Skip to Content

Colonial Cases

Hedgecock v. Jardine, Matheson and Co., 1876


Hedgecock v. Jardine, Matheson and Co.

Civil Summary Court, Shanghai
22 November 1876
Source: The North China Herald, 1 December 1876




Shanghai, Nov. 22nd

Before R. A. MOWAT, Esq.


   Plaintiff, who conducted his own case, sued defendants to recover $92, commission alleged to have been overcharged on account rendered.  Defendants were represented by Mr. MacClymont.

   Plaintiff deposed - I am master of the British barque Letty Gales.  I am also part owner. I was consigned inwards from Freemantle to Messrs. Jardine, Matheson & Co., with a cargo of sandalwood.  Mr. MacClymont asked me what I was going to do for future employment for the ship.  I told him I was in no hurry, the reason being that on leaving Freemantle the ship took ground, and on arriving at Shanghai I found it incendiary to put her into dock.  I also told him that business was very dull, and therefore I should look around to see what was doing.  He asked me if the firm should look around also, and I told him he could please himself, but that I should take the best offer I could get.  I also said if Messrs. Jardine, Matheson & Co. offered me as much as other charterers, I would do business with them, if not I should go elsewhere.  Mr. MacClymont did not offer me as much as the others.  At all times I had better offers outside than he offered me.  I never went to any other brokers.  They sent notes to me.  I had telegraphed to my owners in Freemantle about the accident to the ship, and used to go to Messrs. Jardine's office almost every day, expecting a reply telegram.  When I called there for that purpose, the offer was made to me by Mr. MacClymont about their procuring a cargo for the ship.  The last offer he made me was at the rate of 2.25 to go to Nagasaki for a cargo of coal.  Ultimately I chartered the ship through Mr. George Lewis, at 2.30, and paid him five per cent commission.  Mr. MacClymont did not offer me that rate.  I cannot say id he had the same cargo in view.  I did not accept his offer, but Messrs. Jardine deducted five per cent from my account as commission, as though they had procured me a charter.  I now sue to recover the amount so charged.  They charged upon 800 tons freight.  I cannot say if the freight would amount to so much.  I have not paid Mr. Lewis, the arrangement being that I am to pay him five per cent upon the freight when the vessel is discharged.  I cannot say how much money that will be, because the ship had not been loaded dead-weight before.

   By Mr. MACCLYMONT - I asked you of you would divide the commission with me.  You declined, and said your firm did not do business in such a manner.  We do the same thing in London, as a rule, and I thought I could do it here.  It is not for the benefit of the captain, but for the good of the ship.  You did not do it.  I did not say the ship was in your hands, to find her employment.  I never at any time said she was, I told you I should take the best offer I could get or that you could get for me.  I do not remember your telling me Messrs. Jardine's method of doing business.  I cannot swear that you did not tell me that if the ship was not put altogether in your hands, you could not have anything to do with her.  I remember seeing Mr. Sharp in your office several times.  I cannot say what took place in his presence.

   The comparative advantages of a voyage to Foochow or Nagasaki were spoken of, and I said I thought Nagasaki was the best.  You told me the marker was getting former.  I cannot remember that I was asked to come back the next day, after one particular day, on this special business.  I mentioned to you that I had been offered better terms than yours, and you said that what you then offered was all you could get.  You did say that you were prepared to give the best offer in the market; but I got better offers than yours.  I did not mention to you at all that I had accepted the other charter.

   His HONOUR - It seems to me that this is a question of evidence simply.  Plaintiff says you asked him if you should get a cargo for him, and that he told you that you could look round for him, but that he should do the same, and accept the best offer.

   Mr. MACCLYMONT - And I refused to do the business on those terms, or to have anything to do with the ship unless she was in our hands entirely.  I am prepared to prove that plaintiff said she was in our hands.

   His HONOUR - Then you had better give evidence.

   Mr. MACCLYMONT accordingly went into the witness box, and deposed - I told plaintiff that unless a ship was put in our hands, we should have nothing to do with her, and that if we did nothing for her we should charge no commission.  He asked us to telegraph to his owners about the accident, and in two or three days afterwards he came and asked the usual questions as to getting cargo.  The last offer I made him was 2.25, but I then told him the market was getting firmer every day.  He said the ship was not quite discharged he would wait a day or two.  One d ay, about two days after his arrival in Shanghai, I put the plain question to him - Was the ship in our hands or not?  He said she was in our hands to do business.  That could only apply to outward business.  The ship's consignment to us inward was then done with.  Mr. Sharp was present, and heard it.

   Plaintiff said he had no questions to ask Mr. MacClymont, but  said that if he had put the ship in Messrs. Jardine's hands it was not likely that he should afterwards put her in some one  else's.

   Mr. MACCLYMONT - You came to our office to enquire about a telegram from your owners, and each time asked about cargo.  You  made use of the machinery of our office to ascertain about cargo and the state of the freight market, and it is not likely that we could allow you to do that and then permit you to carry your business elsewhere.

   Plaintiff - I told you I was in no hurry for a cargo, as the ship was going into dock, and that I should look around myself.

   Mr. MACCLYMONT - I told you there were freights offering, but that neither you nor your owners seemed to care about getting away for six months.

   Plaintiff - How then could I have put the ship in your hands?

  It having been suggested that a return of 2 ½ per cent had been made,

   His HONOUR asked - Did Mr. Lewis make you a return of 2 ½ per cent?

   Plaintiff - No, he did not, nor a third.  He offered me a higher figure, and I accepted it.

   Mr. MACCLYMONT - We are defending this action on principle, and I will now call Mr. Sharp, who heard what took place.

