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Colonial Cases

Fischer v. Penn, 1878


Fischer v. Penn

Penn v. Fischer

Supreme Court for China and Japan
French C.J., 22 July 1878
Source: The North China Herald, 27 July 1878




Shanghai, 22nd July

Before G. FRENCH, Esq., Chief Judge.

FISCHER (Appellant) v. PENN (Respondent.)

PENN (Appellant) v. FISCHER (Respondent.)

  Mr. RENNIE appeared for Fischer.

   In these cases his LORDSHIP to-day delivered


   His LORDSHIP said - These cases  consist of an appeal and cross appeal from Hiogo.  The original appeal is from a decision of the consul at Hiogo sitting with two Assessors, ordering the appellants, Messrs. Fischer & Co., to pay to the respondents 1,978 dollars 93 cents and interest thereon at the rate of 10 per cent per annum, up to the date of payment and the costs of the cause.

   The cross appeal asks that the respondents thereto, being the defendants in the original cause, may be ordered to pay to the appellant and plaintiff in the original cause 3,721 dollars 50 cents,  for services rendered by him to the defendant with interest at 10 per cent per annum and costs.

   I think there can be little doubt that the plaintiff Penn was in the employ of Fischer & Co.  The only question as to the period  for which hew was in their service, and the  salary he was to receive during such period.  The Court below has said that the plaintiff was in Messrs. Fischer & Co.'s service for  23 months.  Upon the evidence I do not feel myself in a position to interfere with that conclusion; but, in my onion, it is the extreme limit of such service.

   Then as to the remuneration to be given to Pen n for his services while in the employ of Messrs. Fischer & Co.  The Court below assessed those services at 100 dollars per month upon a quantum meruit, based, I infer, upon the evidence of Hughes, who said Penn was worth that amount to Messrs. Fischer & Co. having regard to what he did for them; and also upon Fischer having said in his evidence that Penn n told him he had received 150 dollars per month from his former employers.  This also, upon the evidence, appears to me to be the extreme limit of the value of the services rendered by Penn to Messrs. Fischer & Co., having regard especially to the liberty given to Penn while in Messrs. Fischer & Co.'s service to accept remuneration for employment given to him by persons other than Fischer & Co., and the pecuniary advantage which resulted to him from that liberty.

   I am of opinion that the order of the Court below must be affirmed do far as directing payment to Penn of the sum of 1.978 dollars 93 dents.  As regards the interest on that sum, I am clearly of opinion that the plaintiff is not entitled to any interest whatever thereon.  I am of opinion that the cross appeal must be dismissed with costs.  There is no evidence whatever to support it,  either in regard to the period, twenty-six months, for which Penn alleges he was in Messrs. Fischer's employ, or the terms, 200 dollars per month, which he alleged he was to receive during such employ.

   In the original appeal each party will pay his own costs.  In the Court below, the defendants, Messrs. Fischer and Company, will pay the costs.

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