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Colonial Cases

Polite v. Robins, 1881

Polite v. Robins

United States Consular Court, Shanghai

Denny, 26 June 1881

Source: North China Herald, 26 June 1881

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

Shanghai, 26th June.

Before O. N. DENNY, Esq., Consul-General, Acting Judicially.

G. POLITE v. MORITZ ROBINS.

  This was a suit brought to recover the sum of $317, for board, lodging and tonsorial operations, and the value of a box of 500 cigars, the accounts extending from 1st October, 1878, to 1st November, 1880.

  Plaintiff conducted his own case.

  Mr. WAINEWRIGHT appeared for the defendant.

  Plaintiff deposed to the items of the bill handed into Court, and said that he had received no reply to his application for payment.

  Mr. WAINEWRIGHT -Have you brought your books into Court?

  Plaintiff - No.

  Mr. WAINEWRIGHT, addressing His Honour, explained that he had written to the plaintiff on the previous day asking him to bring into Court all his books containing any entries that might throw light on the claim, and also a number of papers that he (Mr. Wainewright) was informed had been removed from a certain drawer by the plaintiff, or Mr. Gronner, on the night of the 28th of May, they being virtually in the possession of the defendant at the time.  He should now ask the Court to order the plaintiff to produce all his account books and these papers.  A great number of complicated transactions had taken place between the parties, who had been in partnership with Mr. Gronner under the style of M. Robins & C., and numerous sums of money had been transferred from one to the other, more or loss in settlement of accounts. It had finally been decided to settle matters by referring them to an arbitrator, who had, he supposed, dealt with all claims in existence.  Now the plaintiff was bringing forward fresh claims after the arbitrator's award had been given.  It was important to note that these items had never been presented to the arbitrator, and the learned Counsel thought that the plaintiff's books would throw some light on the matter at hand.

  The defendant, so Mr. Wainewright was instructed, had formerly the use of a desk in the plaintiff's office.  In the desk was a drawer containing a number of papers, and on the night of the 28th of May the documents were removed by the plaintiff or Mr. Gronner.  The defendant alleged that one of these papers was a receipt that covered several items of the account that now formed the subject of this suit.  The learned Counsel asked that the Court should order the production of these papers.

 By Plaintiff - I have no papers belonging to Mr. Robins.  When our partnership was dissolved, he took the papers away, and I took mine.  The account is a private affair between the defendant and myself, and it has nothing whatever to do with the matters of Mr. Robins & Co. The only book that I have is a cash-book.  I have no objection to produce it, and can get it in a few minutes.  I will bring the cash-book on the order of the Court but not on the order of Mr. Wainewright.

  His Honour thought that the cash-book should be produced, but that the application by the learned Counsel as to the papers was not sufficiently detailed for the Court to make an order.

  Plaintiff now despatched Mr. Gronner to fetch the book referred to.  He said that he had no books belonging to the firm of Messrs. M. Robins and Co.  Mr. Bielfeld's clerk had the books of that firm in his possession.

  By Mr. Wainewright - I do not remember when the defendant went to Egypt.  I was not here when he returned from that country. I was then in England.  I returned to Shanghai about the 19th of August, 1880, having been absent since the previous March.  The claim I make for tonsorial operations, $48, was for two years at $24 a year.  I had made a verbal contract.  I sometimes charge people with whom I make a yearly contract during their absence from Shanghai.  I have no connection now with the Siccawei Hotel.  My connection with it ceased some time last year.  I was to pay the bill I owed on account of it, and to receive the money then due to the establishment.  That was the arrangement made at the German Consulate.  I did not claim for these items before the arbitrator because they were due to me on private transactions between the defendant and myself, and had nothing to do with the affairs of M. Robins and Co.  I did put in some private matters.

  The items handed in to the arbitrator, as a "pair of shoes," and "seven napoleons" were private affairs.  The "diamond ring" was the Company's property.  Before I went to Germany, I gave the defendant a box of cigars and also half a box.  I handed the whole box to him to dispose of as my agent.  The duty on cigars was too heavy for me to take them to Germany.

