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Colonial Cases

Draeger v. Vernon, 1879

[wages - board and lodging]

Draeger v. Vernon

Civil Summary Court, Shanghai
Wilkinson, 13 May 1879
The North China Herald, 20 May 1879

 

LAW REPORTS

CIVIL SUMMARY COURT.

Shanghai, 13th May.

Before H. S. WILKINSON, Esq.

 

BERTHA DRAEGER, AGNES DRAEGER and CLARA DRAEGER

v.

HOWARD VERNON.

&

HOWARD VERNON

v.

BERTHA DRAEGER, AGNES DRAEGER and CLARA DRAEGER.

   Mr. WAINEWRIGHT appeared for the Misses Draeger.

   Mr. VERNON appeared on his own behalf.

   The three Misses Draeger, members of the English Opera Bouffe Company, under the names of Miss B. Hoctor, Miss A. Draeger and Miss Clara Stanley, separately sued Mr. H. Vernon to recover $99 each, for arrears of salary; and Mr. Vernon had counter-claims against Miss Agnes Draeger and Miss Clara Stanley for $60 for board and lodging, and a cross-claim against miss. B. Hoctor for $91.92, for board, lodgings, and chits.

   By mutual agreement the cases were all heard together.

   In answer to his Honour, Mr. Wainewright explained that Miss Agnes Draeger and Miss Clara Stanley sued as infants by their next friend, their sister, Miss B. Hoctor.

   Mr. VERNON denied his indebtedness to the full amount of the claim, saying he owed each of the young ladies a small balance which he was perfectly willing to pay into Court.

   Mr. WAINEWRIGHT said the young ladies claimed the sum of $300 due to them in respect of their engagement in Hongkong, and they farther alleged that there was also the sum of $75  due to them on the agreement they had been playing under in Shanghai, and he understood Mr. Vernon admitted owing them the $75.  On account of the $300 they had each been paid $26, making $78 for the three, and they were now sueing Mr. Vernon for the difference.  It was simply a question whether Mr. Vernon at the time was a partner with Mr. Rollings and whether they could sue Mr. Vernon for the whole debt.

   Mr. VERNON denied partnership with Mr. Rollings.

   In answer to his Honour, Mr. VERNON said, subject to his counter-claims, he would admit owing each of the plaintiffs $75, leaving $24 in each case.  He also admitted that if he were liable for the whole of the Hongkong salary, the plaintiffs were entitled to receive the $24 each, which made up their respective claims to $99, but he denied his liability for the whole amount.

   Mr. WAINEWRIGHT said the issue was Mr. Vernon's partnership or non-partnership with Mr. Rollings.  He understood that there was a conditional partnership from the 8th December last, and if that were so the plaintiffs not having been paid could sue either partner for the debt.

   Some correspondence between the parties was then produced, as well as the written agreement under which the plaintiffs had been performing in Shanghai.  Their salary under it was $25 per week each with board and lodging.

   Mr. VERNON said he had paid all the salary due under that agreement, with the exception of one week, which was the $75 he had admitted.  His counter-claim against Miss A. Draeger and Miss C. Stanley were for board and lodging, and in the case of Miss B. Hoctor there was the additional amount over board and lodgings of about $30 for extra for which he produced chits.

   Mr. WAINEWRIGHT denied the counter-claims.  He examined the chits and said it was questionable whether they should not be included in the bill for board and lodging.

   Mr. VERNON replied that they were all charged as extras in the bill, in addition to the board and lodging, and if they were not extras he should not have received chits, which were all signed by Miss Bertha Draeger.

   Mr. WAINEWRIGHT, after consultation with Miss Bertha Draeger, said he would admit the chits as extras, with the exception of those for fire and baths.

   Mr. JOHN COLLINS, known on the stage as Mr. John Rollings, was then examined by Mr. WAINEWRIGHT.  He said - I am living at the Astor house Hotel.  I was at Hongkong with Mr. Vernon.  We were performing there for about five months.  I was in partnership with Mr. Vernon.  We had no written agreement.  I w as also in partnership with Mr. De Lille.  We had a written agreement.  Mr. De Lille was partner with me about three months while we were in Hongkong. He was not a partner in December last.  Mr. Vernon and I were partners then.  We shared the profits and losses.  I think it was on the 16th Nov. I dissolved partnership with Mr. De Lille.  During December and January the three Misses Draeger performed at every entertainment Mr. Vernon advertised.  Their salary was $25 a month each, with board and lodging.  This was the same as Mr. De Lille and I paid them.  When Mr. De Lille got into difficulties and I dissolved partnership with him, Mr. Vernon and I verbally agreed to carry on the business.  Mr. Vernon said the young ladies should not lose anything, and we were to pay them the same as they received before, as between Mr. Vernon and myself.

