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Colonial Cases

Wu Yu-Shan v. D. Sassoon, Sons & Co., 1885

[sale of goods, gold]

 

Wu Yu-Shan v. D. Sassoon, Sons & Co.

Supreme Court for China and Japan

Mowat AJ, 14 April 1885

Source: North China Herald, 18 April 1885


LAW REPORTS.
14th April.
Before R. A. Mowat, Esq., Assistant Judge.
WU YU-SHAN v. D. SASSOON, SONS & Co.
  Mr. Wilkinson appeared for the plaintiff, and Mr. Wainewright for the defendants.
  The plaintiff is a banker and bullion merchant in Tientsin, trading under the Name of Heng-i-yu Hong and he claims Tls. 4,861.98 from the defendants as the balance due to him on sale of gold made to the defendant firm through their late compradore in Tientsin, Hoo Mei-pin. The answer alleged that the compradore, Hoo Mei-pin, who became bankrupt in December, 1883, was trading to a large extent on his own account as well as on account of the defendant firm, and that this gold was bought by him on his own account, and not for the firm.
  (It may be remembered that a somewhat similar case against the defendants was heard in the Supreme Court on appeal from the Consular Court of Tientsin in November, 1884, the plaintiff and respondent being a gold merchant named Wong Gang-ying.)
  Mr. Wilkinson having briefly opened the case for the plaintiff,
  CHIAO CHING-KUEI was called and examined by Mr. Wilkinson.  He said - I am manager of the Heng-i-yu Hong and have been so for five years.  My firm has been in the habit of doing business with "Lao Sha-sun" for four years - from the 6th to the 10th year of Kuang-su.  My firm used to sell gold to Sassoons through their compradore.  I recognize the receipts produced.  One is "Received from Heng-i-yu Hong, gold bars, 5 ping; 253 oz. 7 mace, 3 candareens, at the price of Tls. 18.33 per ounce." It is dated the 18th day of the 10th moon two years ago. (The other, dated the 16th of the 10th moon, was similar.) The words "Tientsin, old Sassoon foreign hong," on those receipts, are stamped.  It was I who sold that gold; it was almost always I who sold the gold to them by our firm.  During the four years I have mentioned we had dealings in gold with Sassoons every year.  Hoo Mei-pin is Sassoon's compradore; I never sold gold to him for himself.  I always bargained with Ho Mei-pin and also delivered the gold to him.  I always gave credit to old Sassoons, and in this case I gave credit to them. The transaction with regard to this gold and the gold I sold before was he same; Sassoons gave receipts of the same kind.  I delivered the gold myself to Hoo Mei-pin and got these receipts in person.  There is Tls. 4,861.98 due.  I have never received a cash of that.  I was the person who did all this business for the Heng-i-yu Hong.
  Cross-examined by Mr. Wainwright - There is only one proprietor of the Heng-i-yu Hong; I am only a paid servant.  The proprietor of the hong lives in Shansi, not at Tientsin.  I applied to the Tao-t'ai and also to the British Consul at Tientsin about this case.  I presented a petition trough the Toa-t'ai to the Consul at Tientsin; I drew it up myself.  This paper produced appears to be a copy of the petition which I presented to the Customs Tao-t'ai.  There is not a false statement in that petition.  There are two assistants in the hong besides myself - Yen Ping-chun and Liu Tien-kuei.  I went to Ho Mei-pin's office to offer the the gold for sale; that was on the 15th and 17th November, 183.  I know Hu Fu-chen, he is one of the assistants to Hoo Mei-pin.  I did not negotiate with him in either of these lots, but direct with Hoo Mei-pin.  The negotiations took place in the comprador's room of old Sassoons.  Nobody ever told me that I was bought on Hoo Mei-pin's own account, and not for old Sassoons.  The gold was delivered at the office at the foreign Settlement.  I delivered it into the hands of Ho Mei-pin.  I have never spoken to the foreign head of the firm of Sassoons at Tientsin about the sale of this gold, because I do not speak English.  I knew him by sight, but I did not know him by name; I see him in Court (pointing to Mr. Shekury.)
  The court then adjourned.
  On the sitting being resumed,
  The witness, further cross-examined, said -I do not know Shen Ye-ping, though you tell me he was Hoo Mei-pin's clerk; nor do I know Tong Yuan-jean, who you say was accountant at Ching Chong, and had a seat in Hoo Mei-pim's office; but I know the firm of old Ching Chong.  I do not know Hoo Mei-pin's connection with old Ching-chong.  I have frequently been in Hoo Mei-pin's office during the four years; certainly twenty times; I cannot say whether I have been there fifty times. I remember that there were sign-boards outside and inside.  I remember one, "Old Sassoon foreign hong;" but I do not recollect the others.  I recollect that here was another of the foreign firms Collins; but not one of the San Yuen Insurance Company. I do not know why the sign of Collins was up; but I know the sign-board of Sassoon was up because they have an office there and sell opium.  I do not deal in opium.  