   Mr. JOHN SHARP then deposed - I am a freight broker.  I remember seeing the plaintiff in Mr. MacClymont's office, but I do not remember the dates.  The subject of chartering his vessel was being discussed.  On one occasion, the Captain being present, it was said that his vessel was consigned inward to Messrs. Jardine, Matheson & Co., and I suggested to Mr. MacClymont that he should ask the captain if she was to be placed in their hands outward.  He asked the question, and the captain said she was to be, but that he should take the best offer made.  Mr. MacClymont said that if, after placing the vessel in their hands, he went to an outside broker, he should charge him five per cent commission just the same as if they had done the business.  I then made him offers.  Mr. MacClymont had offered him 2.25, and afterwards he told Mr. MacClymont that he had settled with some one else for 2.30.  Plaintiff had previously said he should take the best offer he could get.  If I had not understood the vessel was in Messrs. Jardine's hands, I should not have treated with him myself.  I heard plaintiff say he had put the ship in Messrs. Jardine's hands.  He at first said he would wait a day or two, and would look round to see what was doing.

   His HONOUR - Did not all this s seem to you that he was not putting the ship in any one's hands?

   Mr. MACCLYMONT - No; I understood we were to have the ship, especially as he came to the office asking about freight and the state of the market.

   Witness resumed - A few days afterwards, plaintiff said he could not do anything till the ship was out of dock.  I made him offers, but they were all made in Mr. MacClymont's presence.

   By Mr. MACCLYMONT - I have chartered a number of vessels for Messrs. Jardine, Matheson & Co., but have never done so without taking the captain's opinion.  The house does all the work.

   Mr. MACCLYMONT - In every instance the vessel is put in the hands of the house, but no business is done without consulting the captain as to what is most advantageous for the vessel.  Taking this into consideration, and that the plaintiff came frequently to the office enquiring about freight, &c., I think it is conclusive proof that the vessel was put in our hands.

   Plaintiff said how could he put the vessel into any bone's hands, while he was waiting a telegram from his owners.  In the state the vessel was in, they might have told me to come home "with almost nothing in her."  I went to the office because the vessel had been consigned inward to them, and to see if the telegram had come.  It has not come yet, because the wire is broken, or something of that sort.  I talked with Mr. MacClymont about freight and what was best to be done, but did not understand that they were competing with other brokers.  I said and meant all along that I should take the best offer I could get, and did so.  I never placed the ship in Messrs. Jardine's hands altogether.

   His HONOUR said the Court had decided two cases before on the question of double commission, and he would like to refer to them before giving his decision.

Nov. 27th.


   This action, which was brought to recover $92 for commission alleged to have been overcharged on account rendered, was heard on the 22nd inst., when his Honour reserved his judgment.

   His HONOUR now delivered the following


   If the hearing of this case serves no other good end, it will, I trust, have the effect of inducing parties to out agreements of the kind in writing.  Nothing would seem to be more natural than that a captain - when he has agreed to put a ship unreservedly in the hands of a firm, and to give that firm a commission on any freight he may secure - should write, or sign, a short letter to the firm to that effect.  I don't know whether in practice captains would be very ready to do this (and this may explain why so simple a precaution is not adopted); but as such are the only terms on which, as the defendants say, they do that kind of business, they can always insist ion agreements with them being reduced into writing, so that no question could arise as to what the agreement actually was.

   The fact in these cases, I have no doubt, is that each party is anxious to see in the other's action a tacit assent to his proposal, and the matter is thus left in a measure unsettled.  It is hoped that things will meantime go all right; on the one hand, the agent confidently anticipates that there will be no better offers going than he can make; and on the other, the captain expects that this will probably be so, and he will this have no reason for going elsewhere.  A short letter or printed form, would put the matter beyond dispute; but while it would fix the captain, it might also frighten him, and so it is not resorted to.  For I can well understand that he might be exceedingly lath to bind himself absolutely that he will not in any event go elsewhere; in the interests of his owners, he might and would hesitate, I imagine, a good deal before he unreservedly pledged himself to accept the assistance of one firm only.

   It is only in some such way as I nave indicated, that I can understand the different complexions the same set of circumstances has assumed in the minds of the defendant's clerk and the plaintiff.  I am certain that the former believed that the captain had put his ship unconditionally in their hands, and I am equally certain that the plaintiff did not intend to do so, and did not consider that he had done so.  To support the former's view, we have the fact of the practice of the firm, with no reason why in this particular instance it should be departed from; to support the latter's, we have the fact that he freely consulted with other brokers, and did not conceal that fact from the defendants - for, if he were bound to the defendants, he could hardly be considered by the defendants themselves as treating these brokers fairly.

   On the whole, after a careful consideration and re-consideration of the evidence, the impression I formed at the hearing is only confirmed - the defendants have not made out their case.  [It is the defendants of course who in this instance have to make out their case: from their position of cashiers to the plaintiff, it wad in their power to deduct from the money they had of his in their hands, any sum to which they considered themselves entitled, and but for this circumstance they must have been plaintiffs on the truth.)  As contract such as they proceed upon - being nothing short of a contract to be paid in respect of services towards the procuring of a charter which others, and not they, in fact procured - requires to be established by very clear and distinct evidence; and in the face of the denial of its existence by the captain, the case is not, in my opinion, distinguishable in principle from that of Cousins v. Mitcheson, set out at length in the report of the case of Morris, Lewis & Co. v. Petrie, heard in this Court in July, 1875. - (N. C. Herald, vol. xv., p. 70.)

   There will therefore be judgment for the plaintiff, with the costs of summons.

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