  Plaintiff, in reply to His Honour, said he had only one witness, Mr. Gronner, who had not yet returned with the cash-box, so it was arranged that the defendant's witness, Mr. Bielfeld, should now take the stand.

  ALEXANDER BIELFELD, in answer to Mr. Wainewright, deposed - I recently acted as arbitrator in settling the affairs of M. Robins and Co.  I produce the Agreement of Reference. I acted under that document and made an award.  What you have in your hand is a press copy of the award.  All claims and disputes that I settled were put before me in writing.  I had frequent conversations with the plaintiff during the progress of the arbitration.  Nearly all the claims by the different parties were put in one after the other.  I frequently asked the plaintiff if Mr. Gronner had any more claims against the defendant.  At last he told me that he had no more, and this he told me more than once.  I had to strike some of the claims out.  I cannot say that the books of M. Robins and Co. were well kept.  When I made the award I thought I was settling all differences between the parties who composed the firm.  I did not think the books had been kept satisfactorily.

  By Plaintiff - Since the award you have told me that the defendant owed you for board.  I wished this claim to be settled, and would rather have paid Tls. 50 out of my own pocket than have come here this morning with you.  I do not know whether you are entitled to this bill for board or not.  I was paid to settle all disputes between you and the defendant and Mr. Gronner.  You allowed me to settle them; whether I had the right to do so or not is not now in question.

  Plaintiff here said that he had not presented this account to the witness because he was afraid it would be disallowed.

  Witness, in answer to plaintiff, resumed. - I was at your place the day before yesterday. I may have said that you might be entitled to this claim.  I was anxious that this matter should be arranged, because I did not wish it to come before any Court at all after I had settled it, and also for other reasons that I do not wish to mention.

  By His Honour - I understood at the time that I was settling all the claims and disputes that there were between the parties, private or otherwise.  All that I arbitrated on related to money.  Some were very queer claims, and I heard some very queer stories about them.  For example two of them against Mr. Robins were for "damage to furniture" and "breakage of furniture."

 By Plaintiff - I asked you often if you had any more claims against the defendant, and you said no.

  By Mr. Wainewright - I first heard of this bill about a week ago.  I have never told plaintiff he was entitled to it.  I know nothing about it.  I told him that I had been given to understand that Mrs. Robins (whose board was charged for) was not boarding with Mrs. Polite, but assisting her, and [to plaintiff] I even told you that I thought defendant had a claim against you for his wife's services to Mrs. Polite at Siccawei.

  By Mr. Wainewright - I would rather not state why, in dividing the proportions of the expenses or arbitration among the partners, I decided that Mr., Gronner should pay 75 per cent., Mr. Polite, 20, and Mr. Robins, 5.

  At this stage of the proceedings the hearing of the case was adjourned till half-past two.

.........

  On the re-assembling of the Court,

  ADOLPHUS GRONNER, in answer to plaintiff, deposed:- I was a partner in the form of M. Robins and Co.  Mr. Bielfeld was called on to settle the affairs of the firm, not those of the private individuals constituting it.  I know that the defendant had agreed to pay $24 a year for shaving, &c.  He did not make any payments for board before he went to Egypt.  He had been living at the Toilet Club, and his wife had been living sat Siccawei.  I have often heard you ask him for payment for the cigars, sand he has said that he would pay for them.  I have heard him say that there was plenty of time to settle the old accounts, but that he did not want to draw money from the partnership business.  I am not a partner either in the Toilet Club or at Siccawei.  I owe you a large sum of money. Defendant has never paid any money on this account at all to my knowledge.  On the 28th May, defendant himself divided the papers; he always had the key of the desk. I asked him to open the drawers, and let me take out from them the papers that belonged to me.  I took away the books belonging to Robins and Co.

  By His Honour - At the arbitration my private accounts with the plaintiff and defendant were not submitted.  At that time, I owed a certain sum to the concern.  I had several I.O.Us  for sums that I had advanced to the business.  Defendant kept the cash-book and was responsible for the money of the rim.  I sometimes lent him money, and he gave me receipts in his own name.  My accounts with the plaintiff were not settled by Mr. Bielfeld.