  I have my account book for the 9th year of Kuang-su.  I had here transactions in gold with Sassoon in that year.  The first was on the 27th day of the first moon, when I sold them 20 bars.  The second was on the 16th of the 10th moon, and the third on the 18th of the 10th moon.  The second and third are those that I am suing for.  The first lot of gold was to be paid for 28 days after delivery.  There was no settled time in which money was to be paid; on some transactions the gold was paid for cash down.  One month was the longest time for which credit was given; sometimes it was for three weeks.  I do not know that Hoo Mei-pin was doing business on his own account as well as on account of Sassoon & Co. I knew that Sassoons dealt mostly in opium; and in various kinds other kinds of commodities, but what they were I did not know.  I knew there were godowns near Hoo Mei-pin's office, but I did not know what was stored in them.  I never lent money to Hoo Mei-pin.  The ten entries marked in the account book shown me (belonging to Hoo Mei-pin) are not entries of money lent by me to Hoo Mei-pin; I never lent him money.  In buying furs in Mongolia, Hoo Mei-pin did use drafts on my bank.  I took up the drafts, and he generally repaid me in Tientsin.  I mean that when he was buying furs in Mongolia the dealers would let Hoo Mei-pin have the goods upon credit, and Hoo would pay us on his return to Tientsin.  I don't know whether Hoo Mei-pin bought the furs for himself or for old Sassoons; but the drafts had "Sha-sun" on them.  Hoo Mei-pin owes me money now - about Tls. 1,000.  That draft was incurred in buying furs.  I have the other half of the paper produced, it is one of the drafts I have been talking about, and in similar form and signature (stamp) to all the drafts I have been speaking of.  That daft became payable about the 15th day of the 2nd moon of the 10th year of Kuang-su.  It is dated the 4th day of the 10th moon of the 9th year; but it would not have reached Tientsin till about the 15th, and it is payable 120 days after sight.  The Tls. 1,000 which he owes me is a balance on that draft; the other portion was paid partly in cash and partly in goods; the goods and cash were paid at Chang Kiu-kou in Mongolia.  I do not know how much was paid in cash.  I have not sued Sassoon for the balance on that daft because I knew that this was not on Sassoon's account.  I recollect Hoo Mei-pin failing; that was in the 12th moon of the 9th year - I do not recollect the exact date.  I went to his office several times because he owed me money; but I do not think it was very often.  He owed me the balance on this cheque, and the money for the gold, which old Sassoon owed me.   I asked him for the money for the furs, and also for the gold.  I did not think old Sassoons had failed. At that time Hoo Mei-pin had not paid me a cent of the money for the furs (Tls. 4,000 odd). He did not give me an order for the goods in Mongolia with which he afterwards partly paid the draft on account of the transaction; but he gave me a share in the Tien-yuen Bank in Shanghai but at that time the Bank was already close.  The share is in Tientsin; I cannot remember what the nominal value was; I do not recollect whether it was Tls. 3,000.  I did not send men to watch the godown, and I did not try to take goods from them.  I recollect that in the 12th moon Hoo Mei-pin invited his creditors to a dinner; but I did not go.  I heard that Hoo Mei-pin then made an offer to his creditors.  I did go to the house when he made the offer I did not stay for the dinner.  Hoo Mei-pin said he would pay up the debts next year; but I said, "No, I cannot wait till next year;" and then I went away.  I know the houses in Tientsin whose names are written on the paper produced; but I did not know they belonged to Hoo Mei-pin.  I have known him seven or eight years; we were good friends.  I cannot recollect that we dined together very often, but we did once or twice a year.  I did not know that Hoo Mei-pin was in the habit of using a chop with "Lao Sha-sun" on it for his own business.  I told Hoo Mei-pin that I looked to the foreign hong to pay for the gold; I cannot remember the date when I told him so.  I know the Hong-li gold shop, but I did not know that Hoo Mei-pin had a share in that.  I do not know anything about the statement of accounts between myself and Hoo which you put in my hand; I cannot say whether it is correct or not.  
  I presented a petition to the Customs Tao-tai, not against Ho, but against "Lao Sha-sun," asking the Taotai to communicate with the British Consul.  That is the only petition I presented to the Customs Tao-tai; but I also presented one to the British consul.  That was also against Lao Sha-sun foreign hong.  Before I presented he petition I asked Mr. Shikury to pay, in the compradore's room of the office in Tientsin.  That was the 1st moon of the 10th year of Kuang-su, about the middle of the month.  He always put it off on to the comprador's shoulders, and that is the reason I sued the fm.  I spoke to him about it two or three times.  I cannot speak English, but I spoke to the foreigner (Mr. Shekury) through Hoo Mei-pin.
  Re-examined by Mr. Wilkinson - I never knew of Hoo Mei-pin's dealing in gold on his own account.  The money on the draft was advanced to Hoo Mei-pin by my firm at Chang Kiu-kou in Mongolia, and the payment on account of that draft was made there.  I never informed Hoo Mei-pin that the bank had failed  I telegraphed to my friends in Shanghai to know if the Tien-yuen Bank was sound, but learnt that it was about to close; but I did not tell Hoo Mei-pin. The share at that time was not worth a cash.  The name of the firm on which the draft is drawn is not written or pronounced the same as the characters for the defendant's firm.  When I could not collect the money in Tientsin I sent back the daft to Chang Kiu-kou, and it was there that the goods were handed over.  I received no goods of any kind in Tientsin.
