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Colonial Cases

Bidwell v. Helland, 1883

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Bidwell v. Helland

Danish Consular Court, Shanghai

Paterson, 18 January 1883

Source: North China Herald, 24 January 1883


DANISH CONSULAR COURT.
Shanghai, 18th January.
Before W. PATERSON, Esq., Acting Consul, and Messrs. A. KRAUSS and C. G. WARBURG, Assessors.
BIDWELL v. HELLAND (The Great Northern Telegraph Company.)
  Mr. Wainewright appeared for the plaintiff, and Mr. Henningsen represented Messrs. Bohr and Henningsen, agents of the Great Northern Telegraph Company.
  The petition of the plaintiff and the reply of the defendant were as follows:-
- The Plaintiff is a British subject, and is a merchant and commission agent, carrying on business at Shanghai in the Empire of China, and the defendant is a Danish subject, and is the General Agent for China and Japan of the Great Northern Telegraph Company whose business it is (amongst other things), to construct Electric Telegraph lines and to establish communication by means of Electric telegraphs.
- In the month of July 1880 the plaintiff, who was then in Tientsin, was consulted by an official [Sheng Xuan Huai} who was the agent in the matter of His Excellency Lu Hung-chang the Governor-General of the province of Chihli, with reference to the proposed construction of lines of Electric Telegraph between Tientsin and Peking and Shanghai, and the plaintiff thereupon communicated with Captain C. A. Schultz an officer of the said Great Northern Telegraph Company then in Tientsin and made proposals to him to the effect that upon the understanding that he, the plaintiff, should receive a reasonable commission from the  said company he the plaintiff would introduce the said C. A. Schultz as the agent of the said company to the said official and use his plaintiff's influence with a view to the said company obtaining a contract or contracts for the construction of the said telegraph lines or one of them and for the construction of other telegraph lines thereafter and after several communications written as well as verbal had passed between the plaintiff and the said C. A. Schultz the said C. A. Schultz on behalf of the said company of his the  plaintiff's terms which were that he the plaintiff should be paid by the said company at the rate of five per centum upon the cost of construction of the telegraph lines which should thereafter be constructed by the said Company in China.
- Relying upon the acceptance of the said terms as mentioned in the last preceding paragraph the plaintiff on the 17th day of the same month of July accompanied the said C. A. Schultxxx to the said official and introduced to the said official the said C. A. Schultz as the Agent of the said company and thereupon the matter of the construction of telegraph lines in China was discussed between the said official and the said C. A. Schultz and the plaintiff.
- In consequence of the introduction mentioned in the last preceding paragraph the said company have made with Chinese officials a contract for the construction of and they have under such contracts or contracts constructed an Electric Telegraph line between Tientsin and Shanghai and they have received divers large sums of money in respect and as the cost of such construction and they may have made or may make other contracts for the construction of other telegraph lines in China and they may have received or may hereafter receive sums of money in respect thereof.
- In addition to the acceptance of the plaintiff's terms as mentioned in the second paragraph of this petition the said terms were in the month of August 1880 assented to verbally by the defendant himself in the course of an interview with the plaintiff.
- By reason of the construction by the said Company of the said Telegraph lines between Tientsin and Shanghai and the payment to the said Company of the cost thereof the said commission upon such costs has become due and payable by the defendant on behalf of the said Company to the plaintiff and the plaintiff has applied to the defendant for payment thereof but no part of the said commission has been paid.
The plaintiff therefore prays:-
- That an enquiry may be held under the direction of this Honorable Court as to what sum or sums of money have been received by the said Great Northern Telegraph Company since the 15th of July 1880 for the construction of Telegraph Lines in China.
- That the defendant as such agent as aforesaid may be ordered to pay to the plaintiff a sum equal to 5 Taels per one hundred Taels upon the total amount of the money so received together with interest upon such first mentioned sum from the date when the same ought to have been paid.
- That the defendant may be ordered to pay to the plaintiff his costs of this suit.
- That the plaintiff may have such further or other relief as the nature of the case may require.
  The answer to the said petition I, George Johan Helland say as follows:-
- Admitted the General Agent for China and Japan of the Great Northern Telegraph Company which is a Danish Company and consequently under the jurisdiction of this Court and amenable to Danish law, but must point out that individually I am not a Danish subject.
- The correctness of the plaintiff's statement is denied.  In the month of July, 1880, the plaintiff being then in Tientsin, privately informed Mr. C. A. Schultz, an officer of the Great Northern Telegraph Company, that a certain Chinese official being desirous of communicating with him (Schultz) about Telegraph matters, he the plaintiff would be glad to introduce the parties to one another, which he subsequently did.
  Denied that the said official was the Agent in the matter of His Excellency Li Hung-chang the Governor-General of the Province of Chihli with reference to the proposed construction of lines of Electric Telegraph between Tientsin and Peking and between Tientsin and Shanghai.
  Denied that the plaintiff made proposals to Mr. Schultz, which I could assent to or ever agree to - his demands being to the effect that upon the understanding that he, the plaintiff, should receive a reasonable commission from the Great Northern Telegraph Company, he - the plaintiff - would introduce the said C. A. Schultz as the Agent of the s aid Company to the said Official and use his the plaintiff's influence with a view to the said Company obtaining a Contract or Contracts for the construction of the  said Telegraph lines or one of them and for the construction of other Telegraph lines thereafter.
  Denied that the plaintiff had or used any influence with the said Chinese Official or with any other person or persons for the said object.
  Denied that C. A. Schultz at that or any other time on behalf of the Great Northern Telegraph Company signified his willingness, directly or indirectly, verbally or in writing, to accept the plaintiff's terms: That he the plaintiff should be paid by the said Company commission at the rate of five per centum upon the cost of construction of the Telegraph lines, which should thereafter be constructed by the  said Company In China,  or that any remuneration whatever should become due from the Company to the plaintiff.
  But even had any such undertaking or agreement, as  claimed by the plaintiff and the existence of which is denied by defendant been assented to by Mr. C. A. Schultz, it would in no wise have been binding on the Great Northern Telegraph Company, Mr. Schultz being, as the plaintiff was fully aware, but a subordinate officer of the Company and neither, in consequence of his position as the Company's Agent in Tientsin nor by special delegation authorized to make contracts of this nature the magnitude and importance would of course be beyond his or any other subordinate officer's authority and rest solely with the Company's General Agent at Shanghai.
- Denied except so far as concerns the act of introduction of Mr. C. A. Schultz to the said Chinese Official, which has already been explained under 2.
- Denied as far as concerns the consequence of the introduction mentioned in the last preceding paragraph.
- Denied in toto.
On the contrary, repeated demands made verbally and in writing by the plaintiff to the defendant and during his absence to the Company's Acting General Agent in Shanghai have invariably been refused as totally unwarranted and groundless.
- Denied that by reason of the construction by the said Company of the said Telegraph line between Tientsin and Shanghai and of the payment of the said Company of the cost thereof, the said commission or any commission whatever, upon such cost has become due and payable by the defendant on behalf of the said company to the plaintiff.
  The defendant therefore prays:-
- That the plaintiff be non-suited.
- That the plaintiff be ordered to pay the costs of the suit, and
- That the defendant may have such further or other relief as the nature of the case may require.
  Mr. Wainewright said he was compelled to ask the Court to allow the case to stand over for a week, as a very important witness in the case, a Chinese official was not present. This witness had promised to attend, and an official letter had been addressed to him, but this morning it had appeared that he declined to come. The time had been too short for them to see the witness and ascertain what was his objection to attending, and he had to ask that the case might be adjourned in order that he might see the official, and give him notice to attend.  Of course if he could ask the Court to order the witness to attend, he would do so, but he was afraid he could not do this.
  The Consul - No.