   I have paid each of them $26 of my share of the $300 mentioned in the letter produced.  I have their receipts for that amount.  I could not pay them more because I had no more money.  Baths and fires I should say were part of their board and lodging.

   Mr. VERNON cross-examined the witness at considerable length as to their respective positions in the Company and their connection with Mr. De Lille and the Miss Elcia May Company.  Witness said the Misses Draeger were under a six months' agreement from the 2nd August with him and Mr. De Lille, and that they sued Mr. De Lille for their salary in Hongkong, but he had no money.  He (witness) never heard of a warrant being out against him for the amount.  He had a letter from the registrar, but he did not think it was for this money.  He had only paid the Misses Draeger $26 each because he had no more money, and he admitted that he owned them the balance of his share.  During the time they had been performing in Shanghai, Mr. Vernon had paid the Misses Draeger their salary every week with the exception of last week.  Altogether they had been paid about $900 for their Shanghai engagement. (Mr. Vernon said in addition to this he had paid Sayle and Company $100 for them.)

   Under his partnership with Mr. Vernon he considered he was liable for $150 of the $300 the Misses Draeger claimed for the Hongkong salary.  He could not say whether they had not sued him as well as Mr. Vernon.  He did not think it was spite on their part to only sue Mr. Vernon.

   In answer to his HONOUR, witness explained that the Misses Draeger were first engaged by him and Mr. De Lille on a six months' agreement from the 2nd August, at a salary of $25 each per month with board and lodging.  When Mr. De Lille got into difficulties witness verbally agreed with Mr. Vernon to carry on the business.  This was on or about the 7th Dec.  The arrangement was made in Mr. Vernon's room.  Mr. Vernon said as Mr. De Lille was out of the business, he and witness would carry it on together, and they agreed to give the Misses Draeger the same terms as they had had before.  He told the Misses Draeger this, Mr. Vernon having authorised him to do so.  They played together on these terms, and on leaving Hongkong, about the 17th Jan., Mr. Vernon made the written agreement which had been produced with the Misses Draeger.

   The further hearing of the case was then adjourned next day.

14th May.

   The hearing of this case, adjourned from the previous day, was resumed this afternoon.

   Mr. COLLINS, otherwise Mr. Rollings, was recalled and questioned by his Honour at some length as to the conversation which passed between him and Mr. Vernon when they agreed verbally to carry on the business in partnership after Mr. De Lille got into difficulties, but witness could only give a vague outline of what passed.  He repeated what he said on the previous say as to Mr. Vernon saying he would see that the Misses Draeger did not lose anything, and that they were to receive the same salary they had before. Mr. Vernon, he said, first wanted them to enter into an agreement for Shanghai, Yokohama, Java and Calcutta, which would be for about eighteen months, but the Misses Draeger preferred only a three months' engagement.

   From the 16th Nov. to the 7th Dec. they were paid no salary.  For that time there was no agreement or understanding that Mr. Vernon should pay them.  When he and Mr. Vernon agreed to carry on the business about the 7th December, he told the Misses Draeger that he and Mr. Vernon  were partners and that they would be paid the same salary as Mr. De Lille agreed to pay them.

   Miss BERTHA DRAEGER was next called.  She said she was a British subject living at the Astor house Hotel.  When the Opera Company first arrived in Hongkong she and her sisters were under an agreement with Messrs. De Lille and Rollings.  They performed in Hongkong until the 4th January.  While there Mr. De Lille was imprisoned on two occasions for debt - first, about three months after they arrived there, and again a few weeks later.  Her lawyer advised her that their agreement with Mr. De Lille was broken.  Mr. Vernon and Mr. Rollings then managed the Company.  This was after Mr. Rollings dissolved partnership with Mr. De Lille.  Mr. Rollings was sent to them by Mr. Vernon.  Mr. Rollings told them that they were to receive the same salary with board and lodgings.  He also told them that it would be better for them not to have a written contract, as they had not been paid their salary by Messrs. De Lille and Rollings, which would have to be settled in Court, but as their contract had been broken they were at liberty to perform for anyone else.  They accepted these terms and performed under them from the 7th December to the 4th January.  During that time she and her sisters understood they were performing for Messrs. Vernon and Rollings, who spoke of each other as partners.  They sued Mr. De Lille for salary due and breach of agreement.  Their agreement with him was up to the 2nd February, and they claimed their salary up to that date under the advice of their lawyer.  Their salary was allowed to the 6th December, the Judge telling them that even if they were entitled to it up to the 2nd Feb. they lost their right by performing for Mr. Vernon and Mr. Rollings.