  MORITZ ROBINS, in answer to Mr. Wainewright, deposed - I have been in partnership with plaintiff and Mr. Gronner for nearly three years - since October, 1878.  I went to Egypt on the 11th October, 1879, and returned some time in the following June.  Before I went to Egypt I was in Japan for five weeks.  When I returned from Egypt, Mr. Gronner at first refused to show ne the books, and he subsequently told me that there was $491 to my credit.  It afterwards appeared that there should have been $2,799.  Nr. Gronner afterwards said that I had been credited with only $260 short.  M r. Bielfeld enquired about this deficit, and in his finding fixed it at $2,200.90.  On this deficit I had been charged $318.12 as interest, which the arbitrator made the firm refund me, I never made any contract for "tonsorial operations" with the plaintiff.  I have never paid him $2 a month for them. I was debited at the various times for what I had done for me. I had $1,900 more in the firm than they had.  Part of the time charged me on this item I was away in Japan.  

  With regard to the "eight months" board for Mrs. Robins at $20, as agreed," on my return from Egypt I paid $469.40, which included unpaid board for myself and my wife, and also for some furniture.  I will swear that I paid that amount to Mr. Gronner.  As to another item for "board from July to October, 1879," I was in Japan for five weeks out of that time; that amount is also included in the $469.40 referred to.  When Mr. Polite came to Egypt, he came to my room and put a box of cigars there.  I smoked a few of them sometimes, and he used to give them away to almost any one who came in.  When he went on from Egypt he may have left me a few bundles, but I never agreed to pay for therm.  He took the box on to Trieste, where he got fined through them.  No claim was ever made on me for these cigars or for board until the 16th inst.  I only owed the plaintiff about one month's board at the time of the arbitration.  I do not now owe the plaintiff anything at all.  I got a receipt for the money I paid Mr. Gronner, which I kept in the drawer of a desk I had in the office of M. Robins and Co.  It was there on the 28th of May.  The drawer was never kept locked.  On the evening of that day, about half-past six, Mr. Gronner came in while I was asleep and took away all the papers belonging to M. Robins and Co.  My boy came to me and said that a coolie had come to take away some of the office furniture.  I then went down and found Mr. Gronner in the office.  I saw my papers were gone and also a Chinese snuff-bottle, but he and the plaintiff were always abusive to me since the dissolution of partnership, I do not think they have been abusive to each other.

  Mr. Wainewright - Indeed, I suppose they are as thick as thieves.

  Witness resumed - I understood that all matters were to be settled by Mr. Bielfeld.  I have heard him ask the plaintiff and Mr. Gronner if they had any more claims against me to present, and heard them say that they had none.  The entry in the book that I produce was copied by Mr. Bielfeld's clerk, Mr. Amelunxen, from Mr. Gronner's book.  I will swear that I have paid the amounts now sued for; that I had a receipt for the money I paid, and that the receipt has been taken away from me.  The sums claimed for board, furniture, &c., were all covered by the sum I paid on my return from Egypt. I had the bills then, but I have not got them now.

  Plaintiff - Will you go to the Synagogue and    swear on the Ten Commandments, according to your religion as a Jew, that you have paid me for this board and so on that I am suing forxxx

[To His Honour.] If Mr. Robins will do what I have just said, I will withdraw this suit and give him the money.

  Defendant - Yes.  I paid Mr. Gronner, and he is your clerk.  The board and lodging were included in the claim settled by my payment of $400 odd.  My wife paid Mr. Gronner $65 for some furniture.  I always paid Mr. Gronner if I had my hair cut or got shaved.  I swear that I have paid you for the board and the furniture, and I am ready to do so according to the forms of the Jewish religion.

  His Honour did not consider that practicable.

  Plaintiff - If you paid the money have you the receipts.

 Mr. Wainewright - The defendant says you stole them.

  Plaintiff - You say that I stole them?

  Mr. Wainerwright - The defendant says that they were in his possession, and that you, or Mr. Gronner, or both, took them out of his possession, and I call that stealing.