  Mr. Helland intimated that he should not be in Shanghai next week, and said if the plaintiff had anything to say beyond what was in the petition he would reply to it at once. He was no longer the defendant in the case, Messrs. Bohr and Henningsen having taken his place as agents of the Great Northern Telegraph Company.
  Mr. Wainewright - I am perfectly willing that Mr. Helland's evidence should be taken now.
  The Consul - I think it would be well to take Mr. Helland's evidence, and then adjourn the case for  a week.
 Mr. Helland - The only evidence I can give is contained in the answer to the petition.  There is only one thing I can personally testify to. Mr. Bidwell says I verbally agreed to his terms.  I deny  that.
  Mr. Wainewright - (interrupting):- I think if Mr. Helland is going to give evidence he had better be sworn first,
  Mr. Henningsen - I suppose Mr. Helland appears as a witness. He is no longer the defendant.  We, as the general agents of the Great Northern Telegraphic Company, appear as defendants.
  Mr. Helland was then examined by Mr. Wainewright. He said: In July 1880 I was general agent of the Great Northern Telegraph Company. Captain, at that time Lieutenant, Schultz was then Secretary to the Company.  He was in Tientsin in July 1880, I believe, but I cannot recollect the exact date. I believe he was there on the Company's business.  I received several communications from him from Tientsin on the subject of tenders for the construction of telegraphs; among them, I believe, one relating to the plaintiff, but the papers belonging to the Company are no longer in my custody.  I have given them up.  The letter produced is in Mr. Schultz's handwriting.
  Mr. Wainewright reads the letter which was as follows:-
Tientsin. 15th July.
 My dear Bidwell, - As I told you this morning, Mr. Helland has not seen his way to give you a reply to certain proposals made through me, before he has been made acquainted with the name of the influential and wealthy Chinese gentleman who is going to furnish half the capital, and before he knows on what conditions that gentleman wished to make the enterprise on joint account with the Company.  Besides this, Mr. Helland desires to know what you think a fair commission on all the lines that may be built hereafter.
Yours truly, - C.A. Schultz.
  Mr. Helland - The proposal came to me in such a shape that I could not agree to it.  I never received any proposal from Mr. Bidwell through Mr. Schultz that I could agree to.
  Mr. Wainewright - But it is true that you desired Mr. Schultz to ascertain what Mr. Bidwell's commission was to be?
  I say in that letter that I cannot agree to the proposal of Mr. Bidwell before knowing something further as to the commission.
  But I understand that Mr. Bidwell demanded what you styled a reasonable commission, and you would not consent to give him a reasonable commission?
  The whole claim is based upon this introduction, and the introduction amounted to nothing.
  You say he proposed a commission, and you could not agree to it?
  Not in the terms which Mr. Bidwell demanded.
 But Mr. Schultz says you "wish to see what Mr. Bidwell thinks a fair commission."
  That was only a question.  What I did not understand was why, up to this time, the 15th July, Mr. Bidwell did not name a sum.  He named a sum subsequently.
  I do not understand what it was that you objected to, when you had no proposal before you.  You apparently asked Mr. Schultz to ascertain what Mr. Bidwell thought a fair commission.  How could you reject anything when you did not know what was demanded?
  I cannot say anything else than what I state in the petition. I have been served with a notice to produce books, but they are no longer in my custody.

  Now Mr. Helland, what was it that Mr. Schultz wrote to you about Mr. Bidwell?
  For introducing me to this man, Mr. Bidwell expected a commission, and I wrote back that I did not see my way clear to agree to his proposal that he should have a commission.  I do not deny that the introduction took place; but I deny that the introduction was the means of getting the contract.
  Was the contract signed?
  Yes; it was signed six months afterwards.  It was nothing to do with Mr. Bidwell's friend.  I think it was in the month of December.
  Have you received any letters from Mr. Bidwell that he wrote to you after his return to Shanghai?
  Yes; one.  I have not brought it because it is no longer in my possession.  It was a long description of the utility of iron poles.  I received no other letter from him referring to the Tientsin case.
  When did Mr. Schultz return from Tientsin?  Did he remain there till the contract was signed?
  No; I think he arrived here in October.
  Was he there all the time on this business of the contract for the line between Shanghai and Tientsin?
  Not altogether.
  That is all I have to ask you.
  Mr. Henningsen. - I should like to ask a few questions.  I want you more clearly to define the position of Mr. Schultz. Secretaries in some companies occupy different positions from those in other companies.  Was Mr. Schultz a subordinate officer in the company.
  Mr. Helland - Yes.
  Would he be entitled to make any contract whatsoever without reference to the general agent?
  No; not without special authority.
  Mr. Wainewright - I should like, before the Court adjourns, to ask whether, as a matter of form, I am to revive this suit against the present agents of the company - to amend the petition inserting their names in the place of that of Mr. Helland, or to leave it as it now is.
  The Consul (addressing Mr. Henningsen): Are you prepared to take up Mr. Helland's suit?
  Mr. Henningsen - If nothing new is to be introduced.
 Mr. Wainewright - We stand by the petition, certainly.
  Mr. Henningsen - Then we are willing to take up Mr. Helland's case.  We do not protest against the Court adjourning this time, but we give notice that a further adjournment will be much against our interest.  The plaintiff may keep the case on month after month.
  The Consul - I understand the Court is adjourned simply because the important witness could not be produced today.  If he cannot be produced next week I presume you will be prepared to go on without him.
  The Court then adjourned.

 

Source: North China Herald, 31 January 1883


LAW REPORTS
DANISH CONSULAR COURT.
Shanghai, 25th January.
Before W. PATERSON, Esq., Acting Consul, and Messrs. A. KRAUSS and C. G. WARBURG, Assessors.
BIDWELL v. THE GREAT NORTHERN TELEGRAPH COMPANY.
  Mr. Wainewright appeared for the plaintiff, and Messrs. Bohr and Henningsen, Agents of the Great Northern Telegraph Company appeared as defendants.
  The hearing of the case had been adjourned from the 18th inst.  The pleadings appeared in our issue of the 19th inst.  The plaintiff claimed a commission of 5 per cent on the amount received by the defendants since July, 1880, for the construction of telegraph lines in China, alleging that the Company had obtained the contract for the construction of these lines through his instrumentality, and that they had, through their agent, agreed to pay him the commission claimed.
  Mr. Wainewright said he took it for granted that the Assessors had read the petition.  He did not know whether they would like to hear it again.  It was not read at the last hearing.
  The Court decided that the petition should be read.
  Mr. Wainewright - This is a claim for commission which the plaintiff contends that he earned by introducing in 1880 the agent in Tientsin of the Great Northern Telegraph Company to an official of the Chinese Government, who, at the time, was entrusted with the duty of making an enquiry and paving the way for the construction of a telegraphic line between Tientsin and Peking, and one between Tientsin and Shanghai.  The plaintiff contends that the introduction was the ultimate cause of the Company getting the contract for the construction of the line.
  Mr. Wainewright then read the petition of the plaintiff and the counter petition of the defendants.  He said: These are the only pleadings in this suit.  The case as presented by them is a very simple one.  The plaintiff avers - and it is not denied - that he introduced Mr. Schultz to a certain Chinese official, with a view to their negociating, or making arrangements for, the construction of one or more lines of telegraphs.  The fact that the Company have constructed the lines for the Chinese, and that they have been paid for, is not denied.  The only question for the Court to determine is whether the introduction by the plaintiff of Mr. Schultz, the agent of the company to this Chinese official Shen Tao-tai, was really of value to the Great Northern Telegraph Company, and therefore entitled the plaintiff to the remuneration which he himself named to the Company, and which I shall show the Company have never repudiated.  The evidence consists of the letters which have passed between Lieut. Schultz and the plaintiff, and the evidence of the plaintiff and an employee of his who was present at the interviews between him and Mr. Schultz and the Chinese official, and there may perhaps be further evidence the precise nature of which I am not at present in a position to state.  As regards the position of Mr. Schultz, it will be observed that the answer demies that he was an agent of the Company competent to make such arrangements; but the correspondence will show that - unless he was acting a part which there is no reason to believe he was acting - he was the authorized agent of the Great Northern Telegraph Company in the matter.  He held a high position in the Company -Mr. Helland admitted last week that he was the Secretary - and there is no doubt he was their agent.  It cannot for a moment be permitted that the Company should take advantage of his powers being to a certain extent limited, when they made use of him to get the services of the plaintiff, and put him in such a position that he could promise the plaintiff remuneration for those services.  I do not propose to comment on the petition and answer now, because they will be better commented upon when the evidence has been taken.  I shall content myself with calling the plaintiff, and he will state the facts and produce the documents on which the case rests.