  Mr. Wilkinson said that was his case.
  The Court then adjourned till Thursday morning at ten o'clock.
16th April.
  GABRIEL ISAAC SHEKURY, examined by Mr. Wainewrght, said - I am a British subject, and am in the employ of Messrs. D. Sassoon, Sons & Co.  I have been with tem for five years and a half' I was in Tientsin with them from March 1880 till April, 1884, with an interval.  I was an assistant all that time; but I was in charge from 9th November, 1883, till April, 1884, when the house was closed.  I lived at the Company's house at Ze-chu-lin; the compradore, Hoo Mei-pin, was living in the city, about three miles from the company's office.  We dealt chiefly in opium and piece-goods; we imported nothing else, and we exported nothing but gold, sometimes for remittance.  When we first went to Tientsin there was no bank there; but in June, 1881 the Hongkong bank opened a branch there.  After that we bought much less gold.  In 1880 the firm purchased 2,000 bars - that is during the year commencing 1st April, 1880, and ending 31st March, 1881.  In the following year we purchased 855 bars; in the next year 10 bars.  That covers the period up to the end of the company's agency there.  We recorded in our books the names of the merchants from whom the gold was bought.  On the 12th March, 1881, we bought 28 bars of the plaintiff firm, and 25 bars on the 9th March, 1883.  Those are the only two purchases from the plaintiff firm during the last ten years; and so far as I now, we never had any dealings with the firm.  I am quite sure that no gold was bought from them for the firm in November, 1883.  I never saw the plaintiff's witness Chiao Ching-kwei till I saw him in court here, and I never heard of this claim until March, 1884, and then through the Consulate.  When the witness says he spoke to me several times through Hoo Mei-pin at the compradore's office it is not true. He may have seen me going into the compradore's office, as I went there so often; but I never saw him.  I do not think it is possible that I ever had any conversation about this matter in the compradore's office when Chiao Ching-hwei was present; I do not recollect ever talking about the matter in the compradore's office at all.  The compradore's house was his own; he paid the rent, and he paid the wages of the servants employed there.  The compradore was paid by a commission on opium and piece-goods; he got no commission on gold.  He did not often come to our hong; he sent a representative nearly every day.  I used to go two or three times a week to the compradore's office during the winter; not so often in the summer.  I went to hear news and give news to the compradore.  I do not read or speak Chinese.  I saw several sign-boards hanging up at the compradore's office; but I did not know what the characters on any of the sign-boards mean; but I believe one of them to be the hong, but I did not know which it was.  I mean by that, that I believed one of them had the firm's name on it.  I never negotiated with any gold dealer about the purchase of gold; it was always bought through the compradore - he was told to buy it, - and it was delivered to the compradore in his office.  Then it was packed in a box, nailed up and sent to our office, and we shipped it.  It was marked by the compradore before he sent it to us, with an S in a diamond and another S each side of the diamond.  It was paid for by the compradore; it used to be three week's credit, but after the Hongkong Bank started, we used to pay cash.  The firm never borrowed money from the natives at Tientsin; they never borrowed money - they were never hard up.  
  The opium was kept in our godowns in the city.  The opium was delivered to purchasers by the godown-man. The godown-man used to get a delivery order; and he used to come to the agent for verbal permission to deliver the opium. The godown man was the compradore's servant, and the compradore paid his wages.  He used to give us an account every night of the opium he had delivered.  I do not remember that he ever delivered opium without getting our permission.
  I did not know what stamps or seals or chops he compradore was using, and while I was at Tientsin I never saw any documents.  I did not know that the compradore was using the name of "Lao Sha-sun" in connection with any business of his own;  never heard that he had permission to use any chop bearing the Chinese name of the firm while I was in Tientsin.  The compradore failed on the 31st December, 1883.  I do not know whether he was proceeded against by his creditors.  I knew the compradore was doing business on his own account; but I did not know he was using the name of the firm for it.