  Plaintiff - I want the defendant to prove that. [To plaintiff.] How many rooms did you and your sister-in-law occupy when you stayed at "The Hermitage?"

  After a few moments' deliberation defendant said he thought that two rooms were used.

  Mr. Wainewright reminded the plaintiff that "those who live in glass houses should not throw stones."

  Plaintiff rather warmly informed the learned Counsel that he was not throwing any stones into glass houses (laughter) and said he was sorry his English was not perfect, but he could not help that.  He knew Mr. Wainewright was laughing at him.

  Nothing was father from Mr. Wainewright's mind than laughing at any little errors in speaking English in the plaintiff's remarks.  Plaintiff's English, Mr. Wainewright said, was doubtless quite as good as his morals.

  Defendant asked the plaintiff if Mr. Gronner had not been in gaol at Bombay?

  Plaintiff did not reply to this question, but asked the defendant if he had not been in gaol himself?

  Defendant admitted the fact, but said that it was not for anything more serious than kicking up a row, while Gronner was in gaol in Bombay for swindling.

  In reply to Mr. Wainewright, defendant said that he was quite sure he was in Japan more than a month when he visited that country.

  Plaintiff said that defendant was at that time only absent from Shanghai about ten days.

  In reply to Mr. Wainewright, defendant said - As far as I know Mr. Gronner always received payments for the plaintiff.  I have been in the plaintiff's shop, and seen the assistants pay money to him that they have  taken from customers, and I have also seen him go to the drawer of the desk, and take out loose money that might be there and put it in his pocket.

  ADOLPHUS GRONNER, recalled by plaintiff, said that he knew where the itemised bill of $400 odd was, and if the Court would send an officer with him to fetch it he could produce it in a short time.  He said it was in a certain book that he described.

  The defendant expressed his willingness to this being done, and accordingly the jailer of the Consulate was sent, accompanied by defendant and the witness, to fetch the book.  His Honour, at Mr. Wainewright's suggestion, instructed Mr. Kennedy, the jailer, that he was to take possession of the book and bring it to the Court himself.

  The Court meanwhile took a short recess.

 On the production of the book in Court (an ordinary Lett's Rough Diary) the itemized bill described by Mr. Gronner could not be found in it, and that individual therefore asserted that one leaf which it had been written had been torn out.

  His Honour carefully examined the book, but failed to discover any grounds for this statement, and said he did not think it possible from the appearance of the book that any leaves had been torn out.

  Defendant said he had not torn any leaves out of the book.

  By Plaintiff - My proper name is Robins.  I have a brother whose name is Rosenzweigh.  I have lived in New York five or six years.  It was in 1860 or thereabouts, that I was naturalized there.

  Plaintiff (to His Honour) - I want to show that the defendant is not an American and that he never saw America.

[To plaintiff] What were you in America?

  Defendant - a pedlar.

  Plaintiff - What did you peddle?

  Defendant - Things in general.

  Mr. Wainewright thought that these questions were quite irrelevant to the subject matter of this suit; indeed it seemed as if the plaintiff was setting to work to prove that he had no right to sue the defendant in that Court.

  His Honour said that the plaintiff might put any questions to show that the defendant was not an American.

  Defendant, in reply to plaintiff, said - I lost my papers by fire in Japan, and got a passport from the American Minister there before I came here.

  By His Honour - I was naturalised in New York.  I cannot remember the date.  I lived there five or six years.  I went to America in 1854 or 1855; it was after the Crimean War.  From New York I went to Calcutta in a sailing vessel.  I do not remember the name of the vessel.  From Calcutta I went to Yokohama, and after being there for some years, I came here.

  A reference to the Court records showed that the defendant had been registered here as an American citizen on the strength of a passport from Mr. De Long; that he had been naturalized at Boston, Massachusetts, and that he resided at that city when he was in America.

  His Honour said that so many conflicting statements had been made that he should adjourn the case until Tuesday morning to give the defendant an opportunity of accepting the plaintiff's challenge as to taking a solemn oath in the Synagogue.

