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Colonial Cases

He Fukee v. Groom, 1877

[conveyancing]

He Fukee v. Groom

Civil Summary Court, Shanghai
Mowat, 19 February 1877
The North China Herald, 22 February 1877

 

CIVIL SUMMARY COURT.

Shanghai, Feb. 19th.

Before R. A. MOWAT, Esq.

HE FUKEE v. F. A. GROOM.

Claim for Brokerage on a Sale of Land.

   Plaintiff, a Chinese, sued to recover $99.99., for brokerage on a sale of land to the defendant. - The case was adjourned on the 12th instant, for the presence of an interpreter.

  YANG HEDING now attended in that capacity, and the case proceeded.

      HE FU-KEE deposed - I am a broker - a general broker, in land, houses, and timber.  On the 20th day of the 11th moon last year, defendant's compradore came to me, and said his master wanted to buy a piece of land.  He described the locality, and  said it belonged formerly to Way Yuen-chong, and had been previously sold to him by the defendant.  The compradore told me that he knew the land at the present moment belonged to Way King-kee.  He then asked me to tell him all about it, because he knew that Way King-kee wanted to dispose of it.  I afterwards brought forward the business with Way King-kee.  The price of the land was to be Tls. 500 per mow, but Way King-kee wanted the Tls. 500 clear.  He meant there was to be no brokerage deducted from it.  I then went to the defendant, in company with the compradore; and afterwards the compradore told me that defendant was willing to offer Tls. 400 or Tls. 500 per mow.  I subsequently spoke to Way King-kee about it, and he said he wanted the Tls. 500 per mow, clear.  After that interview, defendant said he was willing to give Tls. 500 per mow clear, without including brokerage.  The compradore told me that the brokerage was to be paid besides the price per mow.  I returned to the defendant with the compradore, and spoke to him about it.  I am speaking of the first time I saw the defendant on this business.  I told the defendant the brokerage was to be paid to me outside the purchase money.  Defendant said he had spoken to the compradore about it; and then told me  I must find a man who would sell him the land.  I told him the man was Way King-kee.  Defendant was in a hurry, and  said he would pay bargain-money.  I told him the price was Tls. 500 per mow clear, and he said it was all tight and agreed to the purchase.  The money was to be paid after fourteen days.

   When that time came, defendant talked about the brokerage, and promised to give me $100.  I had said I wanted Tls. 100; but the compradore told me that his master would pay me $100, and that I need not bother his master about it again.  He meant that I was not to go to him to apply for the payment every day.  The compradore told me that, when I went to Way King-kee's.  It was on returning, that the defendant said he would give me $100.  I never got the $100, or anything.  I have applied  five or six times for it.  I first applied ion the 8th day 12th moon.  That was the time when the purchase money was to be paid. I  went to the defendant's office for it.  He told me to come on the next Monday to receive my brokerage.  I went, and defendant then told me to come next day at four o'clock.  I went again at  that time, and was told to come on Wednesday, at the same hour.  I went, but defendant did not pay me; not has he paid me anything.

   By defendant - I say I am a broker.  I have bought and sold land before.  During the past year I have bought land twice.  This is the third transaction I have had.  I was in Way Yuen-hong's employ, and  left it the year before last.  It is fourteen months ago that I left.  I was Way Yuen-chong's purser.  I have therefore been a broker for fourteen months, and during that time have sold two pieces of land.  In the purchase of land, the custom amongst the Chinese is for the buyer to pay brokerage.  The customary brokerage is on sums not exceeding Tls. 1,000 or Tls. 2,000, five per cent; not exceeding Tls. 10,000, two and a half per cent to three per cent; and for sums over Tls. 10,000 two and a half per cent.  On this sale, I was entitled to get two or three per cent.  I considered myself entitled to receive over Tls. 70, at three per cent $100 is more than Tls. 70.  I do not know what the custom is between Chinese and foreigners.

   Upon calculation, it was  said the value of $100 was Tls. 70.51.

   By His HONOUR - At the time I sold the land, I did not know its extent - I guessed the price would be Tls. 2,000, and that the brokerage would be five per cent.

   By defendant - I did not know the extent or area of the land until the bill of sale was made out.  I knew where the land was situated.  I knew all about the land before the defendant's compradore spoke to me about it.  When the price was settled, you were in a great hurry, but you promised me $100.  The document you now produce was written at the same time.

   Defendant - Then I could not have been in a very great hurry, if there was time to write this document.

   His HONOUR - It does not matter whether you were in a hurry or not.  The question is - Did you promise him the $100?

   Defendant - I did not.  I want to show that what he is stating is a tissue of falsehoods.

   Plaintiff, further questioned as to when the document produced was written, said it was written at the time he had named, and that Way King-kee was the owner of the land. - [The document set forth that Way Yuen-chong was the owner.] You (defendant) wrote it yourself.

   Defendant - I know I did, but I explained to you why.  I do not know that it is necessary to go into all this.  I merely want to shew he is telling a tissue of lies.

   Appended to the document in English was another in Chinese, and his Honour directed Heding to translate its contents.

