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Colonial Cases

Bohman v. MacKenzie and Co., 1876


Bohman v. MacKenzie and Co.

Mowat, 27 October 1876
Source: The North China Herald, 2 November 1876



Shanghai, Oct. 27th.

Before R. A. MOWAT, Esq.

                G. BOHMAN v. MACKENZIE & Co.

   This was an action to recover Tls. 15.90, for an alleged short delivery of an auction purchase, in the 14th June last.  Plaintiff is a Frenchman, and keeps a store on the French Concession; defendants are auctioneers, &c., in the Canton Road, and were represented by Mr. H. Meller.  They denied their responsibility.

   Plaintiff deposed that he went to the auction in question, and previous to commencing, Mr. Moore, who officiated in the absence of Mr. Meller, said he could not guarantee any of the property about to be offered, amongst which were a number of cases of claret, which were sold in lots.  Some Chinese bought 25, 50, and 25 cases respectively, and then he (plaintiff) said he would take the balance, 48 cases.  That was agreed to, and he paid for them at the rate of Tls. 1.45 per case, amounting in all to Tls. 69.60.  He produced the bill of transaction, and also a go down order to take delivery.  On gong to obtain the 48 cases, he was refused delivery by the godown-keeper, a Chinese, who told him that those who were purchasers before him must first take delivery, and they did so, being favoured, as he thought, because they were his fellow countrymen.  When plaintiff was permitted to obtain his cases, he found eleven of them in such bad condition that he refused to take them, he took 37 cases, and now sued to recover the value of the eleven he had rejected.

   His HONOUR said he supposed the auctioneers could not deliver the balance to plaintiff, before the former purchasers were supplied.

   Plaintiff - I went first, and wanted to take away the 48 cases, but the godownman would not let me.

   Mr. MOORE stated that he was the auctioneer at the sale in question, which was an extensive one of wines, beers, &c., and included a quantity of claret.  He told the persons present at the commencement that the cases would have to be taken as they were, without reserve or guarantee, and that no claims on account of any of it being in bad order would be admitted.  He, however, gave them time to go and examine the cases.  Those conditions were spoken in English, and a China boy interpreted them to the Chinese.  Everything was to be taken just as it was.  There were 248 cases of claret.  The first lot of 25 cases were sold at Tls. 1.50; the second, 150 cases, at Tls. 1.45; then another lot of 25 cases, at Tls. 1.50, and the plaintiff said he would take the balance, 48 cases, and they were sold to him at Tls. 1.45.

   His HONOUR - When he went to take delivery of the 48 cases, why was he not allowed to do so?

   Mr. MOORE - he wanted to take delivery of them just after the sale, but I told him he could not do so, and that he must first get a godown order to obtain them.   His HONOUR - That he appears to have done; why was he not allowed to take them then?

   Mr. MOORE - It was a large sale of various kinds of liquor, and it was thought the first buyers ought to be allowed to take away their purchases first.

   His HONOUR - Plaintiff now complains that he was not allowed to take the balance he had purchased, until all the others had first had their pick.

   Mr. MELLER said no one refused plaintiff delivery of the cases.  He himself refused to take them, because the eleven cases appeared in his eyes to be a little more damaged than the rest, whereas they were all damaged.  It stood to reason that those persons who had purchased first, should have delivery of their cargo before plaintiff got his.

   His HONOUR said he supposed plaintiff went among the first to begin to pick.

   Plaintiff said he did, but the Chinaman would not let him take any cases away.

      Mr. MOORE said he did not think plaintiff was the first to apply.

   His HONOUR, in giving judgment, said to the plaintiff - You must take your chance.  You were the last buyer, and the previous buyers were, I think, entitled (if they came in reasonable time) to have their lots delivered to them before you got yours; and that being so, they might take which cases they chose.  You would have claimed the same right if you had been the first buyer.  I do not think the auctioneers were bound to take the cases and  separate them, dividing the more broken ones rateably among the several purchasers.  You were warned that you must take the cases as they were, and having taken 37, there remain eleven for you to take.  In buying last, you get the chance of buying cheaper, and you therefore must wait till those who bought at the dearer price, or bought before you, have had their lots.  - Judgment for the defendants. - His Honour afterwards explained his judgment to the plaintiff in French, as he (plaintiff) spoke English imperfectly.

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