  Plaintiff stated that if the defendant did so he would abandon the suit, and, moreover, he would pay $500 into Court to be given to the poor, if he could swear he had paid him.

  Mr. Wainewright supposed that he should have an opportunity of commenting on the evidence on Tuesday morning.

  His Honour said he should, of course, be willing to hear the learned Counsel's remarks on the evidence at that time.

28th June.

  The hearing of this case, in which the plaintiff sought to recover the sum of $317, for board, lodging and tonsorial operations, and the value of a box of 5400 cigars, the accounts extending from 1st October, 1878, to 1st November, 1880, was resumed from Saturday last.  On that day the plaintiff asked the defendant if he would swear, in the Synagogue "according to the forms of the Jewish religion" that he had, as he asserted, already paid him the sums for which the suit was brought.  He also went on to say that if the defendant would make oath in the manner he referred to, he would not only abandon the claim, but pay $500 into Court for the benefit of the poor.

  His Honour then said that the evidence that had been given was so conflicting in its character that he would adjourn the case till this morning to give the defendant an opportunity of accepting the plaintiff's challenge, as he had expressed himself willing so to do.

  This morning the Plaintiff again conducted his own case.

  Mr. Wainewright appeared for the defendant, and, addressing His Honour, said that he had been given to understand that the suggestion on which the case had been adjourned from last Saturday, had fallen through.

  His Honour had heard that the plaintiff had found himself unable, as far as he was concerned, to make the necessary arrangements.

  Mr. Wainewright was instructed that both parties had applied to the authorities of the Synagogue, but that the gentlemen to whom application had been made had not seen their way clear to granting the necessary facilities.  He (Mr. Wainewright) did not know whether the Court had received any information officially on the subject.

  His Honour said that the plaintiff had told him that to perform the contemplated ceremony it would be necessary to summon a number of witnesses, whose attendance could only be ensured upon the order of the Court of their nationalities.  No means existed of enforcing summonses of such a nature.  He (His Honour) was under the impression on Saturday that the observance could be performed by the parties themselves without the intervention of secular officials.  When, however, that became necessary, any such reference was, of course, impracticable.

  Mr. Wainewright did not wish to bring forward any more evidence and he would now, with His Honour's permission, make a few remarks on the evidence given on Saturday.

  In answer to a question from His Honour, as to whether the plaintiff had any evidence to produce in rebuttal of the defendant's statements, he said he had another witness, but it was now too late to summon him.

  Mr. Wainewright would have no objection to an adjournment of the case for the production of this witness if the evidence he was to give was likely to be material.  He was not afraid of any witness the plaintiff might call.

  The plaintiff said that on Saturday evening the defendant made certain statements to Mr. Moore, in the presence of a Mr. Reuben, that bore on the case.  Mr. Moore had spoken to him (plaintiff) about them.

 Mr. Wainewright was perfectly willing that the case should stand over for the evidence of Mr. Moore and Mr. Reuben.  He was anxious that no impression whatever should be produced that any evidence that the plaintiff could produce was in any way kept out of Court.

  The further hearing of the case was then adjourned till 10 a.m. on the 30th.

30th June, 1881.

  The hearing of this case was resumed from Tuesday morning, when it was adjourned for the production of further evidence in support of the plaintiff's case.

  The first witness called was Louis Moore, who, after being sworn according to the proper form, said, addressing the Court - I think your Honour, that it is a great shame that my name should have got mixed up in such a disreputable case.

  His Honour - Perhaps so, but I don't think it is any harder on you than it is on the Court.

  Plaintiff here seemed to be about to address the witness, when Mr. Moore said - Your Honour, before you allow that man to address me, will you please inform me if this statement, published in the Shanghai Mercury of the 28th inst., is correct? The extract was as follows:

  "Plaintiff said that the defendant went to Mr. L. Moore on Saturday, after the case was adjourned, and told him that he had not paid for board and lodging for his wife at Siccawei, and he said her services there were placed against her board.  Defendant had said this to Mr. Moore in presence of Mr. Reuben, and he (plaintiff) would like to call these gentlemen."

  He handed a copy of the journal to His Honour, who replied that the paragraph was a substantially correct report of what the plaintiff had said.