  Cross-examined by Mr. Wilkinson - The wins Chiao Ching-kwei may have seen me on my way to the compradore's office, but never at the office; I saw nobody at the office except the house-coolies.  The compradore had a public office; but I did not have to pass through that to get to the compradore's private office.  The sign-boards were hung up where people passing by could see them.  The godown man used to tell us the names of the purchasers when he asked for permission to deliver; but he never had any delivery orders in his hand.  The compradore gave the order or letter without any reference to us; I did not know he gave it, but it was natural in the business that he should do so.  The purchaser got delivery on that order, but not from us; if he had brought the order to us we should have told him to wait and see the godown man.  The godown was within the compound.  If we had told the godown man not to deliver the opium he would not have delivered it, he was under our instructions.  We did not pay his wages; but in all other respects he acted as a servant of the firm.  I swear that while I was in Tientsin I never saw any document stamped by the compradore.  The compradore had shares in opium shops I believe; but I did not say in the previous case that the compradore did not buy any opium for himself.  So far as I know, we have never bought gold on credit since June 1881.  I said at the court in Tientsin hat since a year ago we had no bought gold on credit; but that was because I did not then recollect the date when the branch of the Bank was started.  I never gave godown orders in English; formerly they used to be in English, but that was long before my time.  Sometimes we got gold from the opium merchants in payment for opium.  We did not pay for the gold with the opium merchants' promissory notes; we paid for it with the proceeds of the opium.  I did not say at Tientsin that the compradore was the servant of the firm - he does all the Chinese business of the firm.  We never made any direct payments to the gold-dealers ourselves in cash.  The compradore never shipped gold for us to Shanghai; it was always shipped by us.
  By His Lordship - The comprador came every night to settle accounts; before that we trusted entirely to the statement of the godown man in giving him permission to deliver the opium; he was a secured servant of the compradore.  There was never any stranger present in the compradore's private office when I was talking to him there.  We knew the names of the opium merchants; and if they were small merchants we would not deliver more than ten chests when the godown man came to us.
  Reuben Meyer Moses, examined by Mr. Wainewright, said - I am in the employ of Messrs. D. Sassoon, Sons & Co. I was in Tientsin from May, 1882, to the beginning of March, 1884. I was in charge from July, 1882, to 9th November, 1883; then I handed over charge to Mr. Shekury, as I was ill.  I have heard Mr. Shekury's evidence as to the manner in which the business was carried on, ad with respect to the purchases of gold; that is a true statement.  I have never before heard of the Heng-i-yu Hong; and I have never seen the witness for the plaintiff till I saw him in Court. I used to go to the comprador's office in winter about once a week and in the summer about once a month.  I do not know Chinese, either written or spoken. I saw a good many sign-boards at the compradore's office; I thought one had the name of our firm on it, but I did not know. I knew that the compradore was doing business on his own account, and that he was agent for various people; and particularly that he had shares in three opium firms.  I did not know that he was buying goods on his own account. While I was there, the gold was always paid for in cash.  It was paid from the proceeds of opium, by the compradore, I do not know in what shape.  I never saw any stamps used by the compradore, and I never authorized him to use any stamp.  I never knew or suspected that the compradore was doing business on his own account, and using the name of "Lao Sha-sun." We never borrowed any money from natives or others in Tientsin.
  Cross-examined by Mr. Wilkinson - When the godown man came for permission to deliver opium, I understood him to have received instructions in writing from the compradore to deliver it; I would understand that the compradore had informed the godown man in writing that he had sold so much opium for the firm to the person who brought the delivery order.  The godown man would tell us the price at which the opium had been sold.  While I was in charge, we never gave ay documents in English to any Chinese constituent; the compradore had authority to do all that was necessary in that respect.
  By His Lordship - I suppose there were Chinese documents given by the compradore, but I never saw any of them; I had no idea of what way he had the documents sealed.
  On the sitting being resumed,
  Hoo Mei-pin was called and examined by Mr. Wainewright.  He said - I was Lao Sha-sun's compradore for fifteen years, part of the time as assistant and part chief compradore.  I was chief compradore for nine or ten years.  My office was in the city.  I was also compradore for Collins, agent for old Ching Chong, for the San Yuen Insurance Company, for P. V. Grant (Boyd & Co.) and for several other Chinese Companies. I had a sign-board representing that I was old Sassoon's compradore, and also Collin's sign-board, old Ching Chong, the San Yun Insurance Company, and one on which it said "Commodities from Canton." The papers produced contain copies of the signs.
  Mr. Wong Kai-kah, interpreter, interpreted the four signs as follows: "English Merchant, Old Sassoon, Foreign Hong;" "English Merchant, Collins, Foreign Hong;" "Chinese Insurance Company San Yuen;" and "Old Ching Chong."
  The Witness, further examined said - The words "English Merchant" are added because it frightens the Chinese and makes them pay up.  Speaking in pidgin English, the witness said it was a custom in Shanghai as well as in Tientsin, even when there was no foreigner in the firm - "Inside me got foreign man; Shanghai have got plenty, Tientsin have got plenty."
