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Colonial Cases

Reid v. Olyphant and Co., 1879

[wrongful dismissal]

Reid v. Olyphant and Co.

United States Consular Court, Shanghai
Bailey, 16 January 1879
Source: The North China Herald, 24 January 1879

 

UNITED STATES CONSULATE GENERAL.

Shanghai, 16th Jan.

Before D. H. BAILEY, Esq., Vice-Consul-General

FRANK REID v. Messrs. OLYPHANT & CO.

   Mr. J. J. HENDERSON appeared for the plaintiff.

   Mr. WAINEWRIGHT appeared for the defendants.

   This was an action instituted by Mr. Frank Reid against his late employers, Messrs. Olyphant & Co., to recover the sum of Tls. 4,150, for alleged wrongful dismissal from their services and consequent allowances.

   The COURT said that owing to pressure of public busyness, and it being mail day, he was unable to proceed with the hearing, and would ask the parties to fix another day.

   Mr, J. J. HENDERSON and Mr. WAINEWRIGHT both explained that a postponement accorded with their wishes.

   The hearing was accordingly adjourned until Monday, the 27th inst.

   Annexed is a summary of the pleadings in the case:-

   The petitioner sets forth in his petition that he is a citizen of the United States, residing in Shanghai, and that the defendants, Messrs. W.  W. Parkin, H. S. Geary, Talbot Olyphant, and F. F. Seaman, tiger her with Tobias Pim, are merchants and partners, composing the firm of Olyphant & Co., doing business at Shanghai, China, and elsewhere.

   On the 9th Feb., 1864, petitioner was engaged in New York by the defendants, and has ever since been in their service in various capacities as general and corresponding clerk, and special agent latterly having had the management of special business and travelling  from port to port in Japan and China in discharge of the duties appertaining thereto, under an agreement entered into by petitioner with defendants in New York in February, 1878, whereby defendants were to pay petitioner for his services the sum of Tls. 2,800 per annum, tiger her with such allowances as to quarters, board, time of notice of discharge, passage money home, &c., as are usually made to foreigners for like services in foreign merchants'' offices in China.

   On the 19th December, 1878, defendants suspended all payments and ceased to transact business at Shanghai, and terminated and refused to carry out their  said agreement, and dismissed petitioner from their service without previous notice and without any fault or misbehaviour on his part, and without paying, and refusing to pay, him the sum of Tls. 1,950, being the amount of unpaid salary, allowances, and travelling expenses, to which he is entitled under his agreement, and which sum is still unpaid.  By the custom of the port and country, foreign employees in like service with that of the petitioner are entitled to six month's notice on dismissal, together with a sufficient sum to defray the usual travelling and incidental expenses of a foreigner to the United States or Europe, and defendants refused to pay petitioner any sum whatever on account of such custom.  By reason of the premises petitioner considers himself damaged in the sum of Taels. 1,950, on account of salary, allowances, &c., unpaid as aforesaid, and is further and specially damaged in the sum of Tls. 2,200 on account of loss of time and employment through being discharged without notice and loss of allowance for gravelling expenses for the voyage home to the United States.  He, therefore, prays judgment against defendants for the sum of Tls. 4,150, together with costs of action, and for such other and further relief as in law or equity he may be entitled to.

Memorandum of petitioner's claim:-

For amount of salary due to date                                  Tls. 1,450

Mess allowance for six months ending

31st December, 1878                                                          Tls.    450

Sundry payments made in Hongkong on

Defendants' account                                                          Tls.       50

Salary from 1st January, 1879, to 30th

June, 1879, and mess allowance for same period         Tls. 1,850

Passage, &c., from Shanghai to New York                       Tls. 350

 

Total Tls. 4,150.

 

   Defendants, in their answer, admit the nationality of the petitioner and the constitution of the firm to be as represented by him, except that they say that George Washington Talbot was a member of it in addition to the members mentioned.