  As regards the law of the case it will be unnecessary to trouble you at any great length, because it rests upon the simple and familiar proposition that where an agent is employed and there is an agreement either expressed or implied that he shall have a commission when he has done his work, that commission shall be payable to him.  The commission is calculated upon the benefit derived, and here it is contended that the benefit was considerable.  The plaintiff did what he undertook.  The only question for you to consider is whether what he did led to a result which benefited the Great Northern Telegraph Company.  The law is very simple, and it will be familiar to you as merchants.  I will call on Mr. Bidwell to state his case.
  The Plaintiff was then sworn.
Mr.  Wainewright - You are a commission agent in Shanghai?
  Mr. Bidwell - Yes.
  In the summer of 1880 were you at Tientsin?  - Yes.
  Do you recollect when you went there? - In June, 1880.
  You know a Chinese official known as Shen Tao-tai? - I do; he is an old friend of mine.  I have known him for many years.
  Do you also know Lieut. Schultz? - I do.
  Was he at Tientsin when you introduced him to Shen Tai-tai? - Yes.
  Mr. Wainewright - Perhaps you had better just state what occurred between you and Mr. Schultz before the introduction took place.
  Plaintiff - I called on Shen Tao-tai on my own business, and he asked if I could give a tender for a telegraph line between Tientsin and Peking as well as between Tientsin and Shanghai.  I told him that there happened to be at the time an agent of the Great Northern Telegraph Company in Tientsin, and that I thought in the interest of Government it would be better to introduce this agent to him and get the business done through the Great Northern Company, because then if anything went wrong they could come down on this company at Shanghai.
  Did he tell you on whose behalf he was acting? -He always spoke of himself as representing the Viceroy.  He said he did not know the company except by name, and he did not know the agent.  He said if it was a good company he should be very glad of an introduction.
  Did he say anything to you on the subject of any advantage to yourself? - Yes; he said, "You must remember that we, as purchasers, cannot pay you any commission.  You must get your commission out of the company."  I assented to this.  I went back to the Settlement to Lieut. Schultz.  He said he had been at Tientsin for a long time looking after business, but he was unable to find out that any such thing was being considered.  I said, "Well, if I can get you the business will you give me a commission?" He said, "Most certainly."  I asked him to write to Mr. Helland and ask him if he would take up the business, and he said he would.  Before Mr. Helland's answer came back we had several interviews on the subject.
  Did he inform you whether the company were desirous of that kind of business?  He said it was a God-send to the company, or words  to that effect, and that it was exactly what they wanted.
  Did you receive this letter? - I did.  It is in the handwriting of Mr. Schultz.
  Mr. Wainewright read the letter, which was as follows:-
Tientsin, 6th July, 1880.
  My Dear Bidwell, - As far as I can make out -but mind it is only roughly estimated and is not intended to be authentic in any way, - the line in  question might cost about $17,000.  In this sum I have included cost of two stations at $1,000 each and of 4 watch-towers at $300 each; these might however be got in  a cheaper way; but I have not put anything down for wages of coolies and of two foreign engineers, as these will depend upon the time used for the construction of the line.
Yours truly, C. A. Schultz.
  Plaintiff - That information I gave to Shen Tao-tai before I introduced Mr. Schultz to him.
  You communicated the contents of that letter to Shen? - I did, I showed him the letter and explained its contents.
  Do you recollect anything further that took place when you showed him that letter? - He said he would submit the prices to the Viceroy and would let me know, and tell me more about the business of the Shanghai and Tientsin line.
  Was the Viceroy then in Tientsin? - Yes.
  What happened next? - I waited for an answer from Mr. Helland.
  Did you hear that any answer came? - Yes, Mr. Schultz told me he had got an answer; he told me that Mr. Helland was willing to take up the matter provided that it was all right, and that he had asked what commission I wanted.  I asked Mr. Schultz to put it in black and white, and he sent me this letter.  It is the letter which was read when Mr. Helland was examined.
  Mr. Wainewrignt read the letter which was as follows:-
Tientsin, 15th July, 1880.
  My dear Bidwell, - As I told you this morning, Mr. Helland does not see his way to give you any reply to certain proposals made through me, before he has been made acquainted with the name of the influential and wealthy Chinese gentleman who is going to furnish half the capital, and before he knows on what condition that gentleman wishes to make the enterprise on joint account with the company.  Besides this Mr. Helland desires to k now what you think a fair commission on all the lines that may be built hereafter.
Yours truly, (Signed) C. A. Schultz.
What is the arrangement referred to? Just state shortly the nature of the arrangement. Was the line to be constructed on joint account? - It was originally intended to construct the line with some Chinese gentlemen on joint account with the company, but that afterwards fell through, and the arrangement was made a Government affair.
  Did you reply to that letter? -I did.
  Mr. Wainewright then read a copy of the plaintiff's reply, which was as follows:-
Tientsin, 15th July, 180
My dear Schultz - Thanks for you note of today.  I have already given you the name of the Chinese official whom I mentioned to you as the "influential and wealthy Chinese gentleman"  who will be the means by which one half of the capital for the telegraphs in China will be contributed, and I shall be happy to introduce you to him as soon as possible, and then you can personally arrange all matters of detail between yourselves; and if I can be of further use to you I shall always be glad to do my best towards definitely arranging this most necessary work for China.
  My commission will be 5% (Five per cent) on the cost of construction of the lines in China.
Yours truly, H.S. Bidwell. .  . .  
  Mr. Wainewright - Did you get any answer to that? - Yes, Mr. Schultz wrote on a piece of paper "O.K." and put his initials to it.  This is the chit I received:-
Lieut. C. A. Schultz,
                                       I note.
15.7.80              O.K., C. A. S.
  What happened next?- I wrote a letter to Mr. Schultz offering to introduce  him to Shen.  I afterwards wrote saying I would introduce him.  I received this letter from Mr. Schultz on the 17th July.
Mr. Wainewright read the letter, which was as follows:-
Tientsin, 178th July, 1880.
My dear Bidwell, - Please let me know by bearer at what time we shall have to leave the settlement for the city.  I shall come round to your place in my chair at the time you may fix.
Yours truly, C. A. Schultz.
  In the interval between the 15th and 17th July, had you seen Shen? - I had, and I told him I had made a satisfactory arrangement about the introduction and that I should be glad to introduce Mr. Schultz at his convenience.
  Did you see Mr. Schultz during the interval? - Yes; several times.
 Did he say anything more about remuneration? - Yes; he said that had been agreed upon as satisfactory and he said that it would be the best work they had done in China, if the thing came off.  He said it was the greatest thing possible for the Great Northern Telegraph Company - being a tremendous feeder for their other lines.  He was very proud of it at the time.
  Did you go and see Shen Tao-tai with Lieut. Schultz - I did.  After the introduction we talked generally upon telegraphs and Shen Tao-tai asked Mr. Schultz whether the company was in a position to construct long lines, and he said "Yes."  Shen talked openly and freely to Schultz and said that the Viceroy wanted to do this business, and that he would use his influence to secure the business for the company. He said he would secure it.  Previous to my introduction Mr. Schultz never knew Shen Tao-tai or knew that the matter was being considered.
