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Colonial Cases

Cameron v. Taylor, 1875

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Cameron v. Taylor

Civil Summary Court, Shanghai
26 February 1875
Source: The North China Herald, 4 March 1875

 

LAW REPORTS

CIVIL SUMMARY COURT.

Shanghai, Feb. 26th

Before R. A. MOWAT, Esq.

A. CAMERON v. J. F. TAYLOR

   The parties to this action are pilots, and plaintiff sued to receiver $99, being money claimed by him through defendant refusing to allow him the use of a certain pilot schooner, he being a partner therein.

   Mr. MYBURGH appeared for the plaintiff.

  The defendant did not appear, and

   His HONOUR said that on Tuesday (the day on which the summons had been served) the defendant had come to Court, and applied that either the case should be heard on one of the two following days (Wednesday or Thursday), or that its hearing shocked be postponed till his return to Shanghai, as he was engaged to pilot the Benledi out on Friday.  The plaintiff was communicated with, and requested to attend on Wednesday morning, when the defendant was also in attendance, so that the case could be then heard, if plaintiff we=re agreeable.  The plaintiff came, but instead of waiting quietly till I was disengaged, and the defendant had come, he made a great noise outside the court, saying that he would have it heard on no other day than Friday, and went off.  When the defendant came, immediately after, I suggested his trying to find the plaintiff and arranging with him to have the case heard on Thursday, but on his saying that it would be no use trying, I made an order postponing the hearing until after the defendant's return to Shanghai.

   Mr. MYBURGH - But ought he not to have received a notification of the postponement?

   His HONOUR - Certainly not, he knew of the application; and if he was so discourteous as not to wait to gear the result, the Court was not to run after him to tell him. (To plaintiff) - Why did you go away?

   Plaintiff - I wanted to get the case off on Wednesday, but these gentlemen (pointing to the Court officials) told me it could not come off then.

   The usher explained that on Tuesday the plaintiff came to the Court for a summons and wanted to know if the case could be set down for Wednesday.  He (the Usher) then told him it could hardly come on, in Wednesday, as there would probably be no time to serve the summons, the defendant being a pilot.

   His HONOUR - And when it turns out that the case can be heard on the Wednesday as he at first wanted, he vehemently objects to its being heard before Friday - probably because he then knew the defendant was going away  in the Benledi and could not be here.  Engagements of that kind are known and talked about among pilots, of course.

   Mr. MYBURGH - I must object to that assertion.  You Honour is not justified in imputing motives to my client.  I say he ought to have been informed in the usual way, of this postponement.

   Plaintiff (to His Honour) - Can't you do something with the case today?

   His HONOUR - You could give me your version of the case, but that would be of no use, the case would still have to be adjourned.

   Mr. MYBURGH - Then I am to game it that the proper course is to adjourn a case on the application of a defendant, and not give the plaintiff notice of it?  That is not the usual custom, and I must say with due deference that I consider the course adopted most unfair and irregular.  I consider my client has been prejudiced by it.  His witnesses are pilots, and their convenience should have been consulted as well as that of the defendant.  Besides that, he has been put to the expense of bringing me here to-day, which might have been avoided if notice had been served.  His going away from the court in the way stated did not justify this proceeding.

   His HONOUR - He did not in my opinion, after his conduct, deserve notice.  Besides, he had notice in the first instance, and when once he comes in compliance with such notice, he is, by our Rules, affected with knowledge of his particular case.  If he does not choose to stay amend hear what takes place, he has himself only to blame.

   Mr. MYBURGH - And then, what about the witnesses?

   His HONOUR - What ibises has he?

   One witness, named Peters, a pilot, came forward; another, Sutherland, from the body of the Court, said he was a witness.

   His HONOUR asked Peters if he was here on Wednesday and Thursday.

   Peters replied that he was.

   His HONOUR - Then the plaintiff could, so far as that witness is concerned, have had the case heard on either of those days.  And Sutherland was with him on Wednesday at the Court.  What tiger witnesses are here?

   Plaintiff said there was another, but he was not in Shanghai.