   They admit the petitioner entered their service in the month of February, 1864, but deny that he had continued in the service of the firm since that date, but, on the contrary, during a considerable period since 1869, he had been in other employ.  They allege that in the month of August, 1877, the petitioner left China and  went to the united States, and that in or about the month of February, 1878, they agreed with him, when he was in New York,  that he should return to China, and that in respect of the period during which he had been absent he should be credited with salary at the rate at which he had been therefore paid, such rate being the sum of Tls. 150 per month, and that he did return to China and  was credited with and paid such salary accordingly, and that since his return to China he had been paid  salary at the rate aforesaid, and also an allowance for board and lodging at the rate of Tls. 1,000 per annum, he having received a similar allowance up to the time he left China in the month of August, 1877.

   They also admit that on the 9th December, 1878, they suspended payment in Shanghai, and that in consequence thereof, on the 19th of the same month, they gave notice to the petitioner that they no longer required his services.  Save as hereinbefore appears, they deny all the allegations contained in the petition.  And for further answer in the matter defendants say that after crediting the petitioner with his  salary and allowances up to the 31st December last, he is indebted to them in the sum of Tls. 6868.86, as is shown by a statement of accounts annexed to the answer.  Defendants, therefore, pray that judgment might be given against the petitioner with costs, and that they may have such other or further relief as to the Court may seem meet.

 

The North China Herald, 7 February 1879

UNITED STATES CONSULATE GENERAL.

Shanghai, 1st Feb.

Before D. H. BAILEY, Esq., Vice-Consul-General.

FRANK REID v. OLYPHANT & CO.

   Mr. J. J. Henderson appeared for the plaintiff.

   Mr. WAINEWRIGHT appeared for the defendants.

   The circumstances under which this action was instituted are very similar to those in the case in which Mr. JAMESON, an employee of the same firm at the time they suspended payment, sought to recover compensation for dismissal without due notice and consequent allowances for board, passage home, &cv.  This action was tried about a month ago, and judgment delivered on the 25th ult., and reports of the proceedings on each occasion have been published in our columns.  Mr. Reid, the plaintiff in the present suit, in his original petition made out a claim for Tls. 4,150, whereas defendants, in their answer brought him in a debtor to them in the sum of Tls. 686.88.  The case was first fixed for hearing on the 16th ult., when it was adjourned, and in the meantime it has been before the Court on several occasions.

   On behalf of the plaintiff, an amended petition has been filed in which he states that he is a citizen of the United States, residing in Shanghai, and that the defendants, Messrs. W.W. Parkin, H. S. Geary, Talbot Olyphant, and J. F. Seaman, citizens of the United States, together with Tobias Pim, are merchants and partners, composing the firm of Olyphant & Co., doing business at Shanghai, China, and elsewhere.  That he has been in the service of the defendants ever since the 1st day of July, 1864, at various salaries ranging  from Tls. 400 to Tls.  3,000 per annum.  That from the 10th day of November, 1872, to the 30th day of June, 1874, the petitioner, under his agreement with defendants, was to receive for his services a salary of Tls. 1,800 per annum, and a mess allowance of $75 per month, with quarters, and that there is due and unpaid for such period the sum of Tls. 1,150, as per memorandum attached.  That since the 30th day of June, 1878, the petitioner has been in the service of defendants as clerk and special  agent, under an agreement whereby he was to receive for his services a salary of Tls. 2,800 per annum, together with all his travelling and living expenses; that under this last mentioned agreement there is due to petitioner for unpaid expenses and  salary the sum of Tls. 2,713.11, as per memorandum.  That on the 19th day of December, 1878, the defendants, contrary to the  said last named agreement, dismissed the petitioner from their service without any fault on his part, and without paying him the said sum of Tls. 1,150 due him under the aforesaid first agreement, and without paying him the sum of Tls. 2,713.11  due him under the aforesaid last mentioned agreement.  That by reason of the premises the petitioner is damaged in the sum of Tls. 3,863.11.

   Defendants made no answer to the amended petition, but filed a motion asking that an order of the Court might be issued for the examination de bene esse  of Augustus Allen Hayes, the younger, William Winthrop Parkin, Talbot Olyphant, Hobart Seymour Geary, George Washington Talbot, and such others (if any) of the defendants' witnesses as are resident in the United States,  viva voce, on oath, affirmation, or otherwise, according to their several religions, and that pending the return of the said commission all further proceedings in this matter be stayed.  In support of this motion, the subjoined affidavit was made by Mr. J. F. Seaman, the only member of the defendants' firm in Shanghai:-

John Ferris Seaman, one of the defendants in this suit, being  duly sworn, says:-

   That this suit is brought to recover the sum of three thousand eight hundred and sixty three tales, eleven cents, alleged to be due from the defendants to the plaintiff, for salary and for living, travelling, and other expenses.