  Did Shen Tao-tai say anything to Mr. Schultz about your commission? - He asked Mr. Schultz who was to pay the commission, and Mr. Schultz said the Company.  He distinctly said that.
  Is there anything else with regard to that interview? - It was a very successful interview.  We were very pleased with it, and we thought we had done a good stroke of business.
  Did you do anything else in the matter? - No.  I asked both parties if I could be of any further service, and they said no, and thanked me for the introduction.  Mr. Schultz spoke Chinese very well.
  When did you return to Shanghai? - I think in August.
  Did you have any communication with Mr. Helland afterwards? - I told what had been done up north, and he said it had all been reported to him by Mr. Schultz. I asked him about the commission, and he said it would be all right when the thing was completed, but they were not going to pay it until it was completed.
  Mr. Wainewright pointed out that on Mr. Schultz's letter of the 15th July was the following note:
Shanghai, 12th August, 1880
 Saw Helland who said he would take up the pidgin and give me my commission (of 5 per cent.) as soon as an edict was obtained.  H.S.B.
  Did you make that note at the time? - Yes.
 What more dld you know about the course of the negociations? - Mr. Helland was my chief informant.  He said that the thing was dragging on very slowly, and a lot of people were trying to capsize the contract, but he thought they would succeed eventually.
  What further negociations have taken place about your commission.  Have you applied for payment? - Several times, but I have not received any of it.
  Were there any letters with reference to this matter besides those which you have produced? -No, not to my knowledge.
  Now, with reference to Shen Taoi-tai, have you made application to him to come here to give evidence? - I have.  I asked him if he knew that if it had not been for me he would never have known the company, and I begged him to come and support me.
  The Consul - When did you write that?
    Plaintiff - On Friday - the day after the last hearing; and before the previous hearing I wrote to him several times.
  The Consul - Are you certain that he received it? I understand that he came here yesterday and said he had received no communication since last Thursday.
  intiff - The man will be here who took it.
  Mr. Wainewright - Has any friend of yours been to him on the subject?
  Plaintiff - Not since Friday, I think.
  Not Mr. Tong Mow-chee? - Yes, I think he has.
  You have not had any answer from, him? - No, but he communicated to my interpreter what he had done in the meantime.  That is, he had written to the Great Northern Telegraph Company, and had also seen Mr. Paterson.
  Mr. Wainewright -  That is all I have to ask you.
  Cross-examined -
  Mr. Henningsen - Do you understand Chinese?
  Plaintiff - No.
  Then were you able to follow the conversation at the interview when the introduction took place? - I had an interpreter present who explained to me all that was said.
  YANG NGO-FUNG was then called, Mr. Tong Mow-chee acting as interpreter.  He said he was compradore to Mr. Bidwell, and in the fourth moon of 1880 he went with Mr. Bidwell to Tientsin.  Mr. Bidwell asked him to find out whether anything was being done about telegraphs, and finding that Shen Tao-tai had the matter in hand he went with Mr. Bidwell to see him. Mr. Bidwell asked witness to ask Shen whether the putting up the telegraphs was offered for tender.  Shen said that it was, and that he had already received notice from Mr. Schmidt that he was going to send a tender; and Shen said Mr. Bidwell had better get specifications and send in his tender at once. Mr. Bidwell said he had the plans and specifications, but the best way was to contract with the Great Northern Telegraph Company; they were a long -established company, and there was no fear of failure with them.  In reply, Shen said, "Why don't you take the contract yourself, and make something out of it, instead of giving the work to other people? Mr. Bidwell answered that he could make his commission out of giving the contract to some other person.  Shen Tao-tai told me that he did not know any people in the Great Northern Telegraph Company.  A week later Mr. Bidwell got Mr. Schultz to go with him.  At this interview, after some compliments had passed, Shen Tao-tai told Mr. Schultz that Mr. Schmidt offered to take the contract at fifty taels per li and asked him whether he could modify that price.  Mr. Schultz's answer was that the more they paid the more substantial work they could get, and he said he could not give a definite answer until he had been to Shanghai and worked out the calculations.
  Mr. Wainewright - Was the Viceroy mentioned at all?
  Witness - Nothing was said about the Viceroy.  Shen Tao-tai asked me to ask Mr. Bidwell who was to pay the commission, and Mr. Bidwell said that the Great Northern Telegraph Company would pay that - there was no occasion for him to pay it. Shen then asked Mr. Schultz whether he was going to pay the commission, and he replied that he would not pay the commission, but the company would pay it.
  Mr. Wainewright - What line were they talking about?
  Witness -The line from Tientsin to Shanghai.
  Did they have any further interviews about the matter? - Yes; they had several other interviews, but that was the only time Mr. Schultz was present.
  Have you seen Shen Tao-tai this week, that is, since the last hearing of this case? - Yes, I went to ask him to come to this Court to explain the matter.  He said he would not come.  He had written letters to the Court and had also seen Mr. Tung Mow-chee on the subject, and therefore the people at the Court know all about it.  I gave him a Chinese letter, written in Mr. Bidwell's name, begging him to come to the Court. I handed it to him myself.
  Mr. Henningsen said he had no questions to put to this witness.
  The Consul - I suppose you understand Pidgin English?
  Witness - I can speak Pidgin English but not very good.
  Mr. Wainewright - I have now to ask the defendants whether they are prepared to produce the letters written from Tientsin by Lieut. Schultz to Mr. Helland, mentioning the terms proposed by Mr. Bidwell.  I have given them notice that we want them to produce all letters relating to the question that have passed between Lieut. Schultz and Mr. Helland.
 Mr. Henningsen - Before answering this question I may be allowed to notice what Mr. Wainewright says about law.  The matter is only amenable to Danish law, and we do not want English law applied to it.  Then as far as the notice served on us yesterday is concerned, we do not consider ourselves legally bound by it.  We think it is for the plaintiff to prove his case and not for us to help him.  But as we wish the case to be sifted to the bottom we are willing to accede to his request to a certain extent.  We do not want to present any accounts.
  Mr. Wainewright - I do not want any accounts.
  Mr. Henningsen - We have brought all the original letters between Schultz, Helland and Bidwell, but we do not feel justified in letting them pass out of our possession. I have therefore made copies of them and I have translated them into English.  Before I read the letters I beg the Court to take notice that these letters between Schultz and Helland are to be considered private communications.  We disclaim any responsibility for the writers except in so far as this case is concerned.
  Mr. Wainewright - I am simply asking you to let me see the letters.  It will be for me to say afterwards whether I desire to put them in as evidence.  The defendants are at liberty to put in any letters they think proper, but I am simply asking whether they will give me an opportunity of seeing them, and I will then judge whether I will make them evidence or whether I will leave it to Mr. Henningsen to make them evidence for the Company if he thinks fit.
  Mr. Henningsen read the notice served upon the defendants by which they were required to produce accounts and letters at the Court.
  Mr. Wainewright said the intention was not that all letters should be put in, but only such as he might call for.
  Mr. Henningsen intimated that if any parts of the letters were to be read, he should desire all the letters to be read.
  Mr. Wainewright - If you wish,  you have a perfect right to read them all.
  The Consul - It would make the case clearer, perhaps, if all the letters were read.
  Mr. Henningsen - I have personally gone over all the books and papers, and I am willing to declare on oath that these letters are all that relate to the matter received during, and subsequently to, the month of July.  The letters from Schultz to Helland are written in Danish.  I have translated them,.
  About a score of letters were then read by Mr. Henningsen.  Both parties, however, objected to their publication, and the Court decided not to allow copies to be taken.