   His HONOUR - Then so far as he too is concerned, the case could have been heard on Wednesday.  I cannot imagine why you did not have the case heard on that day, when all parties were present in Court, unless it was with the view of putting (as you hoped) the defendant at a disadvantage.

   Hearing adjourned until one side or the other gives notice of the defendant's return.

 

Source: The North China Herald, 11 March 1875

LAW REPORTS, &c.Shanghai, March 4th.

HUGH CAMERON v. J. T. TAYLOR

   Mr. MYBURGH appeared for the plaintiff.

   Defendant conducted his own case.

   The parties to the action were pilots, and the plaintiff sought to recover $99, for loss sustained by him through the defendant's refusal to let him use a certain pilot schooner, the Daniel Webster, of which he was co-owner.

   Mr. MYBURGH said it was really a case to try the right of the plaintiff, as purchaser of a quarter share, to the use of the schooner.  The facts were, that some time ago the schooner was sold by an Order of the Court, and she was purchased by four persons, Messrs. Jugessen, Taylor (the dwefenfant) Vaughan, and Opeters; and as far as he could understyand there was no agreemt made as tol the sale of their shares to any other person, but that they were to use the schooner jointly.

   His HONOUR p- Were the four men to go in the schooner together?

   Mr. MYBURGH said he did not know.  On the 25th of January last, Jurgessen sold his quarter share to the plaintiff, and Peters, one of the part owners, witnessed the signatures.  The deed was drawn up by Mr. Robinson, and after the sale, plaintiff asked for the use of the schooner, in common with the others, but was refried by Taylor, who wrote a letter, in which he quoted "Smith on Partnerships," to the effect that a man could not become a partner without the consent of all existing partners.  He (Mr. Myburgh) contended that there was no partnership between the parties named as having purchased the schooner, but that it was only a tenancy in common, or co-ownership, and in support of this view he cited "Lindley on Partnerships and Companies."  He thought there could be no daunt that Jurgessen, as one of the original purchasers, had a right to use the schooner, but that the plaintiff, as the purchaser of his share, had just the same right to the use of the vessel.

   Defendant, on being directed to state his view of the case, entered into a lengthy statement, to gist of which was that in the Black Ball Pilot Company there were eight partners, one of whom I(Simpson) had died.  On the dissolution of that company, the vessels belonging to it were sold by auction.  Jurgessen, Vaughan, and himself bought the Daniel Webster, and Peters was taken in as apprentice-pilot, on the understanding that if he did not obtain his license at the end of six months, the others would buy his share of the schooner.

   Mr. MYBURGH - Do you dispute the sale of Jurgessen's share to Cameron?

   Defendant - I do; I know it is not a bona fide sale.

   His HONOUR - Then you say that Jurgessen, Vaughan, Peters and yourself were partners?

   Defendant - yes, we were.

   His HONOUR - What did you say about Peters? There are two points to be considered - you might have been joint owners of the schooner, but not yet partners in the business of pilots.

   Defendant - The four were partners in the schooner to use for piloting.  Peters was taken in to be taught the business of a pilot.

   His HONOUR - The plaintiff had better be sworn.

   Plaintiff was accordingly sworn, and deposed: - I have been a pilot for three and a half years.  Mr. Jurgessen had a quarter share in the Daniel Webster.  I bought it of him.  The agreement procured is that of the sale.  It is signed b y Jurgessen and myself, and was witnessed by Mr. Robinson and Mr. Peters.  I bought the share on the 25th of January last.  Mr. Taylor was in possession of the boat, and I notified him on the 12th February, of the sale and of my desire to use her.  That was the first time I could see him.  I had no opportunity before, the schooner being outside.  He told me, in reply to my application, that I could not come on board the schooner.  I asked him why.  He said, afterwards, that he had no objection to me, but to the party who sold.  He refused to let me come on board.  I made no further application, but a correspondence ensued, the first letter being from myself on the 11th February.  O took a letter on the same day.  I purchased the quarter share (as letter from my vendor) in order to give it to Mr. Taylor, but I could not see him until the 12th February.  I had that letter in my possession all the time. My average earnings are about Tls. 200 per month.

