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Colonial Cases

Rosenthal v. Bisset and Co., 1871

[detinue - specific performance]

Rosenthal v. Bisset and Co.

Spedding v. Rosenthal

Supreme Court of China and Japan
7 November 1871
Source: The North-China Herald, 15 November 1871




Shanghai, 7th November.

Before C. W. GOODWIN, Esq.

  1. E. ROSENTHAL v. J. P. BISSET & Co.

Action of detinue - the specific performance of a contract.

   Plaintiff in person.

   Mr. Harwood for defendants.

    Plaintiff's case was, that in the end of April last, he instructed the defendants, share-brokers, to buy on his account and behalf 25 shares in the S. S. N. Co., and that defendants subsequently informed him that they had done so for settlement on 1st October.  In consequence, however, of the firm with which plaintiff was connected being in embarrassed circumstances, it was arranged that the contract notes should be made out in the names of some person other than the plaintiff, and he therefore applied to one D. R. Spedding, at Hankow, offering him a half interest in the shares in consideration of his permitting his name to be inserted.  This offer Spedding accepted, and his name was inserted in the contract notes, of which the defendants had notice.  Spedding being afterwards desirous to sell the shares, plaintiff instructed the defendants, about 4th July last, to do so, and on that date they informed him that they were sold for delivery and payment on 1st Oct., but when this time had arrived defendants neglected and refused to complete the contract of sale of 4th July, by giving  delivery in accordance therewith; and, further, were now in possession or had the control of the shares, which they refused to deliver to the purchaser of 4th July or to the plaintiff.  Plaintiff therefore prayed that the defendants might be required to carry out the sale of 4th July, or failing that deliver the shares to plaintiff, and that if they delivered them to any other person, they should be decreed to pay plaintiff, by way of damages, a sum equal to the difference, if any, between the price at which plaintiff purchased them and the market price at the date judgment is given in this cause, together with costs, and such further relief as the case might require..

   Defendants answered generally rebutting the statements of the petition, and the following is a summary of their case.  That about the end of April last, plaintiff instructed them to purchase 50 S. S. N. Co.'s shares, which they did, making out the contract note, also in accordance with plaintiff's instructions, in name of D. R. Spedding, of Shanghai, who refused, however, to sign for more than 25 shares.  On or about 4th July, plaintiff instructed defendants to sell for him 50 shares in the S. S. N. Co., for delivery and transfer on 1st October, but specifying no particular shares, and defendants accordingly did so, and made out the contract note of sale in plaintiff's name.  On the 12th of July, plaintiff was in defendants' office, Mr. Spedding being there also, and told the latter that he had sold the 25 shares for which Spedding had signed the contract notes as purchaser; when Mr. Spedding answered that he had no authority from him to have done sol, and that he repudiated his action in the matter.  Mr. Spedding subsequently instructed defendants to sell the 25 shares already mentioned, which they did, and a contract for the sale and purchase was signed respectively by Mr. Spedding and the purchaser.  Defendants did not know to whom the shares properly belonged, nor had they any interest in them, but acted on the right which was, and is claimed by Mr. Spedding as endorser of the contract notes.

   Mr. D. R. SPEDDING stated in evidence that he had had previous speculations along with plaintiff, but that after 29th March he did not give him authority to purchase shares on his account.  Plaintiff wrote him on 5th May saying that he had bought 50 shares on their joint account, and requesting him to sign the contract notes, enclosed.  To this witness replied blaming plaintiff for having acted contrary to his instructions, but consenting to sign one of the contracts for 25 shares, which he meant \to retain as his own property. Some correspondence afterwards passed about the ownership of these, between witness and defendants, plaintiff desiring to ignore witness' decision as to keeping them to himself, and asking him by letter to ratify a sale of them which he had effected.  This witness refused to do. On returning to Shanghai witness met plaintiff in defendants' office, and there, in presence of defendants, repudiated the sale made by plaintiff as unauthorized.

   Plaintiff produced correspondence which had passed between himself and Mr. Spedding, to prove the partnership in the property.

9th November.

   His Lordship to-day delivered judgment in the above case as follows:

   I have been anxious to decide this case upon the real merits rather than upon any technical point arising on the pleadings, inasmuch as the case seemed to be one of equity rather than common law, and the rules of procedure by which this Court is governed are framed on the model of those prevailing in Courts of Equity, and do not recognize at all the several kinds of common law actions.  All that is required in a petition in this Court is a narrative of the material facts, matters and circumstances on which the plaintiff relies, and a prayer for such relief as the plaintiff may consider himself entitled to, and for general relief.

   I therefore declined to nonsuit the plaintiff on the ground of his admission that he was jointly interested with another person in the property of which he claims delivery, as it appeared possible that he might be entitled alone to some relief for which the joint-owner had no occasion.  Having heard the evidence on both sides, I arrive at the conclusion that the plaintiff's case is rebutted by the evidence of the defendants, and that he cannot claim delivery of the twenty-five shares which are in question, either to himself or to the purchaser of fifty shares under the transaction of the 4th of July.

   The only question in my mind was, had the defendants led the plaintiff from the first to suppose that they had sold the particular 25 shares in question.  If so, they might have been liable to reimburse him for such damage as he might sustain by their afterwards sell the shares to some one else.  But I do not find that this was the fact.  Mr. Mitchell swears that the plaintiff told him that he could not be sure of Spedding's authority (as to selling the 25 shares) but if he disputed it, he (plaintiff) would take it on his own risk.  Upon that Mitchell sold 50 shares as directed.  A dispute having subsequently arisen as to the ownership or interest in the 25 shares, the plaintiff cannot call upon Bisset and Mitchell to decide what his rights are with regard to the other joint or part owner, Spedding.  He had accepted any risk, and Bisset and Mitchell sold on the understanding that if Spedding did not conform the sale they were not to be responsible; - and this action cannot be sustained.  With regard to the relative rights of the plaintiff and Spedding, nothing need be said.

   Judgment for the defendants, with costs.

Source: The North-China Herald, 15 November 1871



Shanghai, 7th November.

Before C. W. GOODWIN, Esq.


Claim for Tls. 390, on promissory note.

   Defendant admitted the obligation, but asked that execution of judgment should be stayed pending the settlement of an action he had raised in the American Court, against plaintiff, on questions arising out of the previous case. [A.E. Rosenthal v. J. P Bisset & Co.]

   After a few remarks, plaintiff consented, and agreed also to receive payment in instalments of Tlsd. 50 a month, by which time the action in the American Court would have been settled.

   His Lordship made an order accordingly.

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