  Mr. Henningsen - After reading the letters, said Shen Tao-tai was not an official of the Chinese Government at all.  He was a relieved official.  I want to repeat what I said before, that these letters are not intended for anybody else to see, and we regret anything that may be painful to the plaintiff.  I want to hand in these letters as evidence, and I want to know whether I am in order in making some remarks upon them now.
  Mr. Wainewright - I think you had better do that when my case is closed.
  The Consul - I think you had better wait.
  The letters were then handed in.
  Mr. Wainewright - I am going to make an application to the Court with reference to the witness Shen Tao-tai.  As the Court is aware, it is impossible to bring him here - I have done all I could; the Court has summoned him, or at least requested him to attend, and Mr. Bidwell has done all he could to induce him to attend.  Mr. Tung Mow-chee has seen him and has ascertained why he will not come.  I should like to call Mr. Tong Mow-che and ask him to say what passed between him and Shen on the subject.  I believe in any Court I would be allowed to tender his evidence for what it is worth.  I am aware that in an English Court of Law it would not strictly be evidence, but placed as we are here, being totally unable to compel the attendance of Shen Tao-tai, I will ask the Court to allow me to ask Mr. Tong Mow-chee what passed at his interview with Shen Tao-tai.
  The Consul - I do not see how I can possibly allow that. Second-hand evidence cannot be allowed.
  Mr. Wainewright - I am quite aware that it is not exactly evidence, but on the other hand the Court cannot enforce the attendance of this witness.
  The Consul - It is very important that he should attend, but I cannot take as evidence what passed between Tong Mow-chee and him.
  Mr. Wainewright - I think you might allow him to state it.  Of course it would be a question what worth should attach to it.  It is a great hardship to the plaintiff that he cannot have this evidence.
  The Consul - If the other side have no objection the Assessors think it might be taken.
  Mr. Henningsen - We have no objection.  Let the evidence be taken for what it is worth.
  Mr. Tong Mow-chee was then called.  He said - I saw Shen Tao-tai yesterday week - the day before the case first came on.  I found that he would not come to the Court because he was a friend to both parties, and because he did not like his name to be mixed up with the proceedings in any Court.  He was quite willing to come and see the Consul, or any person in a private interview, but not in a public Court.  I asked him what he thought of the case, and whether Mr. Bidwell was entitled to a commission, and whether the introduction led to the contract. He said it was clear enough that the negociation was commenced by himself with the Viceroy  as to the eventuality of the line and the desirability of its being executed at once.  While they were thinking over the matter Mr. Bidwell came with Mr. Schultz.  Mr. Bidwell was the first man who came with Mr. Schultz to see him.  I asked him what occurred in the interview between the introduction and the signing of the contract.  He said, "At the interview I told Mr. Schultz to get me some specifications, and Mr. Schultz's answer was that he would get them from the Company.  Four or five days afterwards I went down to ask Mr. Schultz why he delayed sending in the tender, and he would not give me a direct answer.  I thought it an attempt on Mr. Schultz's part to evade Mr. Bidwell's connection with the matter."  Shen said that when the contract was signed there were six persons present - himself amongst them - and he regretted that Mr. Bidwell did not come.  He could not say whether the contract was given to the Company through Mr. Bidwell or not - he could not decide upon the question; but he thought Mr. Bidwell was surely entitled to some commission, having made the introduction, and having been influential in obtaining the contract.
  Mr. Wainewright - Did you understand from him whether he saw the Viceroy on the matter after his interview with Mr. Schultz? - Yes, he said he saw him.
  Did you understand whether he had been commissioned by the Viceroy to inquire into the matter before he saw Mr. Bidwell? - Yes, he was asked to find out all about it.  Before Mr. Schultz saw him he had four interviews with the Viceroy about this line.
  Mr. Henningsen said he had no question to ask.
  Mr. Wainewright asked whether Mr. Bohr and Mr. Henningsen on their side had an evidence to bring forward.
  Mr. Henningsen - None at all, except these letters; but if you want to ask me any questions, I am quite willing to answer them.
  Mr. Wainewright - I have one or two questions.  I want to know whether you can tell me what position Shen Tao-tai holds in connection with the telegraph service?
  Mr. Henningsen explained that although Shen Tao-tai was connected with the telegraph service his position was somewhat difficult to define.
  The relations between Shen Tao-tai and the company are very friendly I believe? - Very friendly.
  I think you dined together the night before the last examination? - We did.  Shen Tao-tai gave a farewell dinner to Mr. Helland.
  Mr. Wainewright - I think that is all the evidence I can lay before you.  With regard to the course now to be pursued, I will leave that to the Court.  In an English Court when the defendant calls no witnesses the ordinary course would be for me to sum up, and then for him to reply.  If they called any evidence or put in any documents they would sum up the evidence and I should reply.  As regards going on and completing the case, in view of the fact that I have had no opportunity of looking at these letters I would ask that we do not go on with the case now.  Tomorrow morning we might finish.
  Mr. Henningsen consented to this arrangement, and the Court adjourned till next morning.
26th Jan.
  Mr. Wainewright - I think it will  be necessary that we define a little better than we did at the end of the proceedings yesterday, the course which the defendants propose to take in the matter as regards evidence.  I understood Mr. Henningsen to say that he proposed to rely upon the correspondence, but I should like to know whether he proposes to read as evidence what Mr. Helland said at the beginning of the hearing.
  Mer. Henningsen - We do make it evidence.
  Mr. Wainewight - Then I would suggest to the Court that, in default of any Danish law, the coursed taken in  English courts would be the proper one to follow, and that course is laid down in Rule 84 attached to the Order in Council.
  Having read the Rule referred to,
  Mr. Wainewright continued - I take it that I have at present heard nothing whatever from the other side further than the answer to the petition.  I understand that they propose to read as evidence Mr. Helland's examination in anticipation of the suit.  If they propose to use that as evidence they then comment on their evidence and on my evidence, and then I reply on the whole case.  That is how the matters stands if they bring forward any evidence.  As regards the letters they brought forward I am prepared to take them my evidence, with the exception of a few which I do not think relevant to the case.
  Mr. Wainewright then specified which were the letters he desired to put in as evidence.  He said there was one question arising out of the letters which he wished to ask Mr. Bidwell.
  Mr. Bidwell was accordingly recalled, and Mr. Wainewright pointed out that in a letter to Mr. Schultz from Mr. Helland, dated the 14th August, something was said about Mr. Bidwell's returning to Tientsin in reference to the matter of the telegraph line from Tientsin to Peking.  He asked Mr. Bidwell whether he did return to Tientsin.
  Mr. Bidwell - I did not return to Tientsin.  Mr. Helland told me several times that trouble was taking place at Tientsin and they could not successfully complete the negociations, and that I had perhaps better go there, but when I told him, I was ready to go he said "you had better not go; we are smoothing the way, and if you leave the matter to us I think it will be all right."
  Mr. Wainewright - When was that?
  Plaintiff - It might have been a week after my interview with Mr. Helland on the 14th August.  It was certainly within a month.
  Mr. Wainewright - That finishes my case.
  Mr. Henningsen - We have no evidence to give at all.  You have already put in Mr. Helland's evidence.
 Mr. Wainewright - No; that evidence was taken before the hearing of the case, to be used by either party when the case came on for hearing.  If the Company do not think fit to put in the evidence of their own General Agent, I am not going to put it in.
  Mr. Henningsen intimated that he understood Mr. Helland to be the plaintiff's witness.
  Mr. Wainewright said that was not so; he certainly should not have called his principal opponent.  Mr. Helland made a statement, and he (Mr. Wainewright) asked some questions on cross-examination.
  Mr. Henningsen - But what would be the consequence if we put it in as evidence?
  Mr. Wainewright - Then you will have to state your case to the Court.  There are other letters which I have not put in because I do not think them relevant, but you may think them relevant.  If you put these letters and Mr.  Hellands's examination in as evidence, then you will point your arguments for the defence, and I shall reply; if not, I sum up and you reply.