   Heding said it was the agreement for the sale of the land to the defendant, with the terms of payment mentioned.  Plaintiff, he added, also wished to make out that it contained a promise to pay all costs - the Consulate fees as well as the expenses of the middle man.

   Plaintiff said the defendant brought the Chinese document himself, and he understood it only contained the price of the land per mow.  Whatever else it contained, he (defendant) never said a word about paying the expenses of the middle man.  If that was contained in it, why did not plaintiff put down the sum to be paid to the middle man at $100, and say it was to be paid by him?

   Plaintiff, on being questioned on this point, simply reiterated that defendant did promise to pay his expenses.

   Defendant said he would explain the reason why he was putting these questions.  He himself knew perfectly well all the particulars about the land.  The land was originally bought by Way Yurn-chong, and he (defendant) did not know but what it was still in his possession.  The only thing the plaintiff had to do in the present matter was to say who held the title deeds.  Way Yuen-chong was away from Shanghai, but defendant knew he wanted to sell the land for the same price he had given for it.  He sent his compradore to Way Yuen-chong, to propose the purchase to him, and it was then he found he was absent from Shanghai.  Plaintiff afterwards said the title deeds were held by Way King-kee, and then tried to squeeze the brokerage from both defendant and Way King-kee, but both refused to give him what he asked, telling him the work he had done for them was not worth two per cent.  he (defendant) also told plaintiff that the agreement for the sale of the land contained no reference as to brokerage, but that when the sale was completed, he would give him something for his trouble.

   His HONOUR - Then you considered him a broker?

   Defendant - No, I did not; but I thought he was entitled to receive something.

   His HONOUR - Why is there no reference to that in the document he signed?

   Defendant - What I told him was that I would pay him brokerage if he was a true broker.  No amount was stated.  I also said that I should not pay him 2 ½ per cent., which would be more than the full brokerage paid to a regular land agent.  He claimed Tls. 100 at first, and was then told he would not be paid anything of the sort.  He came to my office several times afterwards, asked for payment, and was very impertinent. He now sues me for more than he is entitled to by his own showing, and of course I declined to pay; but I am still quite willing to pay him a fair sum for the little work he did.

   His HONOUR asked plaintiff to whom, he sold the other two lots of land last year?

   Plaintiff sold to Chinese on both cases, and both paid him brokerage at 2 ½ per cent. the value being over Tls. 1,000 in each case. (Plaintiff here corrected himself, and said he received five per cent brokerage in each of these cases.)  The two purchasers are still in Shanghai.

   His HONOUR directed plaintiff to write down their names and addresses.  Plaintiff having done so, His Honour next asked him the amount of brokerage he was paid by them in each case?

   Plaintiff replied Tls 75 on Tls. 1,500, and Tls. 55 on Tls. 1,050, for which sums the land was sold.

   Defendant said that was between Chinese.  The land in the present case was not even registered in Way Yuen-chong's name, but in Mr. Cowie's.  He (defendant) knew that at the time, but still thinking Way Yuen-chong was the real owner, he sent to him to see if he would sell.

   AY KING-KEE was next called, and deposed - I am compradore at Messrs. Russell & Co.'s.  I cannot speak English.

   His HONOUR considered it strange that, holding that position, he could not speak English, and directed Heding to question him again.

   Witness now said he was a clerk in the compradore's office at Messrs. Russell & Co.'s.

   His HONOUR cautioned the witness to speak the truth.

   Witness resumed - I was present in defendant's office, on the 20th day of the 12th moon.  I sold the land in question to the defendant.  Way Yuen-chong sold it to me.  I did not hear anything said in defendant's office about payment to the plaintiff.  When I bought this land from Way Yuen-chong, he owed me money.  The title deeds were given me by him.  I gave him Tls. 500 per mow for it.  He owed me over Tls. 4,000.  I w rote off that sum, on account of this land, Tls. 2,300, the value of it.  The seller never pays brokerage.  That is the custom amongst the Chinese.

   By defendant - When your compradore first came to me, I had not offered the land in the market at Tls. 500 per mow.  I had only told Fu-kee that I wanted to sell it.  I did not know whether it was known outside.  The three named were signed to the document because you wanted them out to it.  I have no legal transfer of the land from Way Yuen-chong.  I have only the title deeds.

   Defendant, addressing His Honour, said - The plaintiff you will see, did nothing at all.  He merely sold the land on account of Way Yuen-chong, in whose service he had been; and I say Way Yuen-chong was still the owner, and that no sale took place to Way King-kee.

   WAY-KEE next deposed that he was also present in defendant's office at the time of the sale to him, and heard nothing said about brokerage being paid by him to plaintiff.

   Defendant's compradore deposed - My master told me he wanted to buy back the piece of land which he had formerly sold to Way Yuen-chong, and sent me to enquire about it.  Way Yuen-chong was not in Shanghai, and I went to the plaintiff, because I knew he was formerly in Way Yuen-chong's employ, and I thought he might know about the land.  I asked him in whose hands the title deeds were, and told him my master wanted to buy the land.  Plaintiff would not then tell me where the title deeds were, but next day told me that Way King-kee was the owner, and that he was willing to sell at Tls. 500 per mow.  Plaintiff   said he wanted Tls. 100 brokerage.  He told defendant so.   Defendant said he would not give him that amount, but that he was to wait till the business was transacted.  On settling the sale with Way King-kee, defendant promised to give plaintiff Tls. 50.

