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Colonial Cases

The Independence Pilot Co. v. Wills, 1877

[partnership]

The Independence Pilot Co. v. Wills

United States Consular Court, Shanghai
Myers, 19 January 1877
Source: The North China Herald, 18 January 1877

 

U.S. CONSULATE-GENERAL

Shanghai, Jan. 19th

Before J. C. MYERS, Esq., Consul-General.

THE INDEPENDENCE PILOT CO. v. J. H. WILLS.

   Plaintiffs sued through their agent, Mr. C. C. Bennett, to recover Tls. 102 on a partnership account. - To-day the Consul-General gave the following.

Judgment:-

   This case having been referred to the judgment of the court, with the request and consent of the parties concerned, in equity, I proceed to dispose of the case upon the evidence presented in open Court.

   The claimant verified that he is the Agent of the "Independence Pilot Company," doing business in Shanghai, and that the Association is composed of pilots of various nationalities, who hold licenses under the General Pilot regulations, and working together under a mutual agreement to pay their whole earnings into the agency of the said Company, and receive from its Agent, monthly, any balance which is found due to them, after deducting expenses, &c.  The amount claimed by defendant as due to the company from the defendant is Taels 102.

   The defendant, in his answer, admits that he received this amount of taels, as pilotage of the Batrak.  It is claimed that this money belings to the Company.  The defendant joined the Company by written consent of its members, which appears of record, and resigned his membership on the 29th of December, 1876.  But he avers a claim for pro rata dividend of net earnings for the last half of the month of August, 1876. 

   This claim could not be allowed as a set-off against the money in Court, which, under the rakes or agreement of membership, the defendant had bound himself to pay to the Agent of the Company, and he as to receive from that amount and also from the earnings of the other members of the Company, the share found to be due to each of them.  It appears, however, that for the month of August a net dividend was declared, and that none of it was set apart as the share due the defendant.  To this amount he was clearly and beyond doubt justly entitled, and that, too, in face of the fact that he had earned nothing during that time himself.  He was up to the 29th of December a full member of the company, entitles as such to his share of the profits and earnings, including his portion of the money he had earned himself, as a member thereof.

   But it appears from the evidence that the defendant waived or surrendered his claim for his share of the net earnings for the last half of the month of August.  This evidence is given by a number of witnesses and was communicated to the agent of the company; and is conclusive; nor does it appear that the defendant made any claim himself at the time or before the dividend for August was declared, nor did he do so until a lapse of several months afterwards.  This claim now, in equity, could not be allowed.

   Judgment for complainant, with costs.

(Signed) JOHN C. MYERS, Consul-General, Acting Judicially.

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