   That a large portion of the plaintiff's claim is based upon an agreement alleged to be made in or about the year 1872, and another large portion of the said claim is based upon an agreement alleged to have been made with one or more of the defendants in New York.

   That this  deponent, who is the only one of the defendants at present in Shanghai, has no personal knowledge if the terms of the hereinbefore mentioned agreements, or either of them, and there is no person other than the plaintiff at present in Shanghai who has any direct personal knowledge thereof.

   That Augustus Allen Hayes, the younger, William Winthrop Parkin, Talbot Olyphant, Hobart Seymour Geary, and George Washington Talbot are respectively material and necessary witnesses for the defendants in this cause, and this defendant is advised and verily believes that the defendants cannot proceed safely to the trial of this cause without the evidence of the several said hereinbefore mentioned persons.

   That the said Augustus Allen Hayes the younger, William Winthrop Parkin, Talbot Olyphant, Hobart Seymour Geary, and George Washington Talbot are respectively at present residing in the State of New York, or elsewhere in the United Sates out of the jurisdiction of this honourable Court.

   That the defendants have, as this  deponent is advised and verily believes, a good defence to the plaintiff's claim on the merits.

   That this application for a commission is made bona fide for the purpose of procuring the evidence of the said several hereinbefore named persons, and not for delay.

   The motion was down for hearing to-day.

   The COURT said it understood there was a probability of an arrangement being come to, and asked if that was the case?

   Mr. WAINEWRIGHT - I think we are agreed, but we don't exactly know what we are agreed about.

   Mr. HENDERSON. - As I understand it, the matter stabs in this way.  My client wishes the case to be continued until such time as he and the defendants, too, can correspond with Mr. Parkin and the other representatives of the firm in New York, and get their statements with reference to the first and last mentioned contracts in the petition, and that each party is willing, when this is done, that the case so far as the contracts go, should be decided by their letters, without the expense and trouble of taking the depositions on oath.  I am willing for the case to be continued four months until this can be done.

   At the same time, however, I submit that the defendants are not entitled to ask for a commission until they have filed their answer and the pleadings made up.  The defendants have the opportunity to file an amended answer to the amended petition, but up to now they have not done so, and until they do they are not entitled to a commission.  But if it is understood that an amended answer will be filed before the evidence from New York arrives, I have no objection to the odder for a continuance of the case for four months being granted.

   The COURT - If the two Counsel agree and set it out in writing and file it, that the correspondence shall take the place of sworn testimony, certainly that testimony would be admitted, and would be held to be good.

   Mr. WAINEWRIGHT - If the suit goes on at all, such evidence I should think could be used.  I was under the impression that the suit was to be withdrawn altogether, and that it was proposed to leave the matter to be decided by the partners in New York who engaged Mr. Reid.  But if that course is not to be taken and the suit goes on, I have not the least objection to file an amended answer, and then, by consent, we can arrange that the letters received from New York be read and put in as sworn affidavits.

   The COURT - The question is between yourselves whether the case goes on or not.

   Mr. HENDERSON - My client wishes to hold the security he has by attachment, and to do that I suppose the case must be continued and not withdrawn.  The advice I gave to my client was to continue the case for three or four months until the letters arrived from New York, and he has instructed me to act up to that advice.

   The COURT - An answer to the amended petition, I believe, had not been filed.

   Mr.  WAINEWRIGHT - No.  I have filed an affidavit in support of this motion for a petition, and I have no objection to file an amended answer if it is thought necessary that I should do so.  I may say I am entirely in my learned friend's hands with regard to a continuance of the suit; but if we agree what we will not have the expense of a commission for the examination of witnesses in New York, and that the evidence given by them in their letters will be treated as taken by a commission, that will suit me.  The case can be continued and I will file an answer, although I hardly think it necessary for me to do so, as the letters written by Mr. Reid and my clients will be exchanged, and all the parties will know what is going on.    As a matter of pleading, however, if my learned friend wishes me to file an answer, I will do so.

