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Colonial Cases

Lang v. Edbrook and Mawhood, 1871

[breach of contract]

Lang v. Edbrook and Mawhood

Supreme Court of China and Japan
27 March 1871
Source: The North-China Herald, 29 March 1871




March 27th, 1871.

Before C. W. GOODWIN, Esq., Acting Chief Judge.


Claim of $40 for advertising.

   This case was brought up for re-hearing on the appeal of the defendants.

   The defendant Mawhood said re-hearing was claimed on the ground that the Law Secretary had mistaken the evidence in regard to the existence of the original contract.  The only thing he wished to add to former evidence was that in the course of correspondence Mr. Lang had written him holding him responsible for the whole year.

   His Lordship thought that would be rather in plaintiff's favour.

   The defendant only mentioned it to prove that there was a contract for a year, the issue being as to the terms of that contract.

   His Lordship observed that the accounts of the transaction were so far obscure that the Law Secretary had a difficulty in determining what the contract was.  Had plaintiff any new evidence to produce?

   Mr. LANG said he wished to bring forward Mr. Macgregor again, to being out one point.  Mr. Mawhood had said the first account was made out for $28, if so it was simply a clerical error.  Mr. Mawhood said he had written on that bill that he could not understand why $28 were charged.  The corrected bill for $20 Mr. Mawhood professed not to have opened.  Mr. Macgregor was prepared to say that he saw the bill opened in presence of both defendants, and that no objection was made to the rate but to the time.

   Defendant said no objection had been made at that time because the contract having been for payment in advance he was under the impression that two quarters were charged.

   Mr. LANG thought that was not consistent with defendant's other views of the contract, for they were then only in the first quarter.

   His Lordship wished to know if the parties were agreed that there was an understanding to disregard the last two months of 1870.

   Mr. LANG said he had only conceded that conditionally on Mr. Mawhood's paying up before China New-year.

   The statements and arguments made at the previous hearing were here repeated, and

   His Lordship, having referred to the defendant's order regarding the advertisements, noted that they were sent as "two separate cards," with a request to know for what "the same advertisements" would be inserted, and he though this letter in favour of defendant.  As to the presentation of the account and remarks then made by defendant, he would take Mr. Macgregor's evidence.

   N/ MACGREGOR,             called, sworn, said - I collect those accounts which the compradore gives up, and I have been employed at the Courier office since about the middle of December.  The first bill was put into my hands in February.  It was for $20.

   His Lordship said he should like to have seen this hill, which ought to have been produced.

   Witness continued - The date I can't remember, it was for one quarter.  The last time I saw Mr. Mawhood, and asked if Mr. Edbrook was there.  He replied that he was not, and I did not present the bill to Mr. Mawhood.  I called several times, and was always told Mr. Edbrook was up-country and had not come back.  I first presented the bill after Mr. Edbrook's return, when I found him with Mr. Mawhood.  Mr. Edbrook opened it and asked Mr. Mawhood some question, and seemed   rather put out about something in the bill.  Mr. Mawhood answer seemed to satisfy him, being to the effect "Yes, I did it."  The bill was returned to me with some observation by one of them with regard to postponing payment.  I called again within a day or two, and saw Mr. Mawhood, who looked at the bill and passed some remark upon it to the effect "Was this for one quarter?" and then objected to the amount as being an overcharge.  He said that he had an agreement for $40 a year.  I asked him whether the agreement was in writing, and he said it was not.  I then asked him if he had made it with Mr. Carman, and he answered "No;" and I said I supposed it must have been with Mr. Lang, when he said in rather an irritated sort of manner, "Oh, they know, they know."

   His Lordship observed that some objection seemed to have been made the first time the bill was presented by the witness.

   Mr. LANG remarked that there as some talk but no objection.

   His Lordship then made some enquiry as to the scale of charges, remarking that the amount allowed on the last hearing was based upon that scale.

   His Lordship thought he must cut the knot.  Defendant was not bound by this scale, the transaction being a matter of bargain; and he also seemed to have some reason for thinking that he was contracting for $40.  His Lordship would therefore vary the Law Secretary's judgment in so far as to make the order for $20 instead of $35, with divided costs.

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