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Colonial Cases

Jamieson v. Comyns, 1885

[company law]

Jamieson v. Comyns

Civil Summary Court, Shanghai
Mowat AJ, 8 July 1885
Source: North China Herald, 10 July 1885

Shanghai, 8th July.
Before R. A. Mowat, Esq., Assistant Judge.
W. B. JAMIESON v. C. COMYNS. [Comins.]
  This was a claim for the delivery of fifteen shares in the Indo-China Steam Navigation Company, or in default he payment of Tls. 50.
  William Black Jamieson, plaintiff, share-holder, said that on the afternoon of the 1st July he wished to buy some shares in the Indo-China Steam Navigation Company, and meeting Mr. Comins he asked him if he had any to sell. Mr. Comins said he had some 20 or 25.  The plaintiff asked Mr. Comins to go and ascertain how many he had, and said that in the meantime he (plaintiff) would telegraph to Hongkong to see if he could take them.  Later in the day the defendant came to plaintiff, and told him the principal did not know how many shares he had got; but he would see when he got home.  The next morning (Thursday, the 2nd instant), at 10 o'clock, Comins came to him, and told him there were fifteen shares; and agreed to sell them to plaintiff at Tls. 30 per share, cash.  The shares had never been delivered, and they had gone up three to four taels.  Plaintiff therefore now claimed either the delivery of the shares or Tls. 50, being the difference in the price.  Between eleven and twelve o'clock the same morning, he met the defendant in Peking Road, near Jardine's, and the defendant then said he wanted the shares cleared that day.  He (Plaintiff) replied that it was not usual to clear shares on the same day, and he would give him a cheque on the following morning.  
  At 3 o'clock in the afternoon of the same day (Thursday) he again met Comins, and Comins said, "If you don't pay for those shares today you can't have them." Plaintiff replied that it was not usual; but the defendant insisted, and plaintiff said, "Very well; Give me the shares and I will give you a cheque." The defendant, however, did not deliver them.
  Defendant - When you first made your bid, on the first July, did you tell me you had to wire to Hongkong, or was it afterwards, when I said I could deliver about so?
  Plaintiff - You told me there were 20 or 25; I asked you to ascertain how many there were, and I said in the meantime I would wire to Hongkong.
  Defendant - I offered the shares for payment that day.  It is the usual custom if you make a bid early in the morning you are supposed to clear them that day.  My arrangement with the plaintiff was that the cash should be paid that day.
  The Defendant was then sworn.  He said he was a share-broker.  On the 1st July he met Jamieson, and Jamieson asked him if he had any Indo-China shares.  Defendant said he had some, and Jamison offered to buy them.  He said nothing at the time about wiring Hongkong.  Defendant went and saw his principal, and then went back to Jamieson and told him he could sell the shares but he was not certain about the number; it was about fifteen or twenty, or perhaps twenty-five.  Jamieson then said he would wire to Hongkong.  At ten o'clock next morning he (defendant) saw Jamieson and asked him about the shares, and Jamieson said he would take them.,  Defendant said he would have to see the principal first, and find out if he would sell them that day.  Defendant accordingly went to see his principal and at 11 o'clock he again saw Jamieson.
  He then told Jamieson that there were only fifteen shares at Tls. 30 per share, adding that he would hand them in at 12 o'clock.  Jamieson said, "Oh, but I cannot pay for them today; I will pay for them tomorrow." Defendant said he would see his principal again and see if it could be arranged; and at 12 o'clock he saw Jamieson at the Club and again told him that the shares must be paid for that day. Jamieson again said, "I cannot pay for them today; I will pay for them tomorrow." Defendant met the plaintiff at 3 o'clock the same day, and said, "Well there is no contract between us.  I have offered you the shares for cash, and you have refused my terms twice. I cannot deliver them to you.  The contract is off." Plaintiff said, "But I want the shares.  I will give you a cheque now."  He (Defendant) then said it was too late; the contract was off.  Defendant had at that time already sold the shares to another man for the same price - Tls. 30.
  Plaintiff - Who bought them?
  Defendant (to his Honour) -Is that relevant?
  His Honour - It cannot be material.
  Defendant - I do not see that I am to explain my business to you unless his Honour says I must.
  Plaintiff - Did you not sell the shares to me at 10 o'clock on the morning of the 2nd?
  Defendant - No; I told you then that I did not know how many shares there were. At 11 o'clock I told you; but at 10 o'clock I did not know myself.
  Plaintiff - Did you get ready money for the shares?
  Defendant - Yes.
  The Plaintiff again declared that the defendant had sold him the shares at 10 o'clock and had said nothing about payment the same day until the second interview, at 11 o'clock.  He offered to produce evidence to show that when shares were sold for cash it was the custom to pay for them the next day.
  His Honour said it [was] unnecessary, because he considered that this was a special contract, and custom did not come in.  The defendant had said that he did not sell the shares at 10 o'clock, because he said he did not know how many shares there were till he went to his principal after the interview at 10 o'clock.  It was admitted that at the interview at 11 'clock the defendant stipulated that the shares were to be paid for that day.  It was therefore a special contract, and custom did not come in. Judgment would be for the defendant.

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