   Mr. HENDERSON - I am of opinion that the case will not come into Court again - that the parties will arrange it among themselves.  But at the same time I have advised my client to continue the case, in preference to withdrawing altogether, to enable him to hold the security by the attachment he has, and I should have no objection to the amount of the attachment being increased.

   The COURT - Then it is arranged that there will be a continuance of the case by consent for four months, which will be until the 2nd June; and it is also understood that the Counsel filed a document stipulating that they agree that the letters received from New York are to be admitted at the hearing as sworn testimony.

 

Source: The North China Herald, 24 June 1879

IN THE U.S. COURT FOR THE CONSULAR DISTRICT OF SHANGHAI.

Shanghai, 16th June.

Before D. H. BAILEY, Esq., Consul-General, sitting as Judge,

and R.  F. EASTLACK and Captain STEEL, Associates.

FRANK REID v. Messrs. OLYPHANT and Co.

   Mr. J. J. HENDERSON appeared for the plaintiff.

   Mr. R. E. WAINEWRIGHT appeared for the defendants.

   This case was before the Court in February last, when it was adjourned till the 2nd June to afford an opportunity for the parties to communicate with members of the firm of Messrs. Olyphant and Co. now resident in New York.

   Plaintiff claimed Tls. 3,863 alleged to be due for salary, and for living, travelling and other expenses.  A large portion of the claim was based upon an agreement alleged to have been made in or about the year 1872, and another large portion of the claim was based upon an agreement made with one or more of the defendants in New York; and the adjournment was to obtain information from New York in respect to these agreements.  On the 2nd June the hearing was further adjourned until today.

   Mr. HENDERSON, at the outset, read the petition filed on behalf of the plaintiff, which was published in the North China Daily News on the 2nd February.  He then went on to explain that the plaintiff had been associated with Messrs. Olyohabnt and Co.'s firm since 1864.  There were two contracts on which he based his claim.  One of these two contracts was in operation from the 10th November, 1872, to the 30th June, 1874, and under it he claimed a balance of unpaid wages of Tls. 1,150.  The second agreement was entered into between the plaintiff and one of the partners of the firm in New York, and under it he served the defendants from the 30th June, 1878, to December last.  His salary was at the rate of Tls. 2,800 per annum, together will all his living and travelling expenses, and under this agreement he claimed for unpaid expenses and  salary, the sum of Tls. 2,713.11.

   Defendants in their answer denied the statement that the plaintiff had been continuously in their service from the rime he first joined the house in 1864.  They acknowledged that since June, 1878, plaintiff had been in their service as clerk, and that he was to be paid Tls. 2,800 per annum, which they said was to cover his living expenses as well as salary.  Plaintiff denied that the Tls.  2,800 per annum were to cover his salary, and living and travelling expenses; it was only his salary, and the question to be decided under this agreement was whether he was only entitled to Tls. 2,800, or whether in addition he was entitled to living and travelling expenses also.

   He (Mr. Henderson) was in a position to prove that before the agreement was made plaintiff, as simple salary, was receiving Tls. 2,800, and had his board and lodging provided, and that subsequently other arrangements were made by which he was to receive the Tls. 2,800 as salary, and be paid his gravelling and living expenses in addition.  Defendants admitted that the travelling expenses were to be paid, but said they had been paid, and in their answer alleged that the plaintiff was indebted to them in the sum of Tls. 796.71, which he should show was not the case.

   Plaintiff was then called and examined at great length, giving an outline of his career since he entered the services of the firm in 1864.  There were certain agreements previous to the fall of 1872, which it was not necessary to refer to, if the defendants withdrew their statement that he had not been continuously in their service.  He knew that they referred to a period in 1869 when he was north at Saghalien, but he could prove by the books of the house that he was credited with salary for that time; in fact he had never been out of the employ of the house for a single day. 

