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Colonial Cases

Wardel and Sherer v. Jenkins, 1867


Wardel and Sherer v. Jenkins

United States Consular Court, Shanghai?
29 July 1867
Source: The North-China Herald, 5 August 1867




July 29th, 1867.

Before W. P. MANGUM, Esq.

And Messrs. LOWE and STODDART associates.


Claim for Tls. 3,123.43.

   This was an action for the recovery of Tls. 3,123.43, alleged to be due to the plaintiffs in final settlement of certain contracts into which they had entered jointly with the defendant.

   The evidence (given below) shows that defendant upon going to Europe made certain arrangements jointly with the plaintiffs, whereby Messrs. Olyphant & Co. had a power of attorney given to them in the joint names of the parties to the Contracts, and were authorized to receive certain monies from Messrs. H. K. Drake & Co., in settlement; that the amount remained unpaid until subsequently to Jenkins' return to Shanghai; that then Messrs. Olyphant & Co. accepted a promissory note for £1,414 in settlement, as they allege with the  sanction and concurrence of Jenkins, though Jenkins denied any remembrance of giving such sanction.

   ... A. S. HAYES. - In July 1863, Messrs. Wardel, Sherer and Jenkins, were going home.  Mr. Jenkins applied to Mr. Tyers, managing partner in our house, and requested him to take over the care of the contracts and carry them out.  Mr. Tyers declined in writing (letters put in).  On the 14th, Olyphant & Co., addressed A. B. Wardel, stating they would make the payments on their account.  Olyphant & Co., were only to receive the amounts and pay them.  Mr. Morrel of Drake & Co., write us a note saying that in consequence of a suit they would forward us a promissory note for the equivalent in sterling of the amount of the judgment.  In all these matters, we acted by the advice and under the orders of Mr. Jenkins, after his return.  We received what Mr. Jenkins requested us to take, and had nothing further to do with the nature of the payments.

   To Mr. ROBINSON. - We received a letter from Mr. Jenkins to Olyphant & Co, dated July 4th, and ordering us to receive the amount from Drake & Co., in Oriental Bank Bills.  Jenkins returned about February 1864 and requested us to apply to H. K. Drake & Co., for the money.  I do not know whether any money were due when we received the payment.  We were uniformly told by Drake & Co., that nothing was  completed.  In December 1864, Olyphant & Co., took the promissory note for £1,414.  I saw the note come to the office.  I do not know whether I wrote or asked Mr. Jenkins about it.  The note became due 15th February; shortly after that I went home, namely on the 23rd February. 

   (A letter was handed in from Olyphant & Co. to Jenkins, saying that the amount of the promissory note collected at his instance had not been paid.)

To this, Jenkins replied that the matter did not concern him in the least.  We had legal power generally to recover moneys, &c., but as mercantile agents we had not.  I returned to Shanghai February 1866.  I have known Drake & Co. two years and a half.  I did not know whether they were solvent or not.

   Re-examined. - The power of attorney (put in) was intended to cover all our business for Jenkins.  There is a letter from Wardel and Sherer limiting our power.  It is also bounded by the document itself.

   J. P. ALLEN. - I had something to do with executing the contracts - the subjects of this suit.  There were twelve shipments of powder delivered and paid for on the basis of the contracts.  There was a suit about them.  I considered them settled at that time.

   To Mr. ROBINSON. - I consider the twelve shipments were completely  delivered.  Each contract was represented by a separate permit issued by the Taoutai.  By an accident Messrs. Drake & Co. used a wrong permit, and we were obliged to use another.  The Chinese Government have paid for all these munitions and the money received by us.  There is a discount of Tls. 2,400.  I paid Messrs. Drake & Co. all the money due from me to them.  When Jenkins returned to Shanghai, he claimed all the documents back from Drake & Co.  An action was brought, and this Court decided that he had parted with them to Messrs. Drake & Co.

   (This closed the evidence for the plaintiff.)

   F. H. B. JENKINS. - I left Shanghai in July 1863, leaving the management of the contracts with Messrs. Drake & Co.  Wardel, Sherer, and myself appointed Olyphant & Co. our attorneys.  They were attorneys to receive the amount due from Drake & Co. the amount payable to Wardell and Sherer; and they accepted the office.  I returned to Shanghai in February 1864.  I applied to Drake & Co. for the documents relating to the powder contracts and they refused to give them up, claiming that they had the right to the benefit of them.  I in consequence brought an action in this Court, and it was decided that Drake & Co. should not give up the documents.  Messrs. Olyphant & Co. were made aware by Mr. Hayes or Mr. Tyers how the amount  was arrived at.  I have no recollection of Olyphant & Co. asking me whether they should accept the promissory note in payment.  I took proceedings against Drake & Co. in this Court and recovered judgment.  There were no proceedings taken against me by Olyphant & Co.  When I had notice of this note being  due, Messrs. Drake & Co. were the owners of the steamer Fee Pang, which was subsequently sold.

   To Mr. EAMES. - The  first I heard about the payment of the promissory note was from Drake, who said he had settled with Olyphant & Co.


   On the 20th May, 1863, the plaintiffs entered into a contract with the defendant to deliver to him twelve shipments of powder at the price of Tls. 600 per shipment, amounting in all Tls. 7,200.  In July 1863, the parties left Shanghai, but previous to leaving the plaintiffs authorized Messrs. Olyphant & Co., as their attorneys, to collect and receive the moneys on this contract and the defendant appointed Messrs. H. K. Drake & Co., his agents to pay the said moneys, and informed the plaintiff's attorney to that effect.

   From time to time Messrs. Drake & Co., paid to Messrs. Olyphant & Co., certain sums of money, amounting in the aggregate to one half of the full amount and in December 1864, gave to Messrs. Olyphant & Co., their own promissory note for £1,414.3.5 sterling in full for the residue of the amount due on the contract.  This note fell due on the 15th February 1865, was not paid, and a suit  was thereupon instituted by Olyphant & Co., against Drake & Co., for the amount, and judgment obtained in their favor.  Afterwards an attachment was issued against Drake & Co., but no property was found to satisfy it.

   After the lapse of nearly two years, this suit is instituted by one of the original parties to the contract against the other original, for the recovery of the amount for which the promissory note was given.

   The plaintiff's attorney knew that the defendant in this case was principal, and bound by the contract, and that Drake & Co., were his agents, and the act of receiving the agents own promissory note, for this particular debts without reference to the principal at all, makes it the agents debts, and consequently discharges the principal.

   I therefore decree for defendant, with costs.

   (Signed) W. P. MANGUM, U.S. Vice-Consul General.

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