  Continuing through the interpreter, he said - I had the signboard of old Sassoons made myself. I also did business on my own account. I used to buy goods of various kinds in Shanghai - rice, wheat, sandal- wood, seaweed, and various kinds of foreign goods.  I also did business in three places in Mongolia, where I purchased wool, furs and horns, mushrooms and raisins.  The agents knew it was my business, but they used signboards in the name of "Sha-sun; in Tientsin the business was done in the name of "Lao Sha-sun." I also had three opium-shops in Tientsin, two of which I owned entirely, and one with partners.  I also had two confectioner's shops in Tientsin. None of these shops were called "Sha-sun." I had three opium shops and one confectioner's shop in Pekin; they were not carried on under the name of "Sha-sun." Everybody in Tientsin knew that I did business on my own account, both natives and foreigners.  The business I did for D. Sassoon, Sons & Co. was in opium and piece-goods; I also bought the gold for them, and often bought gold on my own account. In 1883 I shipped about a thousand bars of gold on my own account and a hundred for Sassoons. Those for Sassoon I did not ship myself; I packed them and sent them to Messrs. Sassoons's office in the foreign settlement.  I marked Sassoons's  boxes with an S in a diamond, with another S each side of the diamond; and my own with H.K. in a diamond with the Chinese name of the consignee below, in Chinese characters.  I used stamps for the purpose of my business; I had tm engraved. I did not tell Sassoons I had them engraved.  I had "Lao Sha-sun" engraved on the seals.  I had six different stamps, making impressions like those on the paper produced. I used all these indiscriminately for Sassoon's business and my own.  I had the stamps for Collins's business, but I never used them; I used these six for everything; I considered that they belonged to myself.  Chinese stamps were used by Collins's godown man in the Settlement.  I do not know whether the foreigners in Sassoon's knew I was using the stamps or not; I never told them.  
  When I bought gold for Sassoon's, the sellers trusted me, and not Sassoon's.  Before the Hongkong and Shanghai Bank was started we had three weeks' credit in buying gold, but after that I paid cash down.  I paid them with native bank-orders which I received for opium sold.  When I bought gold for myself, I had sometimes forty days', sometimes one month's credit.  I have known Chiao Ching-kwei for eight or ten years - before he was in the Heng-i-yu Hong.  I have done business with the Heng-i-yu Hong ever since it was started seven years ago.  In 1883 I bought altogether 120 bars from them of which 25 were for Sassoons; the gold which is being sued for I bought on my own account.  Chiao Ching-kwei was an intimate friend of mine; sometimes we dined together once or twice a month, sometimes about ten times.  We frequently talked about business, and he knew all about my business.  I talked to him about gold which I purchased on my own account, and Chiao knew that I bought gold on my own account.  He would know that this purchase was for myself because of the long credit; gold bought for Sassoon's was paid for cash down.  I often told him that I was for myself, and so did the shroff.  Chiao sent an assistant named Liu Tien-kwai to our place and said gold was coming in a week or ten days and wanted to know whether I wanted to buy gold.  I sent my shroff back to tell them I had no money and did not want to buy.  I afterwards saw Chiao in the Heng-li gold shop. I told him that gold had fallen in price in Shanghai and I would lose by it; and he said he would make it up for me next time. That was after I had bought it. I bought the gold through the shroff five or six days after he first offered it to me; the Shroff settled the purchase.  Chiao Ching-kwei did not come to my office himself; it is not true that Chiao and I settled the price between us personally.  I never saw Chiao about the matter before the gold was bought; the boxes were already addressed when Liu (Chiao's assistant) brought the gold to put into them, and he saw the boxes. They were addressed to the Ying-ta Bank, Shanghai.  Chiao and Mr. Shekury never met in my office; it is not true that he talked to Mr. Shekury through my interpreter at any time.  Chiao has lent me money on ten different occasions; he handed me the money in the form of bank drafts; I gave him no security, except promissory notes; they were stamped "Lao Sha-sun;" I paid them all.  Altogether they amounted to Tls. 39,000. He knew that the money was advanced for my own business.
  I failed on the 29th December, 1883.  After I failed Chiao Ching-kwei came to demand money from me - the Tls. 4,400 odd which is now being sued for.  He came every day.  I gave him a share in the Tien-yuen Bank in Shanghai worth Tls. 3,000. The Bank has now closed; it is now collecting debts.  At that time it as doing business.  It ceased to do business in the first moon of the 10th year, Kuang-su; various people owe the Bank about Tls. 25,000. There are ten shares; each share was Tls. 2,000. I gave Chiao one share and a half, Chiao knew I had this share and asked me for it.  That was on the 5th day of the 12th moon.