   When he returned to Shanghai in November, 1872, Mr. Hayes, who was then in charge of the house, informed him that he did not require his services any longer, but he made him an allowance for living expenses.  He remained at the office and did such work as w as required from time to time, and finally in February, 1873, he made an agreement with Mr. Hayes whereby he was to be paid a certain salary, and it was expressly stipulated that the salary was to be retrospective, so that he could be able to say he had never been out of the house.  This was agreed to by Mr. Hayes, and plaintiff was paid from November, 1872.  The plaintiff then read the letter which he sent in Feb. last to Mr. Hayes, one of the partners in New York, stating the terms of the verbal agreement between them, and asking his confirmation of the facts.  He next read Mr. Hayes' reply, which was to the effect that it was out of the question to think that he should remember what happened between six and seven years ago, and at a distance of thousands of miles; mall salaries, he said, were written off monthly, and he could not understand how Mr. Reid had failed to receive anything which had been credited to him. The plaintiff then stated that the explanation of the agreement as given in his letter was correct, and he would swear to it.  It was agreed that he should receive Tls. 180 a month, and that it was to be retrospective to the time he returned from Saghalien.  Mr. Hayes left before witness discovered he had not been credited with part of his salary, and no one else than Mr. Hayes knew personally about that agreement, as Mr. Hayes was the managing partner at the time the agreement was made.

   He spoke of it to Mr. Talbot Olyphant, who admitted the claim which he made, viz., the balance of Tls. 50 a month from the time he returned from the north.  Mr. Olyphant said he would refer it to the house at New York.  Witness did not know that any allowance was made by Mr. Olyphant of Tls. 25 a month, until he received a letter to that effect, two weeks before he wriote to Mr. Hayes in February last. The amount which became due under this agreement was Tls. 1,150.

   Witness then read a letter which he write to Mr. W. W. Parkin, a member of the firm in New York, in regard to the last verbal agreement made between plaintiff and Mr. Parkin in New York in 1878, by which he was to be allowed Tls. 2,800 per annum, and to have all travelling and other expenses paid while travelling through Asia.  Mr. Parkin, in his reply said he understood that while Mr. Reid was in the United States, he was to receive the same salary as he had been receiving bin China, Tls. 2,800, less Tls. 1,000 which was for mess allowance when here; and he understood that the s alary would be continued on the plaintiff's arrival in China, with any actual expenses incurred in travelling for the firm, but that private expense for living were not to be included.

   He also read a letter sent to Mr. Talbot Olyphant, and his reply in regard to the salary under the last agreement, Mr. Olyphant saying that he always considered that the salary was Tls. 1,800, and the Tls. 1,000 additional for expenses, although all was for convenience called salary.  Mr. Olyphant said he never contemplated that the plaintiff was to receive Tls. 2,800 as salary and allowances over and above that.

   Witness held that the amount due to hymn under the last agreement was Tls. 2,713, and Tls. 1,150 under the other.  He was not  discharged on account of any fault on his part.  He was discharged on the 19th DECEMBER, 1878.  He had not had any employment since that time, except what he had done for himself.

   The COURT then adjourned.

   On resuming in the afternoon, the plaintiff in cross-examination by Mr. Wainewright, stated he first came to Shanghai in a ship belonging to Messrs. Olyohant and Co.  He was engaged in New York, but not for any particular term.  When he went to Shanghai  he did not consider himself in the service of the firm, but soon after his arrival there he did business for them, and subsequently accepted an appointment as their agent, which terminated on his return to Shanghai.  He was examined at some length as to his monetary transactions with the firm, and asserted that he had never received money from them he had not returned.

   Mr. J. O. FULLER, who had kept the books of Messrs. Olyphant and Co. for six years, was next called, and proved that some of the items in the statement of accounts submitted by the defendants were different to the wording of the entries in the books.

   This concluded the evidenced on behalf of the plaintiff, and the Court then adjourned.

 

Source: The North China Herald, 24 June 1879

IN THE U.S. COURT FOR THE CONSULAR DISTRICT OF SHANGHAI.

Shanghai, 18th June.

FRANK REID v. Messrs. OLYPHANT and Co.

   This case was adjourned from Monday, when the evidence on behalf of the plaintiff was completed.