   She wrote the letter produced to Mr. Vernon, asking for the payment of the $300 for salary, two or three days before they signed the agreement for Shanghai.  She received a reply from Mr. Vernon, who said that he could not come to terms with Mr. Rollings.  She and her sisters claimed the whole amount from Mr. Vernon, because they believed they had a right to claim from him he being Mr. Rollings's partner and Mr. Rollings had no money.

   Cross-examined by Mr. VERNON - She did not recollect him telling her he could not make an agreement with her, for fear of an action by Mr. De Lille.  She remembered his saying he could not enter into a written agreement, because it would go against him in Court.  There was no agreement between them for any specific length of time.  It was not to be from the 7th December to the 4th Jan., but she understood it to be while they remained in Hongkong.  Mr. Rollings told her that Mr. Vernon had said she and her sisters should lose nothing by playing with them.  They were to be paid the same as before, and Mr. Vernon had promised to pay them the $300, but he always put them off.  They refused to play one night because they had not been paid.

   They wanted to get something definite - they either wanted the money or a written promise that he would pay them.  She had not sued him in Hongkong because she thought there would be no necessity to do so.  She now sued him for the whole amount.  The other partner could not pay, and she understood that in law she could sue Mr. Vernon.  The counter-claim for board and lodging Mr. Vernon had to pay under the agreement.

   Mr. VERNON was then sworn.  He deposed that he was a British subject, living at the Astor House Hotel.  When the Company arrived in Hongkong Mr. Rollings was in partnership with Mr. De Lille, and the three Misses Draeger were under an engagement with them, by which they were to receive $25 per week each, and their board and lodging expenses paid.  He was associated with another Company, entirely distinct from Messrs. Rollings and De Lille.  De Lille got into difficulties and was put in gaol.  During this time the salaries were running on, and Mr. Rollings got dissatisfied with Mr. De Lille and sued for a dissolution of partnership.  This was about the 7th December, and he understood the Misses Draeger were under an agreement with Messrs. De Lille and Rollings until the 2nd Feb.

   Something had to be done, and as Mr. De Lille had said he was going to do all sorts of things to him, he called Miss Bertha Draeger into his room and told her that he dare not offer her an engagement, and dare not pay her board and lodging - he could offer her nothing until she and her sisters got free of Mr. De Lille, but he said he had no doubt of things went on smoothly they would not be the losers, not meaning, however, that he was going to pay arrears of salary, because business was bad and it was not possible for him to do it.  Besides the Misses Draeger got a piano and $500 from the German Consul at Hongkong, which ought to have covered their expenses.

   Cross-examined by Mr. WAINEWRIGHT - The Company he was a associated with when he arrived in Hongkong belonged to him.  The receipts of all performances were collected first by Mr. Rollings and then handed to him.  There was a dead loss on the performances.

   By his HONOUR - The Misses Draeger were engaged by Mr. De Lille and they sued him for salary up to the 2nd Feb.  They merely played for practice with him to pay off debts and with the prospect of an engagement for Shanghai.  If they had an engagement with him, they could not have refused to play as they did.

   Mr. WAINEWRIGHT produced copies of the North China Daily News to show that in the middle and latter part of December Messrs. Vernon and Rollings were advertised in Shanghai as the proprietors of Miss Clara Stanley's Opera Company, which he thought was strong proof of partnership.

   Mr. VERNON said at the time the advertisements appeared there were no engagement entered into for Shanghai, and it was only proof of a prospective engagement.

   This was all the evidence.

    His HONOUR RULED THAT Mr. Vernon was liable as a partner, and said they would now take the accounts.

   Mr. WAINEWRIGHT went through the chits with Miss Bertha Draeger, and then said he would admit $20.50 of them, disputing the others, which were for fires, baths, and five dollars as a fee to a lawyer in Hongkong.

   Mr. VERNON, after come conversation, accepted Mr. Wainewright's figures.

   His HONOUR then gave judgment for Mr. Vernon to pay $99 each to Misses Agnes and Clara Draeger, and $99, less the $20.50, to Miss Bertha Draeger, and $15 costs in each case.

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