  The Consul (to Mr. Henningsen): If you put in evidence, then that gives Mr. Wainewright the right to the reply.  That is all the difference, I believe.
  Mr. Henningsen - In that case I put in Mr. Helland's evidence, and I comment now on the evidence.  In our opinion it has been clearly proved by the entire correspondence between Helland and Schultz, and particularly by Schultz's letter to Bidwell, and the latter's reply, both dated 1`5th July, 18890, as well as by the evidence of Helland and Bidwell himself, first, that Schultz had no power to conclude the arrangement proposed by Bidwell and submitted by Schultz to Helland,and that Schultz only acted as a subordinate, reporting all that took place between himself and Bidwell to the Company's General Agent, and communicating his replies to Bidwell; second, that Bidwell was fully aware of the subordinate position of Schultz, and of Helland being the principal in the matter; third, that the arrangement proposed by Bidwell, for the bringing about of which he asked 5 per cent commission, was clearly and distinctly understood both by Helland, Schultz and Bidwell himself to be that Shen Tao-tai, or whoever her represented, was to furnish one-half of the capital required for the projected line, the company the other half, and that Sheng and the company were to go joint accounts in the enterprise; that is, the line should be built and worked for their joint account.  Witness Schultz's first letter to Helland, dated 5/7 80, wherein he reports Bidwell's proposition for the first time; Helland's letter to Schultz, dated 10th July, 1880, wherein he says "I should like to know who is the wealthy, &c., &c." Further, Schultz's letter to Bidwell of 16th July, Bidwell's reply, and Schultz's report, dated the same day, wherein he informs Helland about what has taken place between himself and Bidwell.  Bidwell writes himself about the "Chinese gentleman who will be the means by which one half of the capital for Telegraphs in China will be collected" and he answers Schultz, when he is asked on what terms the Chinamen desired to go joint account with the Company, that he can only say "that gain and loss should be equally divided."  Nothing could be plainer than this.
  To Bidwell's letter of 2=5h July, Schultz gave no other reply but "O.K." in the chit book, which meant of course nothing but an acknowledgement of receipt of the information asked for by Helland and supplied through Schultz by Bidwell's letter.  It could not possibly mean an assent to an arrangement which Schultz had the same day clearly enough declared himself without power to conclude.
  Bidwell said himself in his evidence yesterday, that when he first mentioned the matter to Schultz, Schultz said he would inform Mr. Helland about it, and that he, Bidwell, then waited for Helland's reply, which only arrived asking for particulars, but which contained no acceptance whatever of Bidwell's terms.  If the Plaintiff does not prove that Mr. Helland, the Company's General Agent, accepted his terms as set forth in his letter of 215th July, and that he himself carried out his part of the proposed arrangement, that is "Procured the Company through his introduction of Mr. Schultz to Sheng Tao-tai one half interest in all telegraphs in China," then we hold that he has entirely failed to prove his case and to substantiate his petition.  As far as Mr. Helland's acceptance is concerned, it is clearly proved by all his letters to Schultz, especially his letter dated 14th August, 1880, and further by his evidence given in this Court on the 28th when he said - "There is only one thing that I can personally testify to.  Mr. Bidwell says I verbally agreed to his terms.  I deny that." - that he never accepted or thought of assenting to Mr. Bidwell's terms.  There is not the slightest evidence that he did; on the contrary, from the very beginning he warned Schultz against Bidwell's intercession.  Bidwell said himself in his evidence yesterday that Helland answered him verbally at the interview on the 12th August that "it would be all right about commission when the thing was completed, but that nothing was settled yet."  Helland referred of course, to the entire arrangement as proposed by Bidwell, that is, the joint account business.
  With reference to the second point, we can prove that the arrangement with Sheng Taotai, as proposed by Bidwell, was never concluded.  The very first time Schultz was introduced to Sheng he declared that he would furnish the entire capital himself, and that he only wanted the company to sell him part of the material at a commission, but that beyond this the company was to have no interest in the undertaking whatever.  This Schultz reports in his letter to Helland, No.8, dated Tientsin, 19th July, 1880. Four days after, Schultz reports in his No. 9 to Helland, that he has had an interview with the Cheng Tang himself, which was not arranged either by Bidwell or by Sheng, and from that moment all thoughts of negotiating with Sheng were abandoned by the company.  Mr. Tong in his examination yesterday of what took place between himself and Sheng Taotai also states that Schultz, a few days after his interview with Sheng and Bidwell, and independent of these two gentlemen, secured an interview with the Viceroy, where the contract for the Shanghai-Tientsin line was promised the Company by the Viceroy. This of course agrees fully with Schultz's report No.9.
  This and other interviews with the Ching Tang led to the appointment of a commission of four officials, of whom Sheng Taotai was one, and who four months afterwards concluded the contract of December.  We produce this contract for the information of the Court, to prove that no such arrangement as that proposed by Bidwell was even considered with the Government, for whose sole account the line was built, the Company having no interest whatever in the undertaking except that of receiving a certain commission on such parts of the material as they bought for the Chinese Government's account and of supplying foreign engineers to erect the line.
  Our defence is this:-
- That no arrangements with Bidwell of any kind were agreed to by Mr. Schultz.
- That even had this been the case Schultz would not have had the power to bind the Company, and Bidwell was fully aware of this.
- That Helland never agreed to any arrangements with Bidwell.
- That the contracts concluded with the Chinese Authorities for the erection of the Shanghai-Tientsin and the Chinkiang-Nankin lines were settled with other parties, and on an entirely different basis to that proposed by Bidwell.
Mr. Wainewright - Will you let me look at the contract?) - after examining the contract). Yes. I thought so, it is signed by Mr. Schultz on behalf of the Company.
  Mr. Henningsen -Yes, but you do not mention that it is signed by power of attorney provisionally.  That proves that he required a particular power of attorney to sign a contract for the Company.
  Mr. Wainewright then replied for the plaintiff.  He said: In dealing with the evidence in this case we must first consider the evidence as to the agency of the parties - I mean the Chinese and Mr. Schultz.  I think that the evidence shows, as far as it can, that Sheng Taotai was the agent of the Viceroy, and that he treated with Mr. Schultz in that capacity.  Mr. Bidwell swears that when he began to talk, in his first interview with Sheng Taotai, about the proposed enterprise, Sheng told him that he represented the Viceroy, and that evidence is not contradicted.  This is confirmed by the evidence of Mr. Tung, and it is very strongly confirmed by the fact that Sheng Taotai was one of the signatories of the contract with the Great Northern Telegraph Company, and has since been one of the officials of the Telegraphic Department of the Chinese service.  He has been all along connected with this matter. The evidence that when he was dealing with Mr. Schultz and Mr. Bidwell he was acting as the representative of the Viceroy is almost un-contradicted.  The letters and all the evidence show that he was the agent of the Viceroy.  Then, as regards the position of Mr. Schultz, there is no doubt that the evidence all points to his having been entrusted by the General Agent of the Company with the negociations and everything connected with them.  It would almost amount to a fraud upon Mr. Bidwell if it were not so, because Lieut. Schultz presses him for information, asks him for terms, takes advantage of his introductions and information which Mr. Bidwell gives him, and then, on Mr. Bidwell saying that his price would be a certain specific thing - viz., this commission - the Company seek to avail themselves of the plea that he was unauthorized on the ground that Mr. Schultz did not hold a power of attorney they take advantage of Mr. Bidwell's services and pay him no recompense whatever. They attempt to avail themselves of the limited power of the man they have appointed to deal in the matter. I am sure that no Court of Law in the world would allow such a thing.  There is no more sure proposition in law than that if a man places another in such a position that the outside world is entitled to regard him as the agent of the person behind, the person putting forward that agent gives him full power to do all that he may be reasonably expected to have the power to do.  A principal cannot give secret instructions to an agent, or limit his power secretly and hold him forth to the world as having larger and different powers.  The Company cannot now turn round and say that Mr. Schultzwas not authorised to conclude any arrangements at all with Mr. Bidwell.