   Plaintiff, recalled by His Honour, said he had heard what the witness said.

   His HONOUR said the compradore's evidence showed that he went to the plaintiff, not as to a broker, but to find out where Way Yuen-chong was.  But it seemed that plaintiff knew something about Way Yuen-chong's business, and the compradore told him his master wanted to buy this particular piece of land.  Plaintiff said he knew where the present owner was, but he would not tell unless he got something for the information.

   Plaintiff, on being asked about the promise said by the compradore to have been made by the defendant of Tls. 50, said defendant promised him Tls. 58.77.

   Defendant - I did not promise him anything, and certainly would not pay him 2 ½ per  cent, for I found out afterwards that he was not a broker at all, but simply an employee of Way Yuen-chong's; and that he did not know where the land was, nor its extent.  I knew all those articulators myself, and all he did was to simply say, "I know who holds the title deeds."  I said I would not pay him brokerage, but would give him something for his trouble.  I did not consider Way King-kee owner.

   His HONOUR - But you actually paid him Tls. 150 bargain money.

   Defendant - yes, through my compradore.  The two other, whose names are signed to the document, were trustees of Way Yuen-chong's, and that is why I wanted their names attached, to show that they had power to sell the land.

   His HONOUR - What more could a broker have done for you than this man did?  If you knew all the particulars about the land, what would have been the use of his bringing them to you?  It seems it was land you sold to Way Yuen-chong and that you wanted to buy it back again from him.

   Defendant - And the sale by Way Yuen-chong to Way King-kee has not been proved. Way Yuen-chong failed in business, and the title-deeds of this land simply passed into Way King-kee's possession.  There was no actual sale.  As I have said, I am willing to pay something, but object to pay the plaintiff 2/1/2 per cent because he is not a regular broker.

   His HONOUR - I will give you an opportunity to enquire into the terms of the sale of land to the two men whose names he has given.  If he did not get commission, then his claim to be a broker falls to the ground; but if he did, then he is a broker.

   Defendant - In this case I looked upon him as principal.

   His HONOUR - But your compradore says  you promised him Tls. 50.  If you like to have an adjournment to have time to enquire of the two men, I will grant it.

   Defendant - Then the sale of those two pieces of land will be held to constitute him a land broker?

   His HONOUR - It will show that during the last fourteen months he commenced business as a broker.  If I started as a bill broker to-morrow, and was unfortunate enough to get little business, it would not the less make me a bill broker.

   Defendant - I want this case settled so as to decide what is to be the custom in transactions of this kind between Chinese and foreigners.  If the case is settled that the plaintiff is entitled to 2 ½ per cent., it will be a precedent, and be regarded as settled once for all.  If you will call Heding, perhaps he can say what the custom is.

   In reply to the Defendant, who said - This is a case between a Chinese and a foreigner, - is it the custom for the buyer to pay the broker?  Heding said he had never heard of it.

   Defendant - Nor have I.  It is a matter for arrangement, when a Chinese sells land to a foreigner, who shall pay commission.  All I want to know is, is the plaintiff, a Chinese, entitled to claim from me, a foreigner, the purchaser of land, the sum of 2 ½ per cent.  brokerage.  I want it settled as a matter of precedent.

   His HONOUR - If you cannot satisfy me that plaintiff is not a broker, I must take it, on his own statement, that he is a broker.

   Defendant - Granted he is a broker, he is not entitled to charge 2 ½ per cent.

   His HONOUR - He sold those two pieces of land, and received five per cent commission.  He cannot say anything about the custom of selling land to foreigners, because he never sold any to them; but he thinks he is entitled to the same amount from a foreigner who employs him as from a Chinaman.  You say the amount of brokerage is always a matter of arrangement between Chinese and foreigners as to who should pay it, and how much is to be paid.  Now it seems to me in this case, if that is the invariable practice, you ought to have fixed the price with him at the time.

   Defendant - but if he is a broker, is it not his business to know the practice?

   His HONOUR - Not if he has had no dealings before with foreigners.  It was for you, who knew the practice, to follow it.

   Defendant - But I did not treat him as a broker.

   His HONOUR - I consider that he did all that, if he actually were a broker, a broker needed to do in the case to get his commission.  It is to ascertain whether he is a broker by business that I offer you an adjournment.

   Defendant showed no willingness to accept the offer,

   His HONOUR went on to say - It seems to me that plaintiff is entitled to recover Tls. 58.77, i.e., 2 ½ per cent on the amount, with the costs of the court, and I shall make an order for that amount.

   Defendant - I suppose I have the right of appeal.

   His HONOUR - Certainly.

   Defendant - Might I ask for a copy of the judgment, and that it shall be entered on the records of the court that it is the custom in such transactions between Chinese and foreigners, that foreigners are to be charged 2 ½ per cent brokerage?

   His HONOUR - There will be no written judgment, but only the usual order for the amount awarded.  On appeal, the whole matter will be re-heard.

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