  I had some godowns in the city and goods in them amounting to Tls. 15,000; and Chiao demanded some of these goods from me too.  He sent men to keep watch over the godown; all my creditors did so.  They sent men to sleep in the godowns all night and stay there all day; there were five or six men there, and two were sent by Chiao.  I knew one of them.  They got nothing out of the godown because Sassoons kept the keys; I owed Sassoons money and everybody knew it.  I gave the plaintiff goods belonging to me at a place in Mongolia; I assigned all that I had to the plaintiff; they were worth about Tls. 3,200.  I tried to make terms with my creditors, and I asked them to dinner. The witness Chiao was there; he came at 4 o'clock, and did not go away until 11 at night.  The dinner began about 8. I offered the creditors a composition of one-third; some consented, and the others want a half.  The witness Chiao said that if all consented, he would assent. Out of eleven creditors, eight consented and three did not.  Chiao never said that he looked to the foreign hong for payment.  
  This (produced) is a statement of my account with the plaintiff.  I owe him now Tls. 2,805.98.  Further examined, the witness said he had settled with other creditors with whom he had traded, in the name of "Lao Sha-0sun," and they had accepted a composition without making any claim on Messrs. D. Sassoon, Sons & Co. Eight houses had settled out of eleven to whom he had owed money; the other three were the three gold merchants who had sued or were going to sue Messrs. Sassoon.  The defendants had never sued any natives in the Chinese Court while witness was in their employ.  It was a usual thing for compradores to foreign firms in Tiensin to do business on their own account; they all did so, using the Chinese name of the foreign hong. The plaintiffs had never sued witness personally; he sued Messrs. Sassoons, and the Taotai arrested witness.
  The Court then adjourned.
  17th April.
  The Court opened at 10 o'clock.
  Mr. Wainewright having briefly opened the case of the fence,
  Hoo Mei-pin, cross-examined by Mr. Wilkinson, said - The defendant firm has been called "Lao Sha-sun" ever since new Sassoon was started; that was before I was compradore. All the time I have been compradore it has been called "Lao Sha-sun." My predecessor, Wang, had signboards up when I was assistant compradore; it had on it "English Merchants Sha-sun Foreign Hong." It was not changed to "Lao Sha-sun." It was simply "Sha-sun," not "Lao Sha-sun" on my signboard; my signboard had the same characters as the previous one. The last compradore used stamps something similar to mine, but he had not so many, because he did no business on his own account; he simply acted for the firm. I mean that the old compradore had only one shroff under him, while I had five; each Shroff had a stamp.  The old compradore had stamps similar to four of mine - having the same characters; I added the other two.  Stamp No. 4 is the same as the one in the document now shown to me dated twelve years ago; it is also the same as the ones on the opium bargain-note and the opium delivery-order now produced, dated three years ago; and it is the same as that on the two receipts for the gold.  I cannot tell whether the words "English merchants" on the signboard really frighten the Chinese into paying; I followed the custom in putting it on.  All the business I carried on in the house where I lived in Tientsin was carried on under the name of "Lao ha-sun;" but the confectioners and opium shops were carried on under other names.  Collins's business was in straw-plait, and people knew it was Collins's business, but I did it in Sha-sun's name. I used Sha-sun's stamp in Tientsin, and Collins's stamp at Collins's godowns in Tso Chu-lin.  Collins paid me in Hongkong Bank notes, and I paid the Chinese dealers with my own cheques, signed and stamped "Sha-sun." Sassoons knew that I did business in their name.  It was generally known in Tientsin that I traded as Lao Sha0sun; foreigners knew it as well as Chinese.  I used to get transit passes from the British and Russian Consulates for my business with Mongolia; Sassoons knew I was using their name for that business, because that name was on the transit passes.  The goods handed over in Chang Kiu-kou, Mongolia, were handed over not for the draft alone, but also for the gold.  The share in the Tien Yuen Bank was not transferred; it was handed over to the Heng-i-yu Hong, for Tls. 3,000.  I gave over the goods in my godowns to Sassoons because I owed them more than any other creditors; I gave other property to my other creditors.  Sassoons took the keys of the godowns; I was willing that they should do so.  The goods realised about Ts. 7,500.
  I always bought gold for myself; then if Sassoons wanted gold I sold it to them.  The gold I got from Heng-i-yu in March, 1884, for Lao-sha-sun I got at one month's credit; defendants paid me cash.  Chiao Ching-kwei is a respectable man because he is manager of the Heng-i-yu Hong' but you must not talk too much of respectability in business; you must look to a man's heart.  The shroff did most of my business with the plaintiff (Chiao Ching-kwei.) I frequently met Chiao Ching-kwei but we talked principally about the Mongolian business.  Of my eleven creditors the claims of two were in respect of gold; they have both sued the defendants.  The Heng-li Hong is not claiming for gold, but for money lent.  I am still a partner in the Heng-li Hong. There is really only one creditor suing for gold; the present plaintiff has made a mistake - he is really suing for fun.
