Skip to Content

Colonial Cases

Sung Qua Dung v. Mayne, 1872

[master and servant]

Sung Qua Dung v. Mayne

Supreme Court of China and Japan
5 and 22 February 1872
Source: The North-China Herald, 8 February 1872

 

LAW REPORTS.

SUPREME COURT.

Shanghai, Feb. 5th.

Before C. W. GOODWIN, Esq.

SUNG QUA-DUNG v.  G. G. MAYNE.

Claim of $360.88, wages as compradore to the Hongkew Wharf Company, and moneys expended for coolies' wages etc., at defendant's request.

   His Lordship understood that certain admissions were made in the answer.

   Defendant admitted that $225 for wages of plaintiff and employees under him was due, but it was withheld on account of defalcations.  The other sums claimed defendant knew nothing whatever about, and repudiated.

   Plaintiff cautioned stated - I had no agreement as compradore with the Wharf Company, but had a security paper.  I was to have $225 a month, being my wages and that of all the Chinese I employed.  I had sometimes more, sometimes less out of this, for myself - sometimes nothing.  I had charge of the men; and was responsible for goods stored in the godowns and for sending them out.  The security paper secured the Wharf against any fault of mine in case the goods became short.

   Defendant said the security chop was not between plaintiff and the company, but between them and the granter, Tucksing, whose servant plaintiff was.

   Witness continued - I was discharged in the end of October 1869, when there was due to me $360.99.  This was $225 wages, $20 paid on account of some bamboo sheds, $10 coolie hire, $12 wages to the lowdah of a houseboat, $35.14 as commission on coolie hire, $29.40 paid on Mr. Mayne's account, and $29.34 also paid on the same account.

   To defendant - I paid the money on your account for chair hire, and coolie and water carrier's hire, during one month. Also for newspaper account, and on iron lost in a cargo-boat you told me to pay.  You took away the vouchers.  I gave up all the receipts and accounts I had when discharged, but you would not pay men, on the plea that there was money lost in the iron safe.  What money I received from you that month from you - over $1,000 - was for coolie hire and the general business of the Wharf.  We came to a settlement, and the amount was what I now claim for, but I received no money on account of it.

   CHARLES LOCK, an American Chinese, sworn, stated - I am employed in the Hongkew Wharf godowns, and was there in 1869.  On a Monday in October, Mr. Maybe came into the office and opened the safe and said he had lost some money.  I recollect about the accounts being made up, when Mr. Mayne stopped $225 from the compradore.  He also declined to pay some other bills, belonging to the boats - Mr. King's affair - $12 for the lowdah and $10 coolie hire on the hulk.  The last was payable by the captain of the hulk.  Mr. Mayne would not pay the $225 because the safe had been robbed, nor the other because it was Mr. King's affair.

   To Defendant - I am confidential go-between with the compradore at the Wharf, and all money matters are settled through me.  All accounts are settled at the end of the month.  I never knew an instance in which that was not done.  It was so in the month in which this man was discharges for cargo having been short.  His security man found out that he had sold cargo from the Wharf, and therefore sent for him and kept him in his house.  The security man sent another man to take his place at the Wharf, and removed all gthe man who could not be trusted.  When the new man came, the cargo was weighed over again, and coal found to be missing.  You paid all the outsandings that month, but kept back the w ages, as the safe was robbed.  The office in which the safe stood was locked, and the key hung in Mr. Newbury's room.  It was never proved who stole the Tls. 400.  The compradore had not paid the men their w ages for the month he left.   I don't know of the compradore paid $29.34 and $29.40 on your account.  He was always paid nay private account at once, but there was no account presented that month for chair coolies.  The compradore never claimed his wages for that month, nor sent you a bill, which if he had would have come through me.  He never came down to the Wharf to me to see about getting his money.  I don't know anything about a straw shed being built.  It was not in my time.

   Defendant explained that as he feared to trust the compradore he had himself paid the stevedore that month for coolie hire.  Entering the witness box he, sworn, stated - I am manager of what was then the Hongkew Wharf Company.  I am not personally responsible for these wages, but defend the action for the Company.  At the time this man was compradore, in Oct. 1869, we were much dissatisfied with the manner in which he was conducting business, and suspected that he was not dealing honestly.  We were then in communication with his security, the Tucksing hong, about having him removed.  About this time I list Tls. 400 out of the safe.  This safe was in the Wharf Company's office, adjoining which is the compradore's rooms.  There is n o work done on Sunday, and the compradore's servants are in the place.  An European wharfinger, named Newbury, lived upstairs. The safe was opened and locked again.  I communicated with the police, and from their investigations suspicion fell on two of my servants, who had come over to the Wharf saying they wished to get something from the office for me.  The compradore's servants let them in.  The security makes the compradore responsible for the safe keeping of everything at the Wharf and requires him to pay losses.  The man never was paid the $225.  His own individual wages would be about $30.  I mulcted all the Chinese staff for the loss.  From the date of his leaving the premises I have had no application for payment, and I must repudiate any outstanding account except the wages.  My servants were taken to the Mixed Court on the imputation of the compradore, and tortured and nearly starved, to make them confess, but were discharged as there was no proof against them.  We took no proceedings against the compradore or the other men.  The compradore engages all the man, and if I were to put in any he could not be held responsible under his security for any loss, so that everything at the Wharf must be trusted to him and his men and he being required to account for it.  His men were in charge on the Sunday in question.

