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Colonial Cases

Livingston v. A Wo, 1871

[master and servant]

Livingston v. A Wo

Supreme Court of China and Japan
13 October 1871
Source: The North-China Herald, 28 October 1871




Shanghai, Oct. 13.

Before C. W. GOODWIN, Esq.

J. LIVINGSTON & Co., appellants and defendants,


A-WO, respondent and plaintiff.

   Mr. Bird for appellants.

   Mr. Harwood for respondent.

   Mr. BIRD said the case was one between Messrs. Livingston & Co. and their compradore, who had been in their service from August 1870 to March 1871.  Having been in their employ, the respondent was discharged in March, and at that time or shortly afterwards went before the Consul in Tientsin and formally admitted his indebtedness to the firm (in a document which he handed in ) in about Tls. 4,700, less certain commissions which he had received.  Nothing was then said about the claim which he subsequently brought.  Respondent afterwards went down to Shanghai, presumably to consult with his sureties, who were there, as to the means of payment, and on returning to Tientsin he for the first time broached this claim.

   The document drawn up before the Consul and signed by the respondent was evidence of an account stated, and therefore if a lawyer had drawn up the petition, he would probably have prayed for the opening up of the accounts in order that the plaintiff's claim might be gone into.  In effect, then, the petition in the Court below was for an account to be taken between the parties.  The reason why he made this reference to the document was because, the plaintiff below was indebted to the firm, notwithstanding the sums given in his favour by the lower Court, to the extent of Tls. 2,195.55.  So that he was really writing off his claim against Livingston & Co. by insisting that the accounts should be opened and that they were indebted to him. 

   The case had been appealed from the judgment of the Court at Tientsin mainly on the ground that that judgment was on two points against the weight of evidence.  The plaintiff in the Court below claimed a sum of Tls. 1,745.42, being a loss which he alleged he had sustained by reason of having to account to his employers in one scale of sycee weight, when he had received payment for goods in another scale.  The difference between these did not appear to have been shown in evidence before the Court below, but he (Mr. B.) was instructed that hong-ping was a  weight for sycee used in Canton, and that ching-ping was the scale used in the North - the difference between the  two being ½ per cent in favour of hong-ping.  The difference was only one of weight, the sycee was the same, and the Court below did not seem clearly to understand this, but to have got the impression that there were two kinds of sycee.

   The ground upon which the plaintiff based this claim was that he, selling goods on behalf of Messrs. Livingston & Co., under an agreement by which he was to get certain commissions, was not allowed these commissions; and that having sold goods by the ching-ping weight he was obliged to account in hong-ping - thereby losing ½ per cent. Now there was nothing in the agreement as to ching-ping or hong-ping.   The agreement set forth in the ordinary way that Awo was to be Livingston & Co.'s compradore, and provided that he was to receive certain commissions, stated in a schedule appended.  On a piece of shirtings sold "over" Tls. 2 he was to received 4 candareens, and if sold "under Tls. 2, 3 candareens.  He complained in the Court below that whereas he ought to have received 4 cands., he only received 3.  The learned Counsel wished his Lordship to note that the commissions specified were on amounts over and under Tls. 2.  If respondent had sold, now matter how high, over Tls. 2, he would be entitled to 4 cands., but there was nothing in the agreement to fix the commission when the same was at Tls. 2.  So far as that was concerned, it was for the Court to construe the agreement.  His contention simply was that if the respondent received 4 cans. On the sale it should be in the coin or scale used in the sale, whether ching-ping or hong-ping.

   His Lordship thought there could be no doubt about that.

   Mr. BIRD continued - He trusted to show, from the evidence of the respondent, that he had received all the commissions due to him.  The respondent had claimed that he was entitled to ½ per cent on the gross sales during the eight months, for loss in exchange.  In his own evidence he said - that when he signed the agreement he understood he was to get two per cent on whatever sales he made, in the silver he received; that he had received silver in ching-ping weight, and had deducted his commission.  What more could he want?  Therefore, they had respondent's own statement that he received ching-ping silver and took off 4 candareens in ching-ping, which was all he was entitled to.

   Respondent, in his evidence, explained firstly what he meant by the agreement when he signed it, what was the custom of the port, and that he had taken off his commissions accordingly.  The learned counsel submitted that the claim made in the Court below was really a frivolous one - some of it even for cumshaws and dinners given to Chinese at New-year time, which the Court below had of course disallowed.  That Court had asked why plaintiff had only made his complaint after 8 months and the answer was that "if the same amount of business had been done by Mr. Forbes as when Mr. Livingston was there, I would not have claimed;" but the learned counsel failed to see that the amount of business done had to do with the amount of commission respondent had a right to receive. 

