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Colonial Cases

Robinson v. Pallant, 1871

[partnership]

Robinson v. Pallant

Supreme Court of China and Japan
30 January 1871
Source: The North-China Herald, 1 February 1871

 

LAW REPORTS.

SUPREME COURT.

Jan. 30th, 1871.

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

  1. ROBINSON v. B. PALLANT.

Claim for Tls. 353, value of certain ponies belonging to plaintiff sold at auction by defendant.  Defendant paid into Court Tls. 15 on account of one pony.

   Plaintiff stated his case to the Court.  It was as simple as could be.  The facts briefly were that Mr. Bidwell and himself had been jointly interested in two ponies called "Vertugadin" and "Nous Verrons."  Plaintiff's interest in one was three-fourths and in the other one-half.  About a month before the Race Meeting he gave Mr. Bidwell intimation that he did not intend to take any part in the Meeting, and that gentleman therefore ran the ponies himself.  Immediately after the meeting Mr. Bidwell wrote to ask what was now to be done with the ponies and plaintiff said they should be sold, and that if he (Mr. B.) called on him, he would give him instructions regarding their disposal.  Having carried out this arrangement, plaintiff instructed Mr. Pallant, and, in accordance with his directions, the latter sold them at auction, when they were bought for plaintiff.  About a week after the sale, Mr. Pallant came to say that Mr. Bidwell wanted to be paid for the ponies, to which plaintiff objected; but as they had been bought for him by Mr. Higson, granted Mr. Pallant a cheque for the whole amount, intimating to him at the same time that he looked to him to be paid his share in the ponies from the proceeds of their sale.

   Plaintiff, being sworn, stated - I and Mr. Bidwell were joint-owners of the two ponies mentioned in the petition, and my interest was three-fourths in one, and half in the other.  On the 8th of Nov., I received a letter from Mr. Bidwell, asking "How about the ponies, and are they not to be put up for sale to-morrow?"  In answer to that I requested him to call on me the same day, and said that the ponies should not be sold on the following day.  He did call, and I arranged with him that I should give instructions to Mr. Pallant to have the ponies sold.  On the 10th I saw defendant, and gave him instructions about advertising them.  I also told him the extent of my interest and Mr. Bidwell's, and I desired him to send account sales of my interest to me, and of Mr. Bidwell's to him.  I told him, at the same time, that I should send him one of my carriage ponies for sale and two other horses.  Defendant advertiser and sold the ponies, according to my instructions, for a sum of Tls. 450 the two, for which I hand in a receipt given by him.  After he had done so, I applied several times for the account sales, but never got any.  Mt. Higson bought the ponies, at the sale, for me, and I sent directions after, and told him not to render the debit note to Mr. Higson, but to send me the account, and I would give him a cheque for Mr. Bidwell's share.

   He made no objection of any sort, and appeared to have so little difficulty as to doing wheat I instructed him that, when I saw him, on the 29th Nov., at his place, and told him I should send a delivery order for "Vertugadin," he then asked me about his clothing, because Mr. Bidwell had asked for it.  I told him it was of no moment, that he might send it to Mr. Bidwell.  On the 30th November, for the first time, I received from Mr. Pallant a not of Mr. Bidwell's claim to the whole purchase money.  I objected, inasmuch as the account of the sale was made up against the name of Mr. Higson, and I had handed him a cheque for Tls. 450, together with a letter stating that it was for the purchase of them when bought by Mr. Higson, and for my share of their keep.  Immediately after handing him my letter with the cheque, I also handed him one, on the same day, requesting account sales for my share in the ponies, stating the probable amount, and giving him notice that, if he parted with the proceeds of my property, I would hold him personally responsible for same.   I could get no account sales whatever.  I have received account sales of "Moonshine," since this action was brought, but that, though entered in the petition, forms no part of the question in dispute.

   Defendant had no questions to put to witness.  Being sworn, he stated his case as follows:-

   I first received the two ponies "Vertugadin" and "Nous Verrons" from Mr. Bidwell, deliverable to his name, from the 17th to the 31st October, and then from the 1st Nov., to the 24th, on which latter day they were sold, and Mr. Bidwell, of course, ceased to be their owner.  On that day the ponies were put up to auction by order of Mr. Bidwell, without limit.  The sales are entered in my books by me, with Mr. Higson as buyer and Mr. Bidwell as owner and seller.  On the day following I sent the account to Mr. Higson, who told my shroff to go to Mr. Robinson with it.  Mr. Robinson wrote to me saying there was no necessity to collect this amount, but to render him the account sales.  I then spoke to Mr. Bidwell, telling him that Mr. Higson had sent the account on to Mr. Robinson and what he said.  So Mr. Bidwell made the remark "what have you got to do with Mr. Robinson?  They are my ponies and I told you to sell them."