  Mr. Moore - Well, I emphatically deny both the assertions contained in it.  In the first place, the word "board" never escaped my lips.  In the second place the plaintiff alluded Mr. Ezekiel, not to Mr. Reuben.  When the defendant and I had our conversation, no one was present but he and I.  I was in the Nanking Road about 5 or 5.15 p.m. on Saturday, sand the defendant spoke to me about the Jewish oath, and I told him I could not allow anything of the kind that had been suggested.  Defendant said he was prepared to swear that he did not owe the plaintiff a cash; that everything had been already settled between them, and that his wife had done work for the plaintiff at Siccawei.  In regard to the oath, I am a member of the Committee of the Synagogue, and would certainly not allow the matter to be brought forward there.  These men, though nominally Jews, do not believe in any of rules or rites of our religion.  They are not members of the congregation, nor do they subscribe to the Synagogue.  They never worship there; although perhaps the defendant might go perhaps once a year, on the Day of Atonement.  The oath spoken of is never taken with regard to money matters at all, and only in cases where the Rabbis cannot effect a satisfactory settlement.  Again, a great proportion of the Jews who reside here are Spanish Jews, and have no such oath as far as I can understand.  They may have had years ago; indeed, I believe there is a reference to it in their books, but it has now been done away with.

  In answer to plaintiff, witness said - My opinion at the time was that this claim for board was not paid, but I do not know anything whatever about it.

  The plaintiff had procured the attendance of one of his Japanese barbers to prove the frequency of the occasions on which the defendant had enjoyed the performance of "tonsorial operations," but his Honour said that it would not be necessary to call him.

  Plaintiff now handed in a letter from the offices of the Mitsu Bishi Steamship Company to prove that when the defendant was in Japan, he was only away from Shanghai fourteen days.

  Mr. Wainewright objected to the letter being put in as evidence, as there was no opportunity of finding out what Mr. Silva knew about the matter, and, addressing the Court, said that this case had, of course, been made difficult owing to the imperfect and loose way of keeping the books that had existed in the office of M. Robins and Co., a circumstance that he thought was amply shown by what Mr. Biellfeld had stated.  That gentleman had considered the book-keeping of the firm to have been so bad that he had ordered the book-keeper, who was responsible for this state of things, to pay 75 per cent of the costs of the arbitration.

  His Honour did not think that had been shown in evidence.

  Mr. Wainewright - Yes, in the tenth Article of the award.  If you remember, Mr. Bielffeld was unwilling to state why Mr. Gronner should pay such a large proportion of the expense, but there is a fair inference that the reason was to be found in the fact that he was dissatisfied with the book-keeping.  The evidence of neither the plaintiff nor the defendant had, probably owing to a general oversight, been given on oath administered in strict accordance with the form usually observed in the case of Jews, but the learned Counsel did not suppose that mattered much, or, indeed, whether the parties had been s worn according to that or any other form at all.  One party stated that the money was still due, and the other was equally positive that the money in dispute had been paid. In the absence of corroborative evidence, the surrounding circumstances must be taken into consideration, and if the case were looked at so, the defendant's story, he submitted, was by far the most probable of the two. The plaintiff simply asserted that the board and lodging had been supplied, and the bills run up, the cigars left with defendant, and so on, and that the bill for the whole had not been paid.  Now as the Court was well aware, a reference had been made by the plaintiff, the defendant, and Mr. Gronner, to an arbitrator to settle up the affairs in the firm of which they constituted the partners, and whatever might be thought of the construction of the Agreement of Reference by a lawyer, there could be little doubt that the parties and the arbitrator understood at the time that all claims and disputes were to be settled.  Now, although there were three men named, there were only really two partners, the plaintiff and Gronner being on one side, and the defendant on the other.  No claims as between plaintiff and Gronner were put in as against each other, these individuals not being in any way separated nor about to be.  They had no object in bringing forward any private accounts there might be between them.  The Agreement of Reference was doubtless wide enough to include private accounts, and private accounts were certainly introduced, as had been testified to by the plaintiff and also by Mr. Bielfeld.  Among the private accounts puts before the arbitrator was one for board similar to that now being sued for, for the month of March, presumably of this year.

