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Colonial Cases

Wakefield v. Adams and Johnson, 1865

[common money counts]

Wakefield v. Adams and Johnson

Consular Court, Shanghai
16 March 1865
Source: The North-China Herald, 18 March 1865

 

H.B.M. CONSULAR COURT.

Before - SIR HARRY S. PARKES, K.C.B., H.B.M. Consul,

E. H. LAVERS, T. S. BORRODAILE,  ASSESSORS.

16th March, 1865.

F. WAKEFIELD versus A. J. ADAMS and W. G. JOHNSON.

The Plaint was to the following effect: - Plaintiffs sues defendants for Goods sold and delivered to them by him, for money received by the defendants for his use, for money found to be due from the defendant to him on account stated between them, and for interest upon and for the forbearance at interest by the Plaintiff to the defendant's request, of money owing from the defendant to him; and the Plaintiff claims £500.

To which the defendants answered that they were not in any way indebted to plaintiff, beyond the amount of the account-sales rendered to him, viz: £129.13.7, which sum he had declined to receive.

Mr. LAWRANCE said that he appeared as plaintiff in this case, acting as attorney for Mr. Wakefield of London.  In the month of August 1862, certain goods were consigned by Mr. Wakefield to the defendants, to be disposed of in Shanghai; they went in the same vessel with the defendants.  A long time having elapsed without the receipt of advices of the sale of the goods, he (Mr. L.) was instructed by Mr. Wakefield to enquire into the matter.  He accordingly communicated with the defendants and learned from them that some of the articles had been sold, and an account-sale was rendered.  This was sent home, but not being found sufficiently minute, an amended account-sales was procured and forwarded to England.  He (Mr. L.) was instructed by Mr. Wakefield that the amount tendered by the defendants did not include certain of the articles in their hands, and the plaintiff consequently refused to accept it.  He then made further enquiries, and proposed to the defendants that they should pay a certain sum for the goods mentioned as not producible.  The defendants replied that some of them, crinolines and bonnet shapes, had been sent to San Francisco, not having met with a ready sale in Shanghai.

In San Francisco, however, a heavy duty was found to be imposed on such articles, and they could not therefore be disposed of these with profit.  The question was how long the plaintiff was to wait, while the goods were being thus transmitted from place to place.  The proposition to pay a lump sum for them was refused and he (Mr. L.) had therefore no alternative but to bring the case into Court.

Mr. ADAMS said that he was willing to pay the amount of the account-sales, but that he was not liable for anything further.  As to the crinolines and bonnet-shapes - Mr. Wakefield himself was the manufacturer, and they were sent out for sale to Shanghai.  Not being able to dispose of them here, he (Mr. A.) sent them freight free to San Francisco, but there being a tax of 66 per cent prohibitive duty on them there, they were sent on to Honolulu, where the crinolines were being sold by retail, and the bonnet-shapes met with no sale at all.  It was by Mr. Wakefield's express wish that the risk was taken of sending the goods out here.

E. LAWRANCE, duly sworn, said: - As the first account-sales did not go sufficiently into detail I applied for another and received this amended account (handed in.)  On receipt by Mr. Wakefield's attorney of the last invoice which I sent, I received a letter (handed in) complaining of some of the goods having been entirely omitted.  Upon receipt of this I applied to defendants, acting on the full power given me by Mr. Wakefield, and, in order to settle the dispute, took this account-sales from the defendants (handed in), and sent it home.  Mr. Wakefield was not satisfied, and I wrote proposing the offer by the defendants of a definite sum for the crinolines and bonnet-shapes.  I received a letter from defendants declining this proposition, on the ground that it would be almost impossible to fix the price of these articles.  On my return to Hongkong I wrote again to the defendants saying that I would take measures for recovering the whole unless the cost already incurred, amounting to about Tls. 200, were defrayed in addition to the sum which I had already proposed to them to pay.  This they declined, and I had no alternative but to bring the affair into Court.

This closed the case for the plaintiff.

... J. ADAMS, duly sworn, said: - The goods were originally in Mr. Wakefield's shop.  He had no means of disposing of them, and they were hardly worth going to auction.  They were lying for two years in my employer's office.  It was eventually decided that they should go to auction, but Mt. Wakefield hearing that I was going away, asked me to take them with me to dispose of them.  I agreed to do so, not knowing anything at the time about the place I was going to.  I was instructed to do the best I could with them. They were unsalable in England.  On my arrival here, I sold the goods mentioned in the account-sales rendered.  I sold them for Tls. 414.96.  Some of the goods were of such a nature that they would not sell at any price. There were some high stocks with buckles at the back, and some night-caps.  Also handkerchiefs priced at 10s. 6d. a-piece.  The crinolines and bonnet-shapes were not sold.  I have not as yet received any account-sale of them: the last I heard was that they were being sold by retail.  I have no direct correspondence with Honolulu.  I acted through s thitrd person.  I don't think I could possibly have done better than I have done with the goods.  I acted with the advice of other persons.

To Mr. LAWRANCE: - I saw these goods in my office for nearly two years.  The goods were made up in a hurry on the day of my departure.  They were not until then intended for shipment; they were to have been sold by auction.  The goods were on Mr. France's bill of lading and I communicated with Mr. Wakefield only though Mr. France.  All the things were old-fashioned.  They were three years old.  There was a lot of sleeve-links and brass pins which were all sold for a dollar.  We could not sell the goods at a profit.  There was no demand for them.

Mr. LAWRANCE said that in the absence of Mr. Wakefield it was difficult to contradict any of the statements made by the defendant.  It appeared strange, however, that a merchant, holding, as he presumed, a respectable position, should send goods in the manner asserted by the witness.  The question for the Court to decide was whether if the crinolines and bonnet-shapes were not disposed of for ten years, was Mr. Wakefield bound to wait all that time for the amount realised by their sale.

W. G. JOHNSON was then put in the witness box for the purpose of verifying on oath a statement which he had previously made: - Mr. Wakefield told me distinctly that if the goods did not sell in Shanghai, we might ship the bonnet-shapes and crinolines to any part of the world.

The following is the purport of the Judgment: - The Court held that the defendants did the best in their power to dispose of the goods advantageously.  That the plaintiff was to receive from defendants the sum of £123.13.7, the amount of the first invoice, and the amounts of the second and third invoices as they were received from the places to which the goods had been despatched. Costs to be borne by the plaintiff.

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