   A godown man called said he was on watch on the Sunday in question.  Mr. Mayne's boy came for an umbrella and went into the office, but he could not say if he stole anything.

   Inspector STRIPLING stated - I remember the robbery at the Wharf.  On a Monday Mr. Mayne sent information that his safe had been opened and certain money extracted.  I made inquiries and had reason to suspect Mr. Mayne\s servants.  There were several watchmen in charge of the place, living next door to the office.  Some of the house-servants and of the godown men were arrested.  I believe Mr. Mayne's servants stole the money.  I considered that I had good grounds to suspect them.  Mr. Mayne had been away from home but had left the key in his trousers' pocket.  One of the boys went with the amah to the office.  We had abundant evidence, though he denied it, that he went to the Wharf, to ask for an umbrella, and that Mr. Mayne never sent him there.  They were admitted by Mr. Newbury, who finding there was no umbrella locked the office again and took away trhe key.  The boys remained about for a considerable time, however, and could have got the key again unnoticed from the place where it hung, or with the connivance of the servants there and entered the office; and one of them leant up against the door in a suspicious manner, keeping  watch while the other was inside.  It was the duty of the watchmen to have prevented the theft, and they were arrested for complicity but discharged.

   Defendant argued that, plaintiff's men being on the watch and everything being in his charge, the compradore was responsible for the loss.

   Plaintiff on the other hand said he considered himself responsible for only the godown contents, and produced receipts to show that any peculation by his men had been paid for by him.

   His Lordship found it necessary to adjourn the case for the production of the security chop.

 

Source: The North-China Herald, 22 February 1872

LAW REPORTS.

 SUPREME COURT.

Shanghai, Feb. 19.

Before C. W. GOODWIN, Esq.

SUNG-QUA-DUNG v. G. G. MAYNE.

Claim for $380.88, wages as compradore to the Hongkew Wharf Company, and money expended for coolies wages, &c., at defendant's request.

   Adjourned from the 5th inst., for the production of the security given for the plaintiff, and of any further evidence on the matter.

   Defendant handed in the security chop, which was translated for the Court by Interpreter Yah-heding.  The paper was dated the second moon seventh year Tung-che, and bore that Quo Tuck-sing secured Ma-tsao-leh as compradore to the Hongkew Wharf Company, to manage cargo coming in and leaving the godowns, for any deficiency in which the security held himself answerable; in proof of which the document was executed.

   Plaintiff handed in a copy of a receipt from the Mixed Court, showing that $20 had been paid by him for certain bamboo sheds, forming part of his claim.  A claim had been made against him in the Mixed Court by the contractor, for $60 on account of these sheds, and the amount was allowed, but as the sheds had been blown down immediately after erection, the contractor's claim was reduced to $20, which plaintiff had paid and now claimed to be refunded from the Wharf Company.  This payment had been made in 1868.

   Defendant said they had had a number of these sheds built during the last five or six years.  The amount claimed was for labour in 1868, and it was in 1869 plaintiff first brought his bill against the Wharf Company.  Defendant had nothing to do with the Mixed Court or its judgment.

   Plaintiff said he had been sued for the amount at the Mixed Court, and when judgment was given against him as compradore of the Wharf, Mr. Mayne told him to pay the $20.

   His Lordship said the question was whether the plaintiff was entitled to bring in the claim at this time.

   Defendant begged to remind his Lordship that it had been distinctly stated in evidence, at the last hearing, that all bills were settled at the end of each month.  Did his Lordship consider the security chop rendered the plaintiff liable for the loss forming the defence to this claim?

   His Lordship said the security did not seem to touch the point at all.  It appeared to him that it only applied to cargo coming into and going our of the godown, and not as to whether the compradore took a general charge of and was liable for the whole property at the Wharf.

   Defendant suggested that the compradore should be put in the wirness-box, and questioned as to what his duties were.

   Plaintiff in reply to the Court, stated - My duties were to take charge of the goods in the godown, and I was required to live there.  I had not the keys of the office, nor did I keep the keys of it, but I did those of the godowns.  My duties were only to look after the goods in godown, and the coolies who were employed to carry them.

   To Defendant - If I saw any one breaking into the godown, I would stop them.  I kept men there for thr purpose of watching the property for which I held myself responsible, and these men were there oln Sundays.  Of I saw a stranger trying to enter your office, I would endeavour to stop him; but I only considered my charge to be over the Wharf generally.  I would consider myself responsible for any cargo lying on the Wharf.  Your officer is on the Wharf premises, but at some little distance from the godown.  My servants lived in the next room to the office.

