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Colonial Cases

Rothwell v. Olyphant and Co., 1879

[wrongful dismissal]

Rothwell v. Olyphant and Co.

United States Consular Court, Shanghai
Bailey, 4 Februart 1879
Source: The North China Herald, 7 February 1879



Shanghai, 4th Feb.

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


   Mr. MYBURGH appeared for the plaintiff.

   Mr.  WAINEWRIGHT appeared for the defendants.

   This was an action to recover damages for wrongful dismissal.

   The petition of the plaintiff is as follows:-

  1. - That he is a British subject residing at Shanghai.  That the defendants, Messrs. W. W. Parkin, H. S. Geary, Talbot Olyphant, G. W. Talbot, and J. F. Seaman are citizens of the United States, and tiger her with the defendant Tobias Pim carried on business as merchants in Shanghai and elsewhere in China and Hongkong, under the style and firm of Olyphant & Co., and J. F. Seaman, one of the defendants, is within the jurisdiction of the Court.
  2. - That in conservation that the plaintiff would enter into the service of the defendants and serve them for the period of time running from 1st June, 1877, to 31st May, 1880, or until the service should be determined as hereinafter mentioned, in the capacity of tea-taster or general assistant, at a  salary of Tls. 300 S.S. per mensem, the defendants agreed, in writing, to retain him in the said service in the capacity and on the terms aforesaid  during the  said period, or until the expiration of six months after a notice in writing to determine the  said service had been given either by the plaintiff or the defendants.
  3. - The plaintiff then entered the defendants service in the capacity aforesaid and continued in the said service until the 2nd  shall be so determined as aforesaid.,

   And the plaintiff claims six months' salary, that is Tls. 1,800, in lieu of the six months' money, and effects, of the defendants; and that he nay have such further or other  relief as the nature of the case may require.

   And the plaintiff also claims Taels 300 being the amount of unpaid salary for the month of December, 1878, and the sum of Taels. 650, or such other amount as may be standing to his credit in the books of the said firm.

   And the plaintiff altogether claims Taels 2,750 S.S., which he prays the defendants may be decreed to pay, together with the costs of the suit, and that in the meantime an attachment may issue against the property, goods,  and chattels, money and effects, of the defendants; and that he may have such further or other relief as the nature of the case may requite.

   Defendants, in their answer, admit the allegations contained in the 1st, 2nd and 3rd paragraphs of the petition.  They admit that they are indebted to the plaintiff in the sum of Tls. 300 for  salary, for the month of December, 1878, and in the sum of Ts. 613.28, the amount standing to the credit of the plaintiff in their books.  They deny that the plaintiff is entitled to six months'  salary in lieu of the six months' notice mentioned in the petition.

   Mr. MYBURGH  said before he opened the case he should like to amend the petition by insuring in the prayer a clause to the effect that the plaintiff asked the Court to award any sum it might think proper as Counsel's fee.

   Mr. WAINEWRIGHT presumed his learned friend based his application on what was the practice of the Court for a short time while Mr. G. Wiley wells presided, who decoded that when an attorney's fee was prayed for in the costs he would allow $20, and that, Mr. Wells  said, was analogous to the Home practice.  Whether Mr. Myburgh meant more, he did not know, but if he did he should have something more to say.

   Mr. MYBURGH replied that he was not going to argue the point.  He simply asked for the petition to be amended, and his Honour could award what sum he considered right.

   The COURT said it was quite competent to amend the petition.

   Mr. WAINEWRIGHT did not object to the amendment, and the Court allowed it.

   Mr. MYBURGH said - This, your honour, is a case in which the plaintiff sues the defendants for compensation for wrongful dismissal, and I have agreed with my learned friend to make it as short as possible for your Honour's convenience.  Everything in the petition is admitted, except the sum plaintiff claims as standing at his credit in the books; instead of $650 they say it is $613; and defendants deny that the plaintiff is entitled to six months' notice.  My learned friend, I understand, is going to contest that point, though he thinks three months salary is a proper measure of damages to allow.  As your Honour has considered a similar case a short time ago, in which all the law was well considered, I shall not trouble you with any law now.  I shall merely call the plaintiff to prove the contract he had with the defendants; and then your Honour can judge whether he is entitled to six or three months' salary.  I shall prove that he is a tea taster, and that the tea season, at the time he was dismissed,  was virtually over, and it w as impossible for him to obtain other employment, and he believes he cannot obtain other employment until the new tea season commences, which will not be before the middle or the end of May. Plaintiff was of the opinion that if he now came to an arrangement with some firm for next season, his salary would date from the opening of the season.

   Taking your Honour's law as laid  down in the previous case, that this is a breach of contract under which plaintiff is entitled to be paid for the full term of his unexpired service, subject to the defendants' right to recoup whatever the plaintiff might during the period have reasonable earned, I say that in this case there is no possibility of the plaintiff getting employment for five months from the time of his dismissal; and, therefore, if your honour decides that he is not entitled to six months' salary as a proper measure of damages, it may be found that he is entitled to his s alary for four or five months.  In the first place, I will put in a copy of the agreement between the plaintiff and the defendants.

   Mr.  WAINEWRIGHT had no objection to make to it.

   Mr. MYBURGH - I have nothing more to add.  It is my contention that the agreement is to be read that there must be six months' notice or six months' salary - that the object of the parties was, if plaintiff was dismissed he was to have at least six month's notice to enable him to seek other employment; and, on the other hand, if plaintiff wished to terminate his agreement, he was to give six months' notice to the defendants, so as to afford them an opportunity to get another person to fill his place. That, I say, was the intention of the parties, and plaintiff now claims six months' salary in lieu of notice.