  Then they put forward another defence - that Mr. Bidwell talked about one arrangement, and another arrangement was, after considerable negociation, ultimately come to.  What Mr. Bidwell claims his commission for is the introduction of the Company to the Chinese authorities - an introduction which led to profit to the Great Northern Telegraph Company in their particular line of business.  There is no doubt at all that when Sheng Taotai first talked to Mr. Bidwell he did sketch out a scheme for the construction of telegraphs which was not the scheme ultimately adopted, but if the value of the introduction was not financially the same, yet there was an introduction, and it led to this business.  There is a case which, although it was decided in an English Court of Law, is I think, entitled to consideration in its bearing on this case.  It is the case of Green v. Bartley, in the Court of Common Pleas in 1863.The origin al idea was, no doubt, that Mr. Bidwell should introduce the agent of the Company to this Chinese official with a view to their jointly constructing a line of telegraph but that arrangement was, by consent of the parties, afterwards changed, but the introduction was nevertheless the cause of the Company's getting all the benefits which they have got from the Chinese. The benefit has been obtained, and we contend that but for the introduction that benefit would not have been arrived at; and the fact that the parties afterwards agreed to a change does not affect our right to recover some remuneration for the service rendered by us in the introduction.  
  The evidence shows that in the very first interview between the Company's agent and the Chinese official the arrangement ultimately adopted was the one talked about.  The correspondence which has been produced by the defendants, between Mr. Schultz and Mr. Helland, throws considerable light on the way in which this suit has been defended. The defendants evidently were perfectly ready to accept whatever benefit they could get from the plaintiff, and from the very first they intended, if possible, to escape paying for it.  In his very first  letter Mr. Schultz writing to Mr. Helland,  says, "The question is now, first how far one can rely on Mr. Bidwell, and then if it would not be possible to obtain something without him;" and Mr. [Helland], in the reply, says he would like Mr. Schultz to get all the information possible out of Mr. Bidwell without committing himself to anything - that is, go in a pleasant and seductive way to Mr. Bidwell and ask him for the very thing that was a valuable property to him, and which he wished to sell, and then turn round and say, "Thanks, I do not want anything more to do with you now; we can go on alone"
  In the same letter Mr. Helland proposes that Mr. Schultz should, if possible, negociate with the Viceroy direct, using Mr. Bidwell's name. That is, he is to use Mr. Bidwell's name as an argument with the Viceroy, and at the same time to be very careful that Mr. Bidwell derives no benefit from the use of his name.  This sentence of the letter is very significant.  It shows that the Company looked upon the Chinese as an agent of the Viceroy, because Mr. Helland talks about dealing with the Viceroy direct. It was known that the Viceroy was the man who had the matter in hand, and they looked upon Sheng Taotai as necessarily the agent of the Viceroy, and as the man through whom the Viceroy could be approached.   But after receiving Bidwell's information, for the purpose of depriving him of any claim they tried to get at the Viceroy direct.  They say they succeeded in this, but we say there is no evidence of that.
  Mr. Schultz says in a letter to Mr. Helland that he has privately tried to find out who is the influential and wealthy Chinaman referred to by Mr. Bidwell and that he believes it to be Sheng; but he is not sure, because a week later he writes to say that he has ascertained from Mr. Bidwell that it is Sheng, and he says he thinks there would be no harm in seeing Sheng and finding out exactly what the proposal is - that is, let Mr. Bidwell earn his money by introducing him to Sheng, and then turn round and say he is not to have any money.  It appears however from the correspondence that Mr. Schultz contemplated paying Mr. Bidwell something.  He intended to make all the use of Mr. Bidwell he could, and to accept all the services which Mr. Bidwell said he could render, and at the same time he flattered himself that he could do all this for nothing - or at any rate something very small. That appears to be the position that was taken by the Great Northern [Railway] Company from the first - to get as much as possible from Mr. Bidwell and then turn round and say he should get nothing at all for what he had done for them.  To find out what was really arranged between the Company and Mr., Bidwell it is only necessary to go through the letters which have been handed in on behalf of the plaintiff.  Mr. Schultz writes on the 15th - "Mr. Helland desires to know what you think is a fair commission."  He puts it in that way, but Mr. Bidwell was certainly entitled to presume that Mr., Schultz had instructions from Mr. Helland as to what commission they would be prepared to pay.  Mr. Bidwell replies that his commission would be five per cent.  Mr. Schultz, in answer, writes, "O.K." and puts his initials, and follows this by asking Mr. Bidwell to go on with the matter - to introduce him to the Chinese official.  He then avails himself of the introduction.  Now it is said "O.K." only meant that your information was all right - that I was satisfied with your giving me the name - it applied to all your letter except the last paragraph.  I did not tell you so at the time, but now, two years afterwards, I explain that "O.K." referred simply to the first paragraph of your letter and had no application to the last."
 I say that the note amounted to a distinct contract - coupled with the fact that the proferred services were immediately accepted.  I need not say that the signature by initials is sufficient.  "O.K." is a well known way in China of expressing acquiescence.  If Mr. Schultz had intended simply acknowledging the letter he would simply have signed his initials.  He could not divide the "O.K." into two parts and say it referred to one and not to the other.  This note was followed by the introduction, which, though it did not lead ti business in the same form as at first contemplated, yet led to a substantial benefit to the company, which they are clearly entitled to pay for.  
  With regard to the question as to how far that interview led to the Company getting the contract which they did get, owing to our unavoidable failure to procure the attendance of Sheng Taotai we are deprived of our best witness to this point.  All the evidence we have given is, however, in support of the theory that the introduction to Sheng Taotai was of value in procuring the Company the contract. We have Mr. Bidwell's evidence, and we have the evidence of the letters which passed between Mr. Helland and Mr. Schultz.  Up to the last they encourage Mr. Bidwell to go on with his negociations with Sheng, and even when they have got an introduction directly to the Viceroy they still hold in with Sheng Taotai.  They evidently feel that he is a very important element in the business. They still encouraged Mr. Bidwell to go on working with Sheng Taotai, even after Mr. Schultz's interview with the Viceroy, and yet they now turn round and say, "we have had nothing out of the introduction to Sheng Taotai."    If the position they take up now is the genuine position, it would seem that Mr. Helland was what is vulgarly termed "fooling" Mr. Bidwell in making him go on with negociations which he knew to be superfluous.  They evidently regarded Mr. Sheng Taiotai as an important element in the matter.  They were quite willing to have two strings to their bow, and they allowed Mr. Bidwell to go on and complete what was done at the introduction.,  We have no power to compel Sheng Tao
Tai to attend; he is not at all afraid of us, and has no particular motive to serve in putting himself out of the way for us. We are unable to procure his attendance, but the defendants, one would have thought, could easily have procured it.  He is an intimate friend of theirs.  At the dinner on the night before the first hearing, Mr. Helland, I believe, dined on his right hand.
  Mr. Henningsen - On his left hand - Chinese etiquette (laughter.)