  Mr. Wainewright contended that this furnished strong evidence that the plaintiff as well as the others and the arbitrator thought that all matters were to be referred to Mr. Bielfeld.  If this were a just claim, why had not the plaintiff put it inxxx  He had himself offered the explanation that he had withheld it because he thought it would be disallowed. Doubtless because he felt it to be unjust.  As far as he could judge the plaintiff and Gronner were dissatisfied with the result of the arbitration, and so put their heads together and said, "We pretended that we only had $490 off when we should have had $2,200, and got bit rather badly in the arbitration; we must get more money out of Robins in some way, we have got back the receipt for some of the money he paid us, and we will now spite him by suing for it as he has no proof of payment." So it would seem that they had trumped up this claim and put it in now.  The position taken by the plaintiff was hardly, he thought, one that would be taken by a fair claimant suing for a sum of money that was justly due to him.  

  There was also to be considered the strongly reiterated evidence of the arbitrator himself, who said that he had frequently asked the plaintiff if he had any further claims against Robins, and had been answered in the negative.  After the arbitration had finished, however, this claim was put in.  The evidence of the arbitrator was sufficient of itself to put the plaintiff out of Court.  The matter of the alleged abstraction of the receipt was also important, and Mr. Wainewright detailed the circumstances as mentioned in our previous report.  Of the two stories, that of the defendant was the most circumstantial and contained nothing improbable or inconsistent.  Mr. Wainewright also referred to the unwillingness displayed by the plaintiff to produce his books, and to his having at last only produced what was called a "cash-book" and having created the impression that there were no others, when there were three other books in existence belonging to M. Robins and Co. He (Mr. Wainewright) had found out this latter circumstance from Mr. Biellfeld and Mr. Amelunxen.  After these books had been produced, it was not surprising to find the words "for furniture" inserted after the entry referring to the $469.40.  It was not at all improbable, he thought, that they had been inserted since the institution of the suit.  The entry did not specify anything further about the payment than was implied by those two words.  It was worthy of note, too, that no attempt had been made by the plaintiff to show what the various items were that were settled for by this sum.  Defendant had admitted that he had owed for some furniture, but not to anything like that amount.  Then cigars were not worth talking about.  It was highly improbable that the plaintiff would leave a box of cigars with defendant in Egypt to be sold on commission, while the story of the latter was nothing more than could naturally have been expected to occur.  Nor was it necessary to lay any stress whatever on Gronner's testimony that he heard the defendant at different times promise to pay for these cigars.  The plaintiff had also made a claim for "tonsorial operations" - a magnificent phrase - by which Mr. Wainewright understood that hair-cutting and shaving were described.   It certainly seemed to him unlikely that the defendant would make a special contract with his partner for these, although Gronner, who was carrying on business elsewhere, was quite ready to sear to the contract.  The defendant said that when he got shaved or had his hair cur, he paid for it at the time.  As to the evidence that the plaintiff had got out of Mr. Moore, that was simply in favour of the defendant, who has told that witness just what he (defendant) had previously told the Court.  That was, that he did not owe the money sued for, and that his wife had performed services for the plaintiff.  As to the flourish about the oath and the theatrical manner in which the defendant had been challenged to go to the Synagogue, it had doubtless been a piece of bravado.  It was probable that the plaintiff knew that the ceremony could not be performed from the first, as he was not considered a member of the Church.  The defendant, however, took the matter seriously, and tried to be submitted to the test.  He did not think that the challenge indicated any truth or justice in the claim, or that any belief in its fairness was involved.   The learned Counsel thought that all the surrounding circumstances were in favour of the defendant's statements as to what had occurred, and he should ask the Court to dismiss the suit and order the plaintiff to pay the costs.