   By defendant - I am a shareholder in the Daniel Webster, to the extent of Tls. 1,000.  I have given a note of hand to Mr. Jurgessen for the whole amount.  I propose to pay the amount in twelve months out of my earnings, a certain portion of which will be set aside for that purpose.

   Defendant - That means that, by being my partner, you hope to pay it.

   Plaintiff - I do not hope to do it at all. I have arranged to do it.

   Defendant - He can't, unless he becomes my partner.

   Mr. MYBURGH - he does not necessarily become a partner.  If Jurgessen chose to sell his share in the schooner he had a perfect right to do so.  It's his own look-out whether he gets paid.

   Defendant - We can't work in the schooner, or pilot ships, without being partners.

   Plaintiff p- We were to be partners in the expensed of the schooner.  Have an agreement drawn up, and then there will be something solid.

   Defendant - he must be a partner, because of there are two ships to pilot, I should keep one, and he would have the other; I I might he ill, and he would have to do the work.'

   His HONOUR - It is not because he buys a share in the schooner, that he becomes a partner with you as a pilot.  When you have gone down the river one day with a ship, he might take the schooner, the next day, and get another ship, and not divide your earnings.  You might share the expenses of the schooner, but not divide your earnings at any time.  You might both go down the river in the acme boat, as being cheaper than two boats; one of you might get a large ship and the other a small one to pilot, but it does not follow that you would put your earnings together and divide them.

   Defendant then renewed his questions to the plaintiff, but elicited nothing material to the point at issue.  He also proceeded to read a number of letters that had passed, to which

   Mr. MYBURGH objected, as not being evidence.

   Defendant t said he could not make his case understandable unless His Honour would hear them.  He was not assisted by legal advice, and trusted to His Honour's ideas of justice and equity.

   His HONOUR said the letters had better be read - it would perhaps save time in the end.

   Defendant then read the letters which had passed between the plain tiff and himself, the only material point contained in them being contained in his reply to the plaintiff's notification of his purchase of the share, in which he s aid,

No person can become a partner, unless by the con sent of all the other partners.  On this principle I intend to stand; otherwise I shall apply to the Judge for power to sell the property.

That was his position to-day.

   His HONOUR - The point at which you are at issue is this - that there is no evidence as yet of any partnership existing.  When defendant t comes in to the box he will be able to tell how they stood together.

   Defendant - I wore to plaintiff, that he must establish his claim to be my partner, in a court of law, according to "Smith on Partnership."

   Plaintiff was at this period questioned by his Honour, as to whether he had obtained the consent of the other partners to his purchase of Jurgessen's share.  He relied that he had asked Vaughan and Peters, neither of whom had any objection.  He did not ask Taylor's con sent, because he was not in town.  On being pressed to say if Taylor's absence was his only reason for not asking him, the plaintiff did not give very clear replies.

   Mr.  MYBURGH said he did not see what Taylor's consent had to do with it.

   His HONOUR said plaintiff evidently thought somebody's consent was necessary, else why did he go to Vaughan and Peters.  Probably he thought they were willing, and that Taylor was not.

   Plaintiff - No, that was not it.

   His HONOUR - The $99 you claim, is it in respect of your loss of time between the 12th and 22nd February.

   Plaintiff said it was.

   His HONOUR - Is not the loss your own fault?  You might have taken out the summon s on the 12th, but you did not do so until the 22nd.  The defendant is not to blame for your delay.  He refused you permission on the 12th, to use the schooner; why did you not sue him then?

   Plaintiff - I thought he might have written to me, saying whether he was willing for me to join.

   Mr. MYBURGH - He wished to give the defendant time to think it over.

   Plaintiff - I did not wish it to come to such proceedings as these.

   His HONOUR said Peters had better be examined.

   JORDAN PETERS, said he was owner of a quarter share in the Daniel Webster: - I had no objection to Mr. Jurgessen selling his share to the plaintiff.  Theatre was no stipulation against either of the owners selling his share.  I sailed six months as an apprentice-pilot, to serve my time.  I have received no money from any others, nor have I paid for repair.  I only paid for my food.  I paid Tls. 1,000 for my share.  I left it to the other pilots to make all arrangements.  Mr. Taylor has sailed frequently in the schooner.  So far as I know, neither Jurgessen, Vaughan nor Taylor have put their earnings together, nor did I know of any agreement to do so.  I do not know whether Vaughan or Jurgessen contributed to the repairs of the schooner.