  Mr. Wainewright - Yes, close to the heart (laughter).  The defendants could easily have procured his attendance, why did they not get him to come and   say that the introduction did not lead to the contract? They are afraid to have him come forward; they are afraid that he would say that the introduction was of use.  We have been unable to do it; there is every reason to think that they could have done it, and there is not the slightest evidence that they attempted to do it. All the evidence points to the connection of the completion of this contract with the introduction, and I say we are entitled to share in the benefit received, because we gave the information in the first instance on the understanding that we were to share.  There is no evidence to contradict Mr. Bidwell when  he says that he was ready and willing to do anything further that they might wish him to do to assist them,  Mr. Helland's letter of the 14th August shows that he was ready to get assistance from Mr. Bidwell if necessary.  Mr. Bidwell deposed that the reason he did not take any further part was that Mr. Helland told him it was unnecessary. with the other correspondence and Mr. Bidwell's it is clear from Mr. Helland's letter of the 14th August that they were still keeping Mr. Bidwell in play - still ready to make use of him if necessary.  The letters produced by the defendants, if carefully read, will, I submit, help our case considerably. I will not take up time by reading them because I think it would be better for the Court to read them, and I beg that the Court will read them carefully, because, coupled with the other correspondence and Mr. Bidwell's evidence, they really, it seems to me, go far indeed to support Mr. Bidwell's case.  They make it as good as, in the absence of Sheng Taotai,, it can possibly be.  With regard to the interview between Mr. Helland and Mr. Bidwell on the 12th August, Mr. Helland has never given any evidence about that, except in the vaguest way.  In his answer to the petition he denies it in toto, whatever that may mean.
  Mr. Henningsen - It means "altogther."
 Mr. Wainewright - What I mean is that ":in toto," used in a legal document, is a little vague.  Mr. Helland's evidence as given the other day does not exactly agree with his letters to Mr. Schultz.  Mr. Helland's evidence, if read carefully, shows that he had forgotten a good deal, I think.
  As regards the note on the back of the letter, made by Mr. Bidwell after his interview with Mr. Helland on the 12th August, I submit that it is perfetly good evidence, because it was made, according to Mr. Bidwell's oath, at the time or immediately afterwards, and there is nothing to contradict it except this vague general denial of Mr. Helland's.  As regards the evidence of Mr. Bidwell's compradore, I do not see that there is anything to impugn it.  I do not think I need [now] go through the evidence more thoroughly, but I think I nay confidently anticipate that the Court will consider upon the evidence that out story is made out, and at any rate is not disproved; and that if there is any doubt we are entitled to the benefit of it; because really it is quite clear that we were used by the defendants, ands it is quite clear that they have received the benefit, and therefore in justice we  are entitled to share in the benefit.
  Of course if the Court thinks we are not entitled to five per cent it is for them to apportion a fair and just payment.  I submit, however, that there was a specific arrangement for five per cent.  Something has been said by the defendant about the paltry nature of what the Company have received, and that our claim is greater than their benefit, but it must be  remembered that the mere construction of this line is a very small item in the advantage they get.  They get an important feeder for their other lines - at all events it has been sworn that Mr. Schultz took that view of it.
  Mr. Henningsen asked if he had a right to reply.
  Mr. Wainewright said Mr. Henningsen had not a right to reply.
  Mr. Henningsen thought that in any Court the defendant always had the last word.
  Mr. Wainewright had always found that the advantage of being plaintiff was that one had the last word.
  The Court decicdd that Mr. Henningsen had not a right to reply.
  The Court then announced that they would go through the evidence and give notice of their decision.

 

Source: North China Herald, 21 March 1883


IN HIS DANISH MAJESTY'S COURT FOR THE CONSULAR DISTRICT OF SHANGHAI, CHINA.
Shanghai, 15th March, 1883
Before William Paterson, Esq., Acting Consul for Denmark, and Alfred Adolphus Krauss, Esq., C. S. Warburg, Esq., Assessors.
H. S. BIDWELL v. GREAT NORTHERN TELEGRAPH CO.
  Mr. R. E. Wainewright appeared for the plaintiff, who was also present; and Messrs. Bohr and Henningsen, General Agents of the Great Northern Telegraph Co., appeared for the defendants.
  The President of the Court  said - I shall now read the judgment in the case between Henry Smith Bidwell, plaintiff, and George John Helland, sued as the Agent and representative in Shanghai of the Great Northern Telegraph Company, Defendant:-
Judgment -
  There appears to be little dispute as to the main facts of the case, which are shortly as follows:- In the month of July, 1880, Mr. Schultz, the Secretary of the defendant Company, being in Tientsin on the Company's business, was communicated with by the plaintiff Bidwell, who proposed to introduce him (Schultz) to an influential Chinaman, with the view of obtaining from the Viceroy of Chihli (Li Hung-chang) certain contracts or commissions for telegraph lines, upon the express basis that "the Company shall give him (Bidwell) a reasonable commission on all lines which should be built."  This proposition was communicated by Schultz to Helland and a reply received from the latter; but in the interval Bidwell obtained from Schultz certain estimates as to cost of construction of telegraph lines, which Bidwell says he communicated to the Chinese.  On the receipt of Helland's reply Schultz communicated the gist of it to Bidwell, and wrote to him making certain enquiries as to the "influential" Chinaman, and asking what Bidwell would consider a fair commission on all the lines that might be built hereafter.  To that letter Bidwell replied giving the required information, and stating that his commission would be 5 per cent on the cost of construction of lines in China.
  Subsequently to this interchange of letters, and without any further reference to Helland, Schultz availed himself of Bidwell's introduction to Shen Taotai, the "influential Chinaman" in question.  In fact he was taken by Bidwell personally to Shen Taotai, and proceeded to negotiate with him concerning telegraph lines. Bidwell, having effected the introduction, appears to have taken no further part in the matter, and the Company through Mr. Schultz, subsequently obtained from the Viceroy; a contract for the construction of telegraph lines from Shanghai to Tientsin, and Chinkiang to Nanking, which they carried through, and were, it is to be presumed, duly paid; but it is admitted that these contracts were not of the nature originally contemplated by Schultz and Bidwell, and of a less remunerative and profitable character so far as the Company is concerned.  Under these circumstances Bidwell claims his commission at the rate of 5 per cent on the total amount of the money received by the Company since the 14th July for the construction of telegraph lines in China.
  The claim is wholly repudiated by the company, principally upon the grounds that Schultz had no power or authority to bind, and did not in fact profess to bind the Company to Bidwell; that the introduction was, in fact, useless, and that the contracts obtained for the construction of telegraph lines were settled with other parties, and on an entirely different basis from that proposed by Bidwell.
  The first ground of defence given is erroneous, Schultz being an influential officer of the Company, who, after reference to the General Agents, and whilst fully aware of Bidwell's terms, impliedly if not expressly accepted and availed himself of Bidwell's introduction to Shen Taotai, and clearly acted, and was allowed by the General Agents to act, in such a  way as to lead Bidwell reasonably to believe that he had the requisite authority from the Company.
  The second ground of defence equally fails, because it is clearly admitted that Shen Taotai is an official of importance at the Viceregal Court of Li Hung-chang, and, what is still more to the point, was one of the signatories to the contract obtained by the Company, and is actually one the managers of the constructed lines.
  The third line of defence is of more weight, and goes I think to show that the plaintiff's claim must fail as a whole.  It appears to be clear that the contracts which Bidwell and Schultz had in contemplation at the time that Bidwell named his terms, of 5 per cent on the cost of construction of all lines in China, were contracts which,  had they been carried through, would have proved far more profitable and remunerative to the Company than those actually obtained by them and in respect of which the plaintiff now claims commission.
  The Court is of opinion therefore that the commission has not been earned, but inasmuch as the evidence and admissions go clearly to show that the introduction effected by the plaintiff was of some value to the Company, and as it was certainly made by the plaintiff on the assumption and understanding that he would be paid for it by the Company, the Court considers that the plaintiff should be awarded some remuneration, and this remuneration is fixed at the sum of Two Thousand Taels Shanghai Sycee, which the Court orders the defendant Company to pay to the plaintiff in full of all claims.  The defendant Company to pay Three Hundred and Five Taels Shanghai Sycee for costs.
 Mr. Henningsen. - We beg to give notice of appeal to the Supreme Court of Denmark at Copenhagen.
  The President - Then you must send in your notice of appeal within fourteen days.
  The Court then rose.

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