   Defendant argued from this that the office must have been a part of the property plaintiff was looking after.

   Plaintiff did not consider it so, as gthe keys had not been entrusted to him.  The keys had been given by Mr. Newbury to Mr. Mayne's own boys.

   Defendant said the compradore had a general charge of the whole premises, including the offices.  As defendant had formerly told his Lordship, he had no power to appoint a Chinaman on the premises, and was obliged to submit to the men who were put in for a staff.  In this case the compradore's servants were on watch, and some of them were in a room separated from the office only by a thin partition.  The compradore was in fact put in charge of the whole premises.  (Defendant recounted the circumstances in which trhe robbery was allowed to happen, which appeared in former evidence.)

   His Lordship would like to have some evidence of the understanding under the security chop.

   Mr. MICHIE, Messrs. Chapman King & Co., agents for the Wharf, said he had had to do with the engagement of the compradore, and could give his general impression as to the understanding. Being sworn, Mr. Michie stated -

   We are agents of the Wharf.  I recollect this man being engaged.  There was no special agreement made, but a security chop was taken which was supposed to be concluded in such terms as to cover every possible defalcation, whether from plaintiff's own acts or by negligence.  As would be seen by the working of the security it is as comprehensive as possible.  It included the godowns and whole traffic - and the money would be the most important part of the traffic.  In engaging a man for this very responsible position, from the nature of the business and the premises, it being impossible for a European to exercise supervision, it was necessary that a Chinaman would be taken and be fully responsible.  In order to make his responsibility complete, the compradore had full power of dismissing all the men there, and putting in his own, and he did so.  He was required to live on the premises, and his house was placed at that part of the Wharf where he could exercise his supervision in the most effective manner.  None of the compradores liked living there, but this one was compelled to do so, that there might be no doubt as to his responsibility for what was going on.  No money, so far as I am aware, was received on account of this loss.  On account of other things, losses of cargo, his security, now dead, paid up.  I believe his security was informed immediately of this loss.  On other cases, where third parties were concerned, the security paid up without our interference.  As long as it was an object with the security to pay for the man's shortcomings, he paid; but about that time the man was to be, or was, dismissed, and the security therefore did not care.  We informed the security of the loss as a matter of form, to preserve our right against him, but we were reluctant to proceed while we could hold funds due to the compradore.  I would like to give an opinion as to the general responsibility of men in the compradore's position.  We are obliged, in China, to resort to forms and means of protection not in use in other countries; and I believe the custom of the port will bear me our in saying that it is only by a system of complete responsibility that such affairs can be conducted here, where we have to deal with a people whose language we do not know.

   The Court asked whether it was usual to put men in the compradore's position in entire charge of the property.

   Mr. MICHIE. - It is so.  Even in hongs we dare not employ a watchman not a coolie about the premises if the compradore is not satisfied with them.  We could not have appointed a man at the Wharf; and the compradore, when he went in, cleared out all the old ones, except perhaps one or two, whom he chose to be responsible for.  In this case Mr. Mayne has mulcted the compradore in one month's wages for himself and those he employed.

   His Lordship remarked that there were also two sums paid by the compradore out of pocket.

   Defendant repeated his explanation given at the former hearing with regard to these.  The sums were payable by Messrs. Chapman King & Co., not by the Wharf, and they were acknowledged as bona fide payments, which would be refunded on application.

   His Lordship said - the principal point of dispute is, whether the compradore is, according to English law, and according to the state of things in China, responsible for negligence, and whether he was guilty of any in this matter.  Although the security chop only refers to the godowns and to the cargo, yet, from the evidence, I have no doubt that he was put in charge of the whole property on the Wharf; that he had his own men there, whose business it was to see that nothing was lost; and that these men were about at the time the office was robbed.  On the whole, I think that he was responsible for ordinary care and diligence in looking after the place. Defendant could not have appointed servants of his own to look after his property; it was the custom to have the compradore take charge; and being in charge of property he was responsible for the men engaged in the preservation of it.  Now, this robbery took place in the middle of the day, and it appears to me that it could never have happened without some negligence, if not collusion, on the part of this man's servants.  

   The law in England is that, if a servant is guilty of negligence, provided he has been placed in charge of property, and there has been an understanding or agreement to that effect, his master may deduct any loss from his w ages.  Therefore, I must disallow the plaintiff's claim for his w ages for the current month, amounting to $225.  It would be a bad example to allow it.

   It is perfectly understood here that compradores are in charge of property, and if they were guilt of the negligence of letting people go into an office in open day without any of their men, they were responsible.  With regard to the lowdah and coolie hire, they seem to be just charges, but [I] have nothing to do with this at all.  I think, however, that they ought to be paid, though Mr. Mayne is not immediately liable for them.  With regard to the other claims which are not part of the plaintiff's wages, I believe they are not genuine or they would have been brought forward at the time they were stated to have been incurred.  The evidence of Loch was that all such claims were put in at the end of the month; and these I must reject altogether.

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