  The plaintiff - Mr. Robins has sworn that he has paid me and that he had a receipt.  He says I stole it.  It was not likely he would leave it throwing about.  He says he was naturalized in the State of New York, and that he was a pedlar there.  It is on the record of the Court that he has sworn he was an interpreter at Boston, Massachusetts.  He says that he paid for being shaved every time he had it done, and he used to come in fifteen or sixteen times in a month.  All I can say is that he has sworn falsely in this Court.  Mr. Moore said he did not think defendant had paid my bill.  My intention was not to charge defendant for the shaving at all, but as he has done me some bad tricks I do not wish to give him the money.

  Mr. Wainewright - You did not mean to charge him, although you had a contract.  That is pretty good.

  Plaintiff - Defendant will swear to anything.  Then entry of $460 does not show the separate items for which it was paid.  Mr. Moore said that defendant told him his wife had worked for it.

  Mr. Wainewright - I would point out to your Honour that this a distinct mis-statement of what Mr. Moore said.

  His Honour - Yes.

  Plaintiff - Is it likely he would take his wife from a saloon on the Yang-king-pang to make her  a barmaid at Siccawei?  Before I left Shanghai Mr. Gronner fixed up a room in the French Concession, and while defendant was away he also furnished a dining room, two bedrooms, and a verandah.  He could not have done all that with $65.  He also paid several store bills for her while defendant was away.

  His Honour. - Have you any more to say?

  Plaintiff - No.

  His Honour - Then I will examine the Act of Reference and other documents connected with the case, and deliver judgment tomorrow morning at ten o'clock.

...

1 July.

Judgment was given this morning, plaintiff being awarded $258, and the costs of the suit.

 

Source: North China Herald, 8 July 1881
IN THE U.S. COURT FOR THE CONSULAR DISTRICT OF SHANGHAI.
Shanghai, 1st July.
Before O. N. DENNY, Esq., Consul-General, Acting Judicially.
  G. POLITE v. MORITZ ROBINS.
  In this case His Honour this morning delivered the following
Judgment.
  George Polite brings suit to recover of M. Robins certain sums of money alleged to be due for board, lodging, cigars, and services as a barber, rendered the defendant between October, 1878, and June 1st, 1881.  The defendant by his answer denies that he is indebted to the plaintiff in any sum of money whatever; that by an agreement in writing, dated the 10th day pf May last, signed by the plaintiff, the defendant, and one Adolphus Gronner, all disputes and differences, including all matters of account then existing between the said parties, or any of them, was referred to an arbitrator, who has made and published his award; that according to the  said agreement the plaintiff is now estopped from, recovering the amounts here sued for, as the claims should have been presented to the arbitrator for final adjustment.  The agreement alluded to is between Moritz Robins, Abram Hoeflich, and Adolphus Gronner, reciting that "whereas the said parties hereto have for some time past carried on business in partnership together under the provisio0ns of a deed made between them, and dated the first day of October, one thousand eight hundred and seventy-nine; and whereas disputes and differences have arisen and are still subsisting between them, and they are desirous of dissolving their said partnership, and of settling their disputes and differences in manner hereinafter mentioned; now nit is hereby agreed," &c.  From this language it seems clear to me that the findings of the referee were only binding upon the parties in so far as they related to the concerns of the partnership, for it was the deed under which the firm had conducted its business that was to be set aside and the interests and liabilities of the respective members ascertained.  Hence it was incompetent for the referee to consider any matters which did not pertain to the dissolution of the firm and the adjustment of its accounts.  The plaintiff then has the right to recover from the defendant any sums of money which may be due on account of transactions independent of firm business.  The first part of the referee's report also shows that he thought at the time that he was only authorised to deal with partnership affairs. He says, "Whereas there were matters in difference between Moritz Robins, Abram Hoeflich and Adolphus Gronner, trading at the port of Shanghai under the firm and style of M. Robins and Co., which matters in difference are submitted by the said parties to my final determination and decision, &c."
  From what I am able to gather from the books and papers which have been submitted in this case, I am of opinion that the items for board and lodging are proper charges, and have not been paid by the defendant; but considering the friendly and business relations which have heretofore existed between the parties, the item for occasional shaving and for cigars now and then should not be allowed.
  Judgment for the plaintiff in the sum of $258, with costs.

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