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Colonial Cases

Carmichael v. Myers, 1876


Carmichael v. Myers

Supreme Court for China and Japan
Hornby C.J., 4 May 1876
Source: The North China Herald, 13 May 1876




Shanghai, May 4th.

Before Sir EDMUND HORNBY, Chief Judge.


   Mr. WAINEWRIGHT for the appellant (formerly defendant.)

   Mr. RENNIE for tbhe respondent (formerly plaintiff.)

   This was an appeal to set asidie the judgment delivered on the 26th of November last, at Chefoo, by Consul W. H. Lay, dissolving the partnership previously existing between the appellant (defendant) and the respondent (plaintiff), both of whom are medical practitioners. [29 columns] ...

   I am, of opinion that there is no evidence of corrupt conduct, of dishonesty, or even impropriety on the part of Dr. Myers. That while he may be charged with not having kept the accounts in the way most likely to prevent mistakes, there is no evidence that his carelessness was designed, that it had caused mischief to Dr. Carmichael, or that it was either in character or amount so great as to lead up to an inference of dishonest intent.  I entirely dismiss as against evidence, and in flat contradiction with it, all assumptions on which may have been based any opinion by the Court below, as to Dr. Myers'' untrustworthiness arising out of his failing to account for the falling off of the practice, or his neglecting to answer inquiries as to the practice, as to the Medical Hall, as to the tearing out of the leaf of the ledger, as to his alleged falsehoods about the accounts, as to his refusing to give proper information, and to assist the plaintiff, and generally as to his want of loyalty towards his partner.  On the contrary, I say that it distinctly appears on the evidence that he accounted fully for the falling off - that the Medical Hall charges or absence of charges exist only in Dr. Carmichael's imagination, that there is not the slightest foundation now for any sane man's suspicion  on this head or arising out of the leaf torn out of the Ledger - that I do not find on the evidence a trace of prevarication, falsehood, or evasion; and that the evidence distinctly shows that Dr. Myers gave all proper information and did offer top give and did give all requisite assistance to enable his partner to detect errors and mistakes, and that it was chiefly owing to his candidly and before he was questioned - stating that he was afraid he had been careless in keeping the books, that any so-called suspicion was raised or errors or omissions discovered.

   I am always reluctant to disturb a judgment arrived at by a Court below, especially when, judge and assessors agree, but I think the case of Cleasman v. Price has been allowed to weigh unduly on their minds; and as it becomes my duty to express my opinion on the evidence as well as to apply the law, I cannot do otherwise than record my opinion and the reasons I have given, that the judgment of the provincial Court is against evidence and unwarranted by law.  I do so mainly on the grounds,

1st, that the evidence does not support a finding of negligence so culpable as in law to justify a Court in decreeing a dissolution.

2nd, that the destruction of mutual confidence is rather the act of the plaintiff than of the defendant.

3rd, that the acts and conduct of the plaintiff, as to a great portion of the alleged omissions and errors preclude him from now setting up a case of culpable negligence.

4th, that he is altogether too late after 17 months of forbearance, in coming to a Court to relieve him  from a contract from which, if he was ever entitled to relief, he was so a year and a half ago.

5th, that it is in his interest now to dissolve the partnership, and get the business back into his own hands freed from the necessity of dividing the profits with any one else.

6th, that the judgment of the court below if carried into effect would redound enormously to the advantage of the plaintiff, and the ruin, for no adequate reason, of the defendant.  That no Court of Equity should or would assist one of 2 contracting parties to avoid a contract when he has reaped the benefit of it, and whose obligations under it are becoming due, except for some far more sufficient reason than the evidence in this case discloses.

    For these and the other reasons already referred to, I reverse the judgment of the Court below, with all costs.


Source: The North China Herald, 8 February 1877



 "Thus is finally concluded a case that has been long before the public, and which it would appear could have been adjusted without resort to the extreme proceedings that were adopted."

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