   The COURT - Will you read the clause in the agreement referring to the notice.

   Mr. MYBURGH - It is the last clause in the agreement, and  says:-

In the event of either party to this agreement wishing to withdraw there from, the same may be  done by either side six months' after notification to this effect has been given in writing by the party wishing to withdraw. 

No written notice as given; it was waived on either side.  I will now call the plaintiff.

   THOMAS ROTHWELL, the plaintiff, deposed - I am a tea taster, and have been in the service of the defendants.  When I received notice of dismissal from them on the 2nd January, the tea season was nearly closed.  The new tea season in Shanghai will open about the middle of June.  I believe up to that time I shall not be able to obtain employment.  If I now entered into an agreement with a firm my salary would date from the opening of the tea season.  There is nothing now for me to do in Shanghai, and there is not sufficient time for me to go Home to obtain employment for the next season. It would be useless, I consider, starting business on my own account in Shanghai just now, as I should have to incur expense, and there is no tea for me to buy, the season being virtually over.  I should have nothing to do if I started on my own account.  I have not yet heard of another situation, and I don't think there is any possibility of my doing so until the new tea season commences.

   Cross-examined by Mr. WAINEWRIGHT - I have been in China twenty-four years.  The tea season opens in Foochow about the middle of May, and at Hanker about the end of May.  The chaazes generally leave Shanghai for Hankow about the 12th May.  Supposing I obtained an engagement with a foreign firm probably I might be sent up to Hankow.  I have been sent there before.  In that case the firm might date my salary from the beginning of May.  If I obtained an engagement and was sent to Foochow, I should start early in May, and my  salary probably would date from the 1st May.

   By Mr. MYBURGH - All this is supposing I get an engagement, and at present I have no chance of getting one.

   Mr. MYBURGH - That is all the evidence I intend to offer, and I have only a few words to address to the court.  As I said before, I contend that the six months' notice in the agreement must be read six months'  notice or six months' salary.  That is the stipulation in regard to time agreed upon, and the damages in effect are liquidated.  But if your Honour should decide the damages are not liquidated, I rely on the law your Honour quoted in the case of Jameson v. Messrs. Olyphant & Co. The quotation I refer to is from Sedgwick on the Measure of Damages, p. 416, Maule, J.:

That there is a rule in cases of this kind seems not to me to be so doubtful; and it is that the plaintiff has a right to recover the stipulated wages for the full time, subject to the defendants' right to recoup whatever the plaintiff might during the periods have reasonably earned.

And so, in this case, if the damages are not liquidated, the plaintiff claims for the whole amount of the unexpired term of service, subject to any reduction your Honour thinks reasonable; and the plaintiff has stated on oath that there are no reasonable grounds for supposing that he can obtain employment before May.  Your Honour has considered the question of custom in the former case, and I do not propose to go into it now, but shall leave the case as it stands for your decision.

   In answer to the Court, Mr. Myburgh said the plaintiff was paid his salary up to the end of December last.

   Mr. WAINEWRIGHT. - All I have to submit on behalf of the defendants is that the law and the authorities cited by your Honour in the case of Jameson v. Olyphant and Co. apply equally to this case, and that really the sole question is the amount of damages Mr. Rothwell is likely to suffer by his wrongful dismissal.  The quotation made by your Honour from Parsons on Contract, vol. 3, page 189, applies here.  That was a case where a corporation hired an overseer at so much wages, and such a share of the profits for three years, and dismissed him at the end of one year; and it was laid down that the Jury should determine what his losses were by the wages and profits for the residue of the three years, deducting what his time and labor might be worth for that time, and so forth.  I say in this case the defendants had the power to determine their contract with the plaintiff by six months' notice.  They have broken their contract, inasmuch as they did not give the plaintiff six months' notice, and the question is what damages the plaintiff has suffered in consequence.

   I say that all the damage he is likely to suffer is that he will probably be idle for four months, reckoning from the date of his dismissal, because the plaintiff is evidently a gentleman of great experience in trade, and it is not likely that he will be left without employment at the opening of the ensuing tea season; and if he is employed, as he has stated himself the probabilities are that his salary will date from the 1st May.  Under these circumstances, the utmost I think the Court should award him is four months' salary. 

   With regard to the application for Counsel's fee to be included in the costs, adopting the principle your honour has laid down in the case of the Vesuvius, that you would not introduce a new system without notice, I ask that if you think it proper to allow a fee at all, it will not be more than $20, which is the only precedent for Counsel's fee in this Court.

   Mr. MYBURGH - I leave the question of costs entirely with your Honour.

   The COURT - The question invoked in this case is sufficiently identical with that in the case of Jameson v. Olyphant and Co.; and I think, without going into any elaborate consideration of it, it can be decided in the same way as that case was decided.  On the plaintiff's own testimony, it is probable that he will receive employment about the 1st May.  Undoubtedly his long residence in China and his special skill as a tea taster make him a very desirable person in that occupation, and I should say that the probabilities upon the testimony are that he will certainly obtain employment about the 1st May; and inasmuch as there was a three months' allowance in the case of Jameson, I think it will be best to follow that decision.  Therefore, there will be an allowance of three months' salary, together with the other items admitted to be due by the defendants in their answer.

   As to Counsel's fee, I prefer not to make any allowance of the kind until there is a settled practice in regard to it. I have it in contemplation to make certain rules in regard to fees based by analogy on the proceedings of the Circuitry and District Courts of the United States, although it is doubtful whether that law directly applies; still I think there is power to do it, and until this is done I prefer not to change the general practice of the Court.

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