   I then wrote to Mr. Higson, telling him that if he bought ponies at auction I should request him to pay, as Mr. Bidwell had asked me for account sales.  Mt. Higson said Mr. Robinson would settle the account, and take delivery of the ponies.  On that day I received a cheque from Mr. Robinson for the amount, and also a letter in which he authorised me to deliver them to his order.  O paid Mr. Bidwell the money, for which I hold his receipt.  Mr. Robinson then threatened me with proceedings and Mr. Bidwell having given me the instructions I could do nothing.  I received instructions from both, but the gentleman who gives me delivery is the one I recognise to be accounted to.

   Cross-examined by Mr. Robinson. - It was you who first instructed me to sell the ponies.  You told me how to advertise them, and fixed the date of sale.  The advertisement appeared several days.  After seeing you, I went to see Mr. Bidwell, and told him that you had said "Nous Verrons" and "Vertugadin" should be put up on the 24th, and he assented.  You did not till the second occasion tell me your interest in the ponies.  I am under the impression you came in to me a second time, and told me not to forget them at the sale, which I thought was because they were not advertised continuously up to that time.  I think that might have been about the 22nd.  I don't know whether I told Mr. Bidwell that I should send account sales to you.  I have some recollection of your speaking of your share in the ponies, and I said I supposed it did not matter, that you could settle that between you, or something like that.  I do not recollect your asking me directly to send account sales to you.  You said you had a share in the ponies, and Mr. Bidwell had also.  More I do not remember.

   Mr. ROBINSON desired that the witness would reply directly to the question he was purring, and not attempt to fence.  He again asked him - "Do you remember my referring to the subject of account sales when I gave you your instructions?"

   Witness - On the first occasion we spoke about the matter you gave me the instructions, and on the second there was something said about that, and I made the remark that I could not pay both of you.  I put Mr. Bidwell down in my list because, though you first told me to sell the ponies, they were delivered to me by him and sold with his consent.  I looked to him, without asking any questions about the share each might have in the ponies.  I did not know of, nor did not refer to, and dispute or difficulty regarding ownership between Mr. Bidwell and you before the sale.  I could not render the account sales to you, although you gave me instructions to sell, because these instructions were not good enough to act on without Mr. Bidwell's permission, and because I had been asked to render them to Mr. Bidwell on the day he gave me this receipt.  The date on that is the 3rd, and I think that must be the day I did so.  I paid him in a China bank order and tael notes, to what amount I do not know exactly.

   Mr. ROBINSON asked whether it was not Tls. 450, less witness' commission of Tls. 27.50?

   Witness - I cannot exactly say, as Mr. Bidwell owed me for about two months keep of the ponies at livery.

   Mr. ROBINSON. - How much?

  Witness - About Tls. 100.

   Mr. ROBINSON pressed for a more definite answer.  He desired here to test the witness' credibility.

   Witness - I think it was about Tls. 150, and I will swear it was not Tls. 200.  It was for keeping the ponies at livery, training balls, &c., from the time they came, at Tls. 25 a month for each.  They began training on the 17th of October, and the 2nd November was the day of the Races.  That makes a fortnight, not two months.  I charge Tls. 12 for them after the Races.  Some of Mr. Bidwell's items must have been owing four or five months, but at the time of the sale of those ponies I was not paid.  I never considered whether, if I rendered the account sales in the way you told me, Mr. Bidwell's share would have been enough to pay what he owed me.  I came here in November 1862, and was appointed manager of the Horse Bazaar in March 1865.

   Mr. ROBINSON asked the witness whether he did not know, as a matter of fact, that at the last meeting and for two previous ones "Vertugadin" was partly owned by him.

   Witness - I was given to understand, though not directly, that you were joint owner with Mr. Bidwell and Mr. Ferguson of some ponies.  I know in the same way that Mr. Ferguson having left, the ponies belonged to you, including "Nous Verrons."  

   H. S. BIDWELL, called by defendant, swoern, said - When I sent the ponies to you, I did not mention Mr. Robinson's name.  The delivery accounts were in my name.  I gave you permission to sell the ponies, when you told me of Mr. Robinson's having spoken to you.  After the sale I saw Mr. Higson, and asked him to pay you for the ponies which he bought.  I told him they were sent by me, that you took your instructions from me, that I had asked you to send me the account sales, and in fact that I looked to you for it.  You paid me the money, and that is the receipt I gave you.  I told you the reason was that I had the livery of the ponies to deduct, since last May, and that I would  deduct it and my share from the account sales and send to Mr. Robinson the balance. You were responsible to me for the ponies, without any reference to Mr.  Robinson's interest in them.  I gave instructions for you to sell them with Mt. Robinson's consent.

   Cross-examined by Mr. ROBINSON. - I said I received the money, the nett proceeds, Tls. 450, less Tls. 27 1/2.  I received no coin, but a Chinese bank order and tael notes, the exact amount of which I do not remember - I think it was about Tls. 300.  I asked Mr. Pallant to deduct my private account - it was in fact all my private business with Mr. Pallant.  You and I agreed together mutually that the ponies should be sold.

   Mr. ROBINSON pressed the witness to arrive at the nature of this arrangement.  Had he ever authorized witness to instruct Mr. Pallant to sell.