   Mr. WAINEWRIGHT now proceeded with the defendants' case, remarking that it was his intention to examine only one witness, Mr. Seaman.  The nature of the defence, he thought, was pretty well shown by the answer, and he would reserve the observations he had to make on the case until after he had called his witness.

   Mr. SEAMAN was then s worn.  He deposed that he became a partner in the firm of Messrs. Olyphant and Co. in July 1874 or 1873 - he was not sure which year it was.  He made no arrangements with Mr. Reid personally, and only knew from hearsay what his engagements with the firm were.  He knew that for nine months from the 1st April, 1873, Mr. Reid was credited with Tls. 100 per month, and he had never heard that Mr. Reid had claimed to be credited with Tls. 150 per month for that period.  When Mr. Reid went to New York, in 1877, he had no positive agreement with the firm.  It had not been arranged when he stated that he should return.  When Mr. Reid returned, he (witness) was not in Shanghai. Subsequently Mr. Reid told him that his salary was to be Tls. 2,800 per annum.  Mr. Reid did not tell him that he was to have a mess allowance in addition to that.  The first intimation he had of such an allowance was when this suit was instituted.  He understood that the Tls. 2,800 was to cover everything. If Mr. Reid had been sent to Canton or Foochow, where he would have board in the house, he should have considered he was not entitled to the full amount of Tls. 2,800.

   There was no arrangement between the firm and their employees as to passage Home.  The firm did not pay Mr. Reid's passage when he went Home in 1877, and as far as he knew the firm did not pay his passage out again. It was not the usual tithing for the firm to pay passages Home for their employees.  The original entries in the books relating to Mr. Reid's salary were made by Mr. Fuller, without his knowledge, and subsequently he ordered then to be corrected.

   Mr.  WAINEWRIGHT read the correspondence which had passed between Mr. Seaman and the partners in New York in reference to the case.

   Me.  WAINEWRIGHT, in addressing the Court on behalf of the defendants, alluded to the observations made by Mr. Henderson, in opening the case, as to the statements in the answer, remarking that they were entirely uncalled for and rather highly coloured, inasmuch as the evidence of Mr. Reid himself fully bore out the statements that were made.  The second paragraph of the answer denied that Mr. Reid had been continuously in the employ of the firm of Messrs.  Olyphant and Co. since he first joined it. When Mr. Reid returned from Saghalien he had no engagement with the firm, as he himself had admitted; he was told that he was not wanted but was granted an allowance for his board and allowed to live in the house, but it was not until the following March or April that he was given an appointment; and when he went Home in 1877 it could not be said he was in the service of the firm; therefore the statements complained of were perfectly true.

   The case divided itself intro questions connected with two separate accounts attached to the petition, and he would deal separately with them upon the evidence that had been produced before the Court.  The first account went back to the year 1872, and in point of fact a portion of it must be considered barred by the Statute. At all events it was a very ancient claim to say the least of it, and was to be viewed with a certain amount of suspicion, a stale claim of this kind being one that the Court should look more narrowly into than one that had just accrued.  Plaintiff's story was that Mr. Hayes, after allowing him to live in the house from November, 1872, when he returned from Saghalien, to April, 1873, proposed to give him a salary of Tls. 150 per month, and for the purpose of allowing Mr. Reid to say that his connection with the house had not been broken, in a for of noble generosity, he made him a present of over Tls. 600.  This was to enable Mr. Reid to look back on a continuous period of service, but it did not seem to him a very mercantile transaction - he thought merchants were not in the habit of making presents of Tls. 600 without they got something in return, and here they got nothing except the consolation to Mr. Reid that his connection with the house had not been broken.  On the face of it, the thing was hardly probable.