   He first contended therefore that the plaintiff had received all he was entitles to, and that, second, he had no right to claim anything at the time he did.  By his own admission he was indebted to the firm in the sum of Tls. 4,700, money received by him for their goods which, when he was asked to account for, was nowhere.  In the agreement it was expressly stipulated "and also shall be just and faithful to the said J. Livingston and Co. in all business transactions whatever;" and yet here was the man admittedly indebted to his employers in so large a sun, after so short a term of service.  If the Court would look at respondent's conduct in having been eight months without making any objection, though his accounts were settled up monthly, and at his going to sign the document acknowledging his indebtedness without making any mention of his present claim, then coming to Shanghai, seeing his sureties and returning to Tientsin and for the first time setting up a claim, it would be seen how the claim arose - the sureties had advised him, as he was unable to pay the money, to enter a counter claim.  He commented on other items as touching the bona fide character of the claim generally.

   He then referred to the evidence of the defendants, to show that it corroborated that of the plaintiff.  Mr. W. Forbes had sworn that the plaintiff invariably compared with the firm the sales of goods in hong-ping sold by him in ching-ping, previously deducting his commission.  The accounts were compared monthly, and defendant positively swore that plaintiff never made any objection to the conversion of ching-ping into hong-ping.

   Some discussion occurred as to the question of exchange between the two scales of sycee.

   Mr. BIRD next proceeded to comment on the 2nd point appealed, viz: a sum of Tls. 252 claimed for passage expenses of 15 servants taken by the plaintiff to Tientsin, and contended that it should not have been allowed by the Court below, as by the agreement plaintiff was to provide all servants.

   Mr. HARWOOD was not prepared to contend the point.

   Mr. BIRD would then merely submit that the Court below was without proof of the correctness of Plaintiff's claim of ½ per cent on Tls. 349,083.42 being Tls. 1,745.42 - they had no proof that this was the correct amount of commission due to him on his sales, and upon him lay the onus of proving that it was.

   Mr. HARWOOD said the only question in dispute was whether A-wo was entitled to recover from Livingston & Co. the sum of Tls. 1,745.42 - the loss from accounting in hong-ping sycee, for moneys he had received in ching-ping sycee.  It was the custom for the natives in Tientsin to pay for goods in the ching-ping sycee and for foreigners to keep their books in hong-ping, the latter beinbg one-half per cent more valuable.  A-wo, whilst in the service of the appellants, sold goods amounting to Tls. 349,083.42; it was admitted by Mr. Forbes that A-wo had received this sum in ching-ping sycee and, after deducting his commission, had accounted to Livingston & Co. for the balance, which they had debited to him in hong-ping sycee.  He then produced the contract book of Messrs. Livingston & Co., from which he endeavored to clear up the difficulty regarding the difference of sycee.  The book was in the hand-writing of Messrs. Livingston & Co.  It contained  two columns, one headed ching-ping, the other hong-ping; in the 1st column it would be seen that the price was entered at which the goods were sold; the second column , although headed hong-ping was simply the amount of the sale in ching-ping after deducting the commission allowed by the agreement.

   He then drew the attention of the Court to the first item in the book, which was 14 bales of T-cloths, sold at Tls. 1.40 per piece ching-ping, and A-wo had been debited with Tls. 1.37 per piece in hong-ping; his commission under the agreement was three candareens per piece, and he should only have been debited with Tls. 1.27 in ching-ping which, converted into hong-ping, would only be Tls. 1.36.315.  The like system had been followed all through, and the loss to A-wo, in consequence thereof, was Tls. 1745.42, the amount of one-half per cent upon Tls. 349,083.42.

   In the agreement there was nothing compelling A-wo to account in hong-ping for the monies received by him in ching-ping.  It had been contended in the Court below that it was the custom of the port for compradores to do so, but a custom must be reasonable, certain, have been continued without interruption and be compulsory.  That such a custom did not exist at Tientsin as was represented was sufficiently apparent upon the evidence.  Mr. Bird had laid great stress upon the letter or acknowledgment of 20th May granted by the plaintiff, and also upon the fact that A-wo had accounted to the firm in hong-ping sycee.  The document however was signed under the impression that there was a balance in Messrs. Livingston & Co.'s hands.

   Mr. BIRD said that was not evidence in the Court below; A-wo had never said so in the Court there.

   Mr. HARWOOD then contended that the difference in exchange was what his client was entitled to.

   His Lordship said plaintiff could not have had his eyes open.

   Mr. BIRD. - Trust a Chinaman for that.

   His Lordship said it was incredible otherwise that he should have gone on doing so.

   His Lordship then stopped Mr. Harwood, and sustained the judgment for A-wo, the plaintiff, on the point regarding exchange, referring the matter to Chambers for examination, by the officer of the Court, of the books and accounts, to check the claim.  Each party to bear their own costs.

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