  The defendants did bring a case against some Chinse opium dealers who had not paid; it was after my failing.  I never used the name "Lao Sha-sun" outside Tientsin. The defendants very seldom gave me cheques to pay for gold.
  The Court then adjourned for luncheon.
  On the sitting being resumed,
  Hoo Mei-pin, further cross-examined, said - There was no difference in the purchase of gold I made from the Heng-li Hong; they were all the same - one month's credit.
  Re-examined by Mr. Wainewright - I only got transit passes from Sassoons once a year.  The managers of Sassoons knew I was doing business on my own account; but they did not know I was doing it in their name.  Other foreigners did not know that I was doing business under my own account as "Lao Sha-sun," The middle men of the three gold dealers who have sued me wanted me to pay one-half; I promised tem one-third; but they said unless I gave one-half Ng Choy had told them to sue the foreign firm.
  By His Lordship - At the time I failed I owed the defendants Tls. 52,000, of which I paid about Tls. 20,000.  I still owe them about Tls. 32,000.  I did not put the characters for "English Merchant" over the confectioner's and opium shops, because people would not have believed it.  Messrs. Sassoon and Co. have security men for the Tls. 32,000.
  Hoo Fu-chun, examined by Mr. Wainewright, said he was employed by Hoo Mei-pin when Hoo Mei-pin was Sassoon's compradore; and it was he who was employed in the transaction of buying the gold which was the subject of this suit.  The plaintiff had first sent asking if they wanted any gold, and witness had replied no.  The witness called at the Heng-i-yu Hong and they asked him again to buy the gold, and he said he had not got the money.  They then offered to let him have it on credit.  The terms were arranged, and he bought the gold on credit and it was shipped to Shanghai.  It was understood that he was buying the gold for Hoo Mei-pin, and they gave him thirty days' credit, according to their custom when selling to Hoo Mei-pin.  When he bought the gold it was at Hoo Mei-pin's orders; he never knew whether it was for the foreign firm or not.  Sometimes he paid ready money; sometimes he got it on credit.  Sometimes the gold went to Sassoon's office in the Foreign Settlement; sometimes it was shipped to Shanghai.  This particular lot, the subject of this suit, was sent to Shanghai.  The plaintiff knew that the gold was for Hoo Mei-pin, because it was on one month's credit.  On the 1th day of the 11th moon he paid the plaintiff half the money due on the gold, and promised to pay the balance with interest, as soon as he could collect some money due to Hoo Mei-pin.  The plaintiff never said that he held the foreign firm liable.  
  After the failure, the plaintiff came to Hoo Mei-pin's office for money, and Hoo Mei-pin gave him a share in the Tien-yuen Bank; but he never heard the plaintiff, or any of his people, say anything about the foreign firm in connection with the claim.  He recollected the plaintiff sending some men to watch Hoo Mei-pin's godowns, and he recollected the dinner given by Hoo Mei-pin to his creditors.  Chiao Ching-kwei was there, and stayed from 4 o'clock till 11 or 12 o'clock.
  Cross-examined by Mr. Wilkinson, the witness said he was a cousin of Hoo Mei-pin's.  Hoo Mei-pin had told him that he would have to come here as a witness, and had said, "In case you are called aa a witness you must tell the truth." That was all Hoo Mei-pin had said to him about the case. Whether the gold was bought for the foreign firm or not it was bought in the same way; Hoo Mei-pin bought it and sold it to the foreign firm.  The only difference was that the foreign firm paid ready money for the gold in Hoo Mei-pin's office.  When he bought gold of the native dealers he only said Hoo wanted to buy it; the foreign firm was not mentioned at all. The usual custom was to have a moth's credit; it was very seldom they paid cash down.
  In answer to his Lordship, the witness said after the failure he had been employed collecting money due to Hoo Mei-pin; at present he had no employment.
  Further cross-examined, he said all the business in Hoo Meri-pin's office was done in the name of Lao Sha-sun.
  Hoo Mei-pin, recalled, in answer to Mr. Wilkinson, said it was about the 25th or 26th of the 1st moon last year, that the plaintiff and the other gold dealers told him that he must pay more than one-third of his debts next month; otherwise Ng Choy would get them to proceed against the foreign firm.  While he was in gaol he could come out at any time if he gave security to the gaoler.  He did say before, that the plaintiff never said he looked to the foreigners for payment; but he meant that the plaintiff never said so at the time of the delivery of the gold; but this was three months afterwards. The three gold dealers were not there together; they came separately.  After that the middle men always said they were going to sue the foreigners; they said that to frighten the witness into paying more than one-third.  They thought witness had money concealed and would not pay, and they knew that if they sued the foreigners, the foreigners would then come upon witness for the money, and he would suffer more than if a Chinese law-suit were brought against hm.  Witness thought if the foreigners proceeded against him he would be locked up all the time instead of being able to get out by giving security to the gaoler.
  The Court then adjourned till next morning at 10 o'clock.