   The only evidence, he maintained, that Mr. Reid's salary was to be Tls. 150 per month was that given by Mr. Reid himself.  When Mr. Hayes was appealed to he had forgotten all about it, and the books of the firm contradicted Mr. Reid's assertion.  It was in evidence that on the the 23rd August, 1873, a compradore order was given for Tls. 1,116.41, which was the exact balance, according to the books, due to Mr. Reid on that date, which was inconsistent with the theory that he was entitled to a   salary of Tls. 150 per month, from the previous November. And again, tree was the loan of Tls. 750 on the 31st December, 1875.  Mr. Reid applied for a loan of Tls. 750 from the very gentleman he had said he was urging to recognise the claim, Mr. Hayes, and the claim, if it had been allowed would have put him in such a position that he would not have required the loan. But in preference to obtaining g a settlement of his claim, he made a favour of the loan and got the money, and it was in evidence that he repaid it in April and May, 1877, and said nothing about his claim against the house for a larger amount. The natural course would have been for hymn to have at that time brought the matter to a settlement, and not having done so it raises a strong presumption that Mr. Reid then regarded his claim as not worth anything, and that the partners concerned would have nothing to do with it.  Mr. Reid's conduct, to say the least of it, was inconsistent with the reality of the thing; and this portion of the claim rested between his statement and what was shown by the books of the firm, and Mr. Reid's action was qualified by his drawing a compradore order for the exact amount mentioned in the books, and his borrowing money from the firm and paying it back when he had this claim pending against them.

   Then, as to the second part of the claim, he contended the letters from New York decided that conclusively.  Mr. Reid's salary was Tls. 1,800 per annum, and Tls.  1,000 per year as an allowance in consequence of the place of business being changed and the junior mess broken up.  But Mr. Reid wished the Court to believe that the whole Tls. 2,800 was for salary, and that he was to have an allowance for living in addition.  Such a thing was exceedingly improbable, and Mr. Reid had not brought forward the least tittle of proof in support of his contention beyond his own statement. He submitted that the claim was negatived by the letters from New York, and though he gave Mr. Reid credit for a desire to do that which was just and right he thought this was a little out on.  The wish was no doubt father to the thought, and Mr. Reid had no doubt worked himself up to believe that he was entitled to make the claim, but the claim existed only in his imagination.

   As to the claim for passage Home, he presumed the Court would follow the precedent in the other case (Mr. Jameson's).  Here, however, there was no evidence that Mr. Reid was going Home, and as he had admitted that he had obtained certain agencies formerly held by Messrs. Olyphant and Co., it was to be presumed that he was going to stay in Shanghai.    With regard to the claim for loss of employment, he presumed the Court would also follow the course adopted in Mr. Jameson's case and not allow more than three months' salary, at whatever rate the Court decided Mr. Reid was entitled to be paid at the time Messrs. Olyphant and Co. suspended payment. With these observations, he left the case in the hands of the Court.

   Mr. HENDERSON, in reply, maintained that Mr. Reid's was the only evidence before the Court taken on oath, and that all the other was not worthy of consideration for a moment.  Mr. Reid had sworn positively to the two contracts, and there was not a syllable of testimony to contradict him - his positive testimony must be taken before compradore orders, the books of the firm, or letters from the partners in New York.  In reference to what Mr. Wainewright had said about a portion of the claim being statute barred, he begged to remind the Court that this so-called stale claim had frequently been presented to Mr. Hayes, one of the partners, and attempts to obtain a settlement with him had failed.

   As to the second agreement, he contended that the claim was purely in accordance with it, and maintained that the original entries in the books supported that view, and complained of their being altered to suit the convenience of the defendants.  In conclusion he urged that there was not one word in the letters which had been received from New York contradictory of the statements made by Mr. Reid, whose claim he maintained must be allowed.

   The COURT reserved its decision.

 

Source: The North China Herald, 15th July.

12th July.

FRANK REID v. Messrs. OLYPHANT & Co.

   This case was first instituted in January last, and in the meantime it has been several times before the Court, the proceedings in each instance being reported in our columns.  Today, the Court delivered the following

Judgment:-

   The COURT said - The Associates and myself are at one in regard to the decision in the case of Frank Reid v. Messrs. Olyphant & Co.

   This action is brought to recover Tls. 3,863.11, as set forth in the plaitniff's petition, for salary, travelling and living expenses incurred by plaintiff, in the service of and under contract with the defendants, and including damages for breach of contract for hire of the plaintiff as clerk of the defendants, and for transportation to the United States.