   By defendant - It was understood that no other partners were to be admitted, but that we were to keep the schooner among ourselves.  It was not understood amongst us all that if I was unable to get a license, the other three owners were to buy me out.  I never knew of it until my six months were excursed.  You did tell me afterwards.  The other owners were willing that I should receive the money.

   Defendant, sworn, deposed - The Daniel Webster was sold on the 23rd Feb., 1874, for Tls. 4,300.  I purchased her, on account of myself and the three other persons named.  There was no agreement drawn up.

   His HONOUR - That is at the bottom of the whole thing, and has led to the confusion.  I believe in no other place but Shanghai, would property to the value of Tls. 4,200 be purchased on account of four person s, without an agreement being drawn up to show the terms on which it was purchased, and the purposes for which it was to be held.  What was the verbal agreement, if there was on e?

   Defendant said they trusted to each other's honesty.  There was a verbal agreement, that Vaughan and Jurgessen should remain in Messrs. Siemesen's employ in which trhey then were; and that all expenses were to be ahsred.  It was thought that I also would be employed by Messrs. Siemesen, and that we would then club our earnings.  They, however, found that they did not want three pilots, and things went on as before.  That went on till October last.  An amalgamation of all the pilots in Shanghai was proposed, but that also fell through, and matters still went on as before, Vaughan and Jurgessen piloting the Hongkong steamers as usual.  I have been working this boat myself, and they have not joined their earning to mine, although I have often asked to do so.

   His HONOUR - Then, by your own showing there was no partnership between you.

   Defendant - But partnership in piloting g is different to anything else , - at least Sir Edmund Hornsby raked so in the Black Ball case.

   Mr. MYBURGH - But they had articles of association.

   His HONOUR - I do not remember Sir Edward Hornby ever ruling in the way you say.  Community of profits is the test of a partnership.

   Defendant - In the case of the Lucerne, we helped to save e the crew, and rendered other assistance, and then divided the money equally. As we were partners then, we are partners now.  With all deference, I contend it is a partnership.  It is very hard upon me to have to take this man in, when it will interfere with my business to do so.

   His HONOUR. - You are not obliged to take him in.  There are two or three ways out of the difficulty.  For instance, you can sell your own share.

   Defendant - We all wish to sell.  But could we not sell then schooner by auction?

   His HONOUR - Yes, you can do that, if you choose.  But there is nothing to prevent mar. Jorgensen selling his share or giving it away.  He might give it to any body.

   Defendant - It will vitiate my share very much to take plaintiff in.

   Mr. MYBURGH - You want it altogether for yourself.

   Defendant - No, I do not; but I want respectable men to join me, so that captains will give me employment.

   His HONOUR - I come now to the question of damages.  Plaintiff says his average earnings ate Tls. 200 per month.

   Both plaintiff and defendant were questioned as to their earnings in the months of December, January, and February, which from their replies appeared to be nearly approximating to the plaintiff's statement.

   His HON OUR said it was clear from the evidence that there was no partnership in the piloting business.  Four men had bought a schooner between them in common, and it was perfectly open to any one of them to sell his share to whom he pleased.  The person who bought it, stood in the shoes of the seller.  Consequently, the plaintiff being the new owner of the share, defendant was wrong in refusing him permission to use the schooner. By reason of that act, the plaintiff had suffered loss, which he assessed at $99.  He appeared to have been idle from the 12th to the 22nd February - to have lain by on his rights; of course he was not disposed to encourage plaintiff in such a proceeding, because his right of action commenced on the day of the defendant's refusal, and the case could have been heard soon afterwards, and the point t decided.  Still plaintiff was entitled to damages in respect of the clear invasion of his right of property, and he would allow him $25.

   Mr. MYBURGH - And costs?

   His HONOUR p- I will not allow more than the ordinary costs of Court.  This is the result of dealing with valuable property without some written agreement, which could be produced to the Court.
   Defendant - There was a verbal agreement.

   His HONOUR - Your experience should teach you that a verbal agreement is of no use whatever.

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