   Witness - In those words you did not.  On the mutual understanding I acted, as having your permission to sell.  I do not remember, but I may have written to you on the 8th November, for permission to sell the ponies next day.  I see a note which I wrote, and on your answer, which I have not got; I went round to see you on the following day, when we agreed that the ponies should be sold without reserve.  You said you were going to the Horse Bazaar and would tell Pallant to sell them.  Your interest in "Vertugadin" was three-fourths, and in "Nous Verrons" one-half.

   Mr. ROBINSON then asked on what ground did the witness claim a right to receive property which was his?

   Witness - In the ordinary course of business, I having sent the ponies and given instructions, and Mr. Pallant only knowing me in the matter.  But I must say I consider these questions very petty.

   His LORDSHIP suggested that the witness only claimed to deal with the property of the plaintiff as a partner therein.

   Mr. ROBINSON observed that was a question he would come to argue upon presently.

   Witness - I dealt with the property, as I had to charge you with the livery.

   Mr. ROBINSON asked for a straightforward answer to his question, why witness claimed to receive the proceeds of his interest in these ponies?

   Witness - I claim it as a matter of right in the first place, that Mr. Pallant should hand the whole to me, in order that I should deduct the amount of the livery.  I never made any claim upon you for keep of the ponies.  You asked me to send in your account repeatedly, but I did not think it necessary to do so.  I may mention to the Court that Mr. Robinson, some time in the spring, handed me over the ponies, to do whatever I liked with them, and on that I acted, and went to considerable expense to look after them properly.  I took a share in the ownership of them chiefly to oblige Mr. Robinson.  I consider this action nothing but a vicious persecution on the part of Mr. Robinson.

(To Mr. Robinson.) - Though I had permission to do anything I liked with them, I would not, out of politeness, have sold them without reference to you.  I repeatedly asked that they might be sold.)

   His LORDSHIP said he should now like to hear plaintiff's definition of the nature of the partnership in the owning of the property.

   Mr. ROBINSON said it appeared ton him that there was a little conflict of testimony, and he would ask the Court to consider, by the character of the replied and the demeanour of the wiriness, on which most reliance should be placed.  Mr. Pallant had said that he had not been told to send account sales in proportion to their interest in the property, to Mr. Bidwell and to himself (Mr. R.), while he had sworn that he had, both as to that and to advertising the sale.  He had handed to Mr. Pallant his instructions, and if Mr. Pallant considered he was not bound to take those instructions he might then have objected to do so.  But, having taken them, it was not in his power to set up the right or any other person whatever.  He referred the Court to the case ot Nicholson v.  Knowles, in Roscoe's Digest of the Law of Evidence.  Mr. Pallant had received certain instructions from him, and it would have been perfectly immaterial that defendant should have assented to them.  But they were assented to, and defendant became his servant, following out the instructions for reward, and leading him to believe that he was doing so, and it was not competent for defendant afterwards to turn round and say that he had elected only to be bound by those of a third party.  As to the question of partnership the Court would see how truly unjust it would be if an agent, having express instructions from two principals over certain property, chose subsequently to ignore one.

   His LORDSHIP observed that having the properly entrusted to him by one, he might feel at liberty to abide by him throughout the transaction.  A third party was not necessarily supposed to be cognizant of the arrangement between partners or of differences which might arise between them.

   Mr. ROBINSON admitted that to a certain extent; but he having told Mr. Pallant to sell the ponies, and to account to him for his share, and Mr. Pallant having gone to Mr. Bidwell and gained his consent to those instructions, was bound to act upon them throughout.  What could be more unjust, or more discreditable, than to receive these instructions and disregard them in their effect?  And what was the motive?  It was as clear as possible that Mr. Pallant, having a private debt of long standing owing to him by Mr. Bidwell, was anxious to settle the matter in this way.  As a question of law, he stood in the relation of principal to the defendant; that the latter had been employed by him to sell certain property, for which defendant should have accounted to him, and that, having failed to do so, he claimed to recover it from the defendant.

   His LORDSHIP observed that there were two principals concerned, and the defendant mentioned that he sold on account of Mr. Bidwell alone.

   Mr. ROBINSON did not find that was stated in evidence, but that Mr. Pallant had said he took his (Mr. Robinson's) instructions to sell, obtaining Mr. Bidwell's assent thereto.  That point was established by the first question put to the witness, to whom plaintiff had, by those instructions, incurred a personal liability, inasmuch as he became responsible for the expenses connected with carrying them out.

   His LORDSHIP said the defendant knew, by common report, that plaintiff was part owner with Mr. Bidwell, but the latter having placed the ponies with him, he had recognised him as the partner affecting his dealings with them, and to him (His Lordship) the defendant's course appeared a perfect performance of his duty to the partnership property.  If the plaintiff went into a partnership, he must take the consequences arising from it.  His Lordship considered that there was no real discrepancy between the testimony on each side, and that, under the principles of partnership, the defendant had a right to act as he dir, and that there was no injustice done.\

   A verdict was recorded for the defendant.

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