   The claim of Tls. 1,150 for arrears of salary from 10th November, 1872, to 30th June, 1874, under a contract with A. A. Hayes, Esq., managing partner of Messrs. Olyohant & Co. in Shanghai for that period, is supported by the testimony od the plaiontiff Reid.  The letter of Mr. Hayes, which is in evidence, is simply informatus-non-sum.   Mr. Reid, in his letter to Mr. Hayes, states his understanding of the agreement fully and fairly.  Mr. Hayes, in really, says it is quite out of the question that he should remember what happened in an affair of this kind between six and seven years ago.  The evidence of the plaintiff, which stands unimpeached, must therefore be taken to be conclusive upon that point.  The compradore order for taels 1,116.41, and the loan of taels 750 by one of the defendants to the plaintiff, would have been corroborative evidence to a denial of the agreement of the partner with whom it was alleged to have been made, but in the absence of such a denial they cannot upset the sworn statement of Mr. Reid.  Besides, there are many ways of accounting for such transactions as the order and loan are not inconsistent with the claim of the plaintiff.  But it is not necessary to go into that further.  The Statute of Limitation was referred to as a bar to this part of plaintiff's claim, but as the defendants did not demur nor plead the statute in bar it cannot now be considered.

   The balance of the claim depends upon the amount of salary and allowances, which plaintiff was to receive under his contract with the defendants.  By the evidence of the plaintiff it appears that during the months of May and June, 1876, an agreement was arrived at between the plaintiff and Mr. Talbot Olyphant, then the managing partner of Messrs. Olyphant & Co., at Shanghai by which the plaintiff's salary was fixed at taels 2,800 per annum. At this period the defendants decided to change the mode of compensation to their clerks, paying, as Mr. Olyphant says: "Simply salaries without allowances of any nature."  After considerable negotiation, as it appeasers in the letters of plaintiff and Mr. Olyphant, about the cost of living, they finally agreed upon the round sum of taels 2,800 to be paid as salary, and the entries in the defendants' books show that amount regularly credited to the plaintiff as salary, except an entry made subsequent to the commencement of this action, which, although no doubt made in good faith by a partner having no personal knowledge of the agreement, can have no weight as against the regular entries up to that date.  Taking the testimony of the plaintiff and his letter of 4th February, 1879, to Mr. Talbot Olyphant, and the reply of Mr. Olyphant, 1st April, 1879, it seems clear that the minds of the parties met upon the sum of Taels 2,800 to be paid as salary.  Any reservation, not expressed, that either party nay have had in his mind cannot vary the contract.

   Subsequently, in February, 1879, as shown by the testimony of the plaintiff, and his correspondence with W. W. Parkin, Esq., one of the partners in New York, the amount of the salary was reaffirmed at Tls. 2,800, to be credited to the plaintiff during his absence from China, and to continue at the same rate on his return to China.  There is some hesitation in Mr. Parkin's letter as to what was included in the salary of 2,800 taels, bur he says: "If you named the sum of taels 2,800 to me I understand that such was your salary."  Mr. Reid under oath states that he named taels 2,800, and that the amount was agreed upon as his salary.

   Upon the whole testimony, it must be held that the plaintiff's claim for taels 2,800 per annum as salary from June, 1876, to December 19th, 1878, when the defendants suspended payment, is sustained by the weight of evidence, but the evidence does not establish an agreement to pay the plaintiff 75 taels per month for living expenses, in addition to the amount agreed upon as salary, and this part of the claim must be disallowed.

   The rule of decision in rhea case of Jameson v. Olyphant & Co. as to compensation for breach of contract, and transportation to the United States, will be followed in this case, as in these two particulars the cases are identical.

   The item of 50 taels for travelling and other expenses while at Hongkong, Macau and Canton, is so far proved, and not objected to by the defence, as to authorize its allowance.

   Following the facts held to be established, and the law applicable thereto, judgment in favour of true plaintiff will be entered for taels 1,769.23, together with costs.

   Mr.      WAINEWRIGHT applied for the defendants to be allowed costs on the first petition. He explained that the original petition was amended by which the plaintiff shaped his claim differently, and he thought it was only fair that the plaintiff should pay the costs of the first petition.

   Mr. HENDERSON had no objection to the costs on the original petition up to the time it was amended, being taxed against the plaintiff.

   His HONOUR said it was proper that it should be so.

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