but he held that when a simple agent is offered a sum up to the limit specified, he is bound to sell at that price.  If Mr. Field's testimony was to be considered so particularly reliable as the defendants thought it, the code of morality on the coast of Japan must be different from that in vogue at home.  Mr. Field wass employed by the Japanese to buy the steamer, and by Messrs. Glover & Co. to sell it to the Japanese.  The laws of agency are very clearly laid down, but the difficulty lies in their application.  In this case, however, it was not difficult to apply them. 

He thought that the firm should be bound by the letter written by one partner. The defendants were guilty of negligence in sending the vessel away before the 22nd of January, as they were distinctly authorized to keep her until that time; in fact, they seemed to act according to their own pleasure throughout.  Although it did not appear that the Japanese had refused to buy, but had merely not come forward, the  steamer was sent away on the 19th of January, and previous to the 22nd they receiver a letter from Mr. Gilfillan authorizing them to sell the vessel for $75,000.  If they had kept her until the 22nd this letter would not have arrived too late.  His view of the case was this, that Messrs. Glover & Co. must prove beyond a doubt that a mistake was made.  They said that the Japanese agents have no power to settle in such matters, and again subsequently that they are not limited to a few thousand dollars.  These statements seemed inconsistent.  If it was true that the gentleman from Messrs. Glover & Co. did not speak French and that Mr. Duret did not speak English and that the conversation about the sale of the steamer was carried on through the means of signs and a few words of Japanese, all he could say was that it was a very unbusinesslike proceeding.  It was a great pity that the system of symbols employed on the occasion had not been perpetuated.

It is laid down that when an agent has misconducted himself, he must prove affirmatively that the loss entailed on his principals has not resulted from such act.  The letter which was the basis of th4 plaintiff's case required explanation; there was something mysterious about it.  He (Mr. E.) held that the defendants had been guilty of misconduct in not keeping their principals properly informed.  Either Mr. Glover must have stated in his private letter what he knew to be untrue or concealed the truth in the official letter, nothing having been said in the letter about the offer.  The question, then, was whether when a positive statement was thus made, the defendants were not liable for it. They seemed to go upon the principal of not letting the right hand know what the left hand doeth.

Judgment was entered for the defendant with costs.


The following is a copy of that part of the letter from Mr. T. B. Glover to Mr. Maine, which bears upon the case.

My dear Maine,

I am sorry to say the Chusan remains here [still] unsold.  I have been waiting an answer from a Prince who offered $80,000 for her.  At this we were authorized to sell her, but I thought it was too little, and would not let her go for less than $85,000; so the man said that he would ask his prince once more.

We would not have kept her had we not had a positive offer.  I have promised to wait for three days, and if a purchaser does not come forward, you shall have her up sharp.

Yours &c.  (Signed) THOMAS B. GLOVER.

(the Fourth Page.)

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