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Colonial Cases

Jarvis v. Smith, 1871

[sale of goods]

Jarvis v. Smith

Supreme Court of China and Japan
2 March 1871
Source: The North-China Herald, 15 March 1871

 

LAW REPORTS.

H.B.M. SUPREME COURT.

March 2nd, 1871.

Before C. W. GOODWIN, Esq.

JARVIS v.  SMITH.

In Appeal.

   Plaintiff, having stated his case at some length, called

   S. J. CLIFTON, who, being sworn, said - I am a commission agent.  About the end of October I was in Mr. Jarvis's shop.  I was not employed regularly, but occasionally attended there for purposes of sale, and at the time in question I was in charge.  Mr. Smith called and wanted a picture.  There were two engravings there.  He said he only wanted one, but I urged him to take the two for Tls. 15.  He decided upon taking one, the price of which I said was Tls. 10.  I am quite sure I said so.  Directly he left the shop I made a memo. (produced) of his name and the order, which I filed.  I asked him for his name and address.  When Mr. Jarvis came home, I told him I had sold the large picture for Tls. 10 - it wasd much larger than the other, which I do nnot withink worth Tls. 5.  The picture was sent to Mr. Smith two days afterwards.  I have since presented the bill to him and he has refused payment.  I afterwards met him opposite Messrs. Coutts and Company, and advised him either to send the picture back or pay the amount.  He said it would damage the walls to take the picture down.

   Cross-examined. - I don't remember your calling except once after the bargain, about a day or two after, upon which the picture was immediately sent down to the Astor House.  I said the pictures were Tls. 15, but that I would enquire of Jarvis when he returned.  You called two days afterwards to ask the reason the picture was not sent down; and I believe Mr. Jarvie sent it next morning. You asked that the bill should be sent at the same time, but it was not sent for some two or three months afterwards.  When I took the bill to you, you said it ought to be Tls. 7 ½ and that you would not pay it.  When we met opposite Coutts and Co., I advised you to send the picture back or pay the bill, and you said it would damage the walls to take it down.

   F. JARVIS, sworn, said - On a day in October last I returned to my shop, and Mr. Clifton informed me that Mr. Smith had called and wanted to purchase a picture or two. I told Mr. Clifton the price of the two pictures was Tls. 15 or the large one Tls. 10.  A day or two after, on returning to the shop, I found this chit on the file, to the effect that the picture was sold.  I entered up the order and sent the picture, and would have sent the bill also had I known that Mr. Smith wanted it immediately.  I do not usually present my bolls monthly. I sent the bill on several subsequent occasions, but Mr. Smith would not pay, and I said in my chits it would be more satisfactory that he should return the picture.  I value the picture at more than Tls 10.

   Nothing appeared in cross-examination.

   T. G. SMITH, sworn, said - One morning I was passing Mr. Jarvis's shop, and happening to look in, his clerk, as I took him to be, asked me if I wanted anything.  I replied that I wanted a picture.  He said he had two, but I said I only wanted one, and asked him the price, pointing out the one I wanted.  He said Mr. Jarvis wanted Tls. 15 for the two, but that he did not know what he would take for that one, and that he would ask him and let me know.  I left and returned two days after, when Mr. Clifton said that he had seen Mr. Jarvis, and that he said I could have either of them for Tls. 7 ½..  Those were his exact words. Upon that I requested him to send the picture, and at the same time the bill.  Some two months after that, Mr. Clifton came to my office and handed me a bill for Tls. 10.  I said there must be some mistake about this, as he himself had told me that I might have either of the pictures for Tls 7 ½ , and that I would call on Mr. Jarvis about it. I did so about four times but neither saw Mr. Jarvis nor Mr. Clifton, only a Chinese employee.  Mr. Jarvis never called on me, but several times sent in the bill for Tls. 10, which I refused to pay.  Shortly after I met Mr. Clifton near Coutt's and we spoke about the picture.  "Well," he said, "you'd better take the bother picture, and pay Tls. 15 for the two, make it up that way."  I replied that I did not want the other, and Mr. Clifton left me.

   Cross-examined - I was given to understand that the two pictures were Tls. 15.  I left the price entirely to Mr. Clifton when I selected the picture, and he afterwards told me you  said I should have either for Tls. 7 ½ . I admit the picture I selected was the best.  I tried to find you to settle it several times.

   His Lordship said he could see no reason for altering Mr. Jamieson's judgment.  Plaintiff's witness, Mr. Clifton, was somewhat inconsistent in the evidence he gave, for he first said he had told the defendant that the price of the picture was Tls. 10, but afterwards admitted that in fact he told him he could not say what the price would be without consulting plaintiff.  The weight of the evidence was certainly in Mr. Smith's favour.  His Lordship did not like Mr. Clifton's evidence, and fully believed Mr. Smith's statement that he returned to learn the actual price and was only then told it.

   Mr. Clifton here begged to be permitted to remark that he had only acted on his own judgment in stating the price on the first occasion to be Tls. 10 subject to Mr. Jarvis's approval.

   His Lordship said he was quite satisfied of the correctness of the decision first given.  No costs.

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