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Colonial Cases

Nee Mew Ho v. Meyerink, 1875

[sale of goods]

Nee Mew Ho v. Meyerink

German Consular Court, Shanghai
17 November 1875
Source: The North China Herald, 25 November 1875


Shanghai, Nov. 17th
Before W. ANNECKE, Esq., Consul
  This was an action to recover Tls. 1,383, the price of a quantity of rhubarb alleged to have been sold by plaintiff to defendant, on the 8th October last.
  Mr. ROBINSON appeared for the plaintiff.
  Defendant conducted his own case.
  Plaintiff is a Chinese merchant, trading in Shanghai, under the hong name or style of Nee-mew-ho, and in his petition stated that on or about the 7th day of October last, one Aling, a Chinese broker employed by him, offered for sale to the defendant 22 boxes of rhubarb, the property of the plaintiff, and tendered to him (defendant) a muster chest for inspection.  On the following day, the defendant agreed with Aling and the plaintiff to purchase the 22 boxes of rhubarb, at Tls. 32 per picul; and the whole of the rhubarb was sent into the defendant's godown on the same day, to be inspected ands weighed.
  The weighing took place on the 11th October in the presence of the plaintiff and the defendant; and the servants of the latter subsequently turned the whole of it out of the cases in which it had been packed, inspected it and put it into tin cases the property of the defendant.  Upon such weighing, the  weight of the whole, deducting tare, was found to be 44 piculs 90 catties; and on inspection 57 lbs. of the rhubarb were found to be damaged, and were properly rejected.  The defendant further objected to 162 lbs as common and small, and at the request of the defendant, Aling prevailed on the plaintiff to take back this latter quantity.  Upon being applied to for copayment, the defendant's comprador told Aling and the plaintiff to come for the money next day.  The plaintiff accordingly applied for payment next day, but was then told for the first time that the defendant declined to receive the said rhubarb, and he (plaintiff) has since been unable to obtain payment for it.
  The defendant by his answer replied that on the 6th October he received from Aling a muster chest of rhubarb for inspection, with the understanding that the goods were "best Nee-mew-ho chop," and with the remarks that he might s end in 21 cases thereof at the price of Tls. 32.  On the 8th of the same month, Aling came to the office with a Chinese whom he called Nee-mew-ho.  Defendant then declared himself ready to take the 22 cases at the price stated, in the event of the goods on inspection to be shortly made, turning out to his satisfaction.  The 21 chests were sent in on the 9th, and weighed on the 11th October, the weight being Pcs. 4490/100, tare deducted.  That Aling afterwards, and in defendant's absence, opened the chests, took out the contents, and packed them in tin boxes belonging to him (defendant), which were then placed in the original boxes.  Defendant notwithstanding this, inspected the rhubarb so packed, and found it was not up to muster, that many pieces were damaged by worms and water, and that in fact it was not Nee-mew-ho chop but Jahintak chop.  That defendant thereupon refused to take delivery, and persisted in his refusal even after Aling had had the worst pieces taken out - in all 57 lbs and 162 lbs - because the balance was not equal to the muster.
  The above are the material portions of the petition and answer.
  Owing to the case being mainly conducted in the German language, translated by the President of the Court to the Plaintiff's Counsel, we are unable to give a detailed report of the evidence.
  The main point appeared to be that the defendant denied having accepted the rhubarb at all, and so stated himself, and was confirmed by his comprador and his clerk, Mr. Tiefenbacher, who stated that Mr. Meyerink had told him he had rejected the rhubarb.
  On the other hand, the plaintiff relied on the facts that defendant had inspected the whole of the rhubarb, and picked out that to which he objected; that he had caused the rhubarb to be put into his own tin cases, several of which were soldered up that when all had been inspected, defendant's comprador had told him to come next day to be paid.
  This latter statement was contradicted by defendant's comprador, and the defendant alleged that the turning out of the rhubarb out of the original chests into the defendant's cases was done in defendant's godown by the order of the plaintiff's broker Aling, and not with the consent of the defendant.
  Defendant's comprador admitted he had paid the coolies who sorted the rhubarb, for packing it into the tin cases.
  The Court decided to dismiss the case with costs.  The only witness for the plaintiff was Aling the broker, and his evidence was not entitled to more weight than that of the defendant.  Mr. Tiefenbacher had deposed that Mr. Meyerink had told him he had rejected the rhubarb, and this was confirmed by the evidence of the defendant's comprador.  With regard to the packing of the rhubarb in defendant's cases, there was no evidence to shew that any permission to do so had been given by the defendant.

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