 

Source: North China Herald, 24 April 1885

LAW REPORTS.

IN H.B.M.'s SUPREME COURT FOR CHINA AND JAPAN.

Before R. A. Mowat, Esq., Assistant Judge.

Shanghai, 18th April.

WU YU-SHAN v. D. SASSOON, SONS & CO.

  Mr. Wilkinson appeared for the plaintiff and Mr. Wainewright for the defendants.

  The Court opened at 10 o'clock.

  TONG YUEN JEAN, examined by Mr. Wainewright, said he was employed in a branch of Old Ching Chong's at Tientsin; he had been in that branch for four years. He knew Hoo Mei-pin; his office was in Hoo's place.  After Hoo Mei-pin failed, witness remembered Chiao Ching-kwei and Liu Tien-ying coming to his place, and wanting the money for gold, and also the money for furs.  The total was about Tls. 8,000. Hoo Mei-pin said he had no money, and gave them the Tien Yuen Bank share, which was placed against the debt for gold.  They then wanted the goods in the godown; but Ho Mei-pin said the foreigners had the keys of the godown, and he could not give them the goods.  They never mentioned the foreign firm as being liable.  He knew that Hoo Mei-pin was doing business on his own account; but he did not know that Ho used Lao Sha-sun's stamps for it.  Hoo Mei-pin was an agent of Old Ching Chong.

  Cross-examined by Mr. Wilkinson, the witness said he was paid by the firm of Old Ching Chong.  The firm dealt in the same goods at Tientsin as they did here.  Witness had nothing to do with selling them; that was done by Hoo Mei-pin; witness was book-keeper.  It was in Hoo Mei-pin's private reception room that he heard the conversation with regard to the Tien Yuen Bank share.  He had part of that rom.  He was quite sure that Hoo Mei-pin said the bank share was to stand against the gold, because the gold was due first.  It was not set against the fur money at all.  He could not say whether Hoo Mei-pin would be telling a lie if he said the share was given against both the gold and the fur money.  If Hoo were to say now that it was given against both gold and fur money witness would not believe him.  He had had no conversation with Hoo Mei-pin or anybody else about this case.  He arrived from Tientsin about half a month ago, and stayed in Ching Chong's store.  Hoo Mei-pin called on him, and he returned the call.  They talked about business at Tientsin, and Hoo told him that he would be called as a witness, and must tell the truth.  Witness was a friend of both parties.  He had never told anybody what he knew about the case.

  Mr. Wainewright put in a translation made by Mr. Bullock of Chiao Ching-kwei's petition to the British Consul at Tientsin, through the Customs Tao-tai.

  SUN YI TING, examined by Mr. Wainewright, said he was for eight years in Hoo Mei-pin's office at Tientsin.  He kept the books.  He knew Chiao Ching-kwei, and he knew that Chiao lent money to Ho Mei-pin, and that Hoo gave him receipts for the money, which witness wrote out.  In the 9th year Chiao lent him money ten times.  Hoo Mei-pin did business on his own account, and bought gold on his own account from the plaintiff, among others. He recollected the purchase of gold which was the subject of this suit.  The gold was purchased on Hoo Mei-pin's own account, and the plaintiff knew it, because the bargain was for one month's credit, and that was Hoo Mei-pin's credit.  He remembered Chaio calling every day after Hoo's failure for money until, on the 5th day of the 12th moon, Hoo gave him the Bank share.  Witness did not hear what was said. He remembered that goods in Mongolia to the value of Tls. 3,100 or Tls. 3,200 were transferred by Hoo Mei-pin to Chiao.

  Cross-examined by Mr. Wilkinson, the witness said Hoo Mei-pin always bought gold at one month's credit, but when the defendants bought gold from Hoo Mei-pin they paid cash down.  They got it a little cheaper from Hoo Mei-pin because they paid cash down, while Hoo got a month's credit from the gold-dealers.  Hoo never paid cash down.

  The Court then adjourned till Thursday morning, April 21st.

21st April.

  The court opened at 10 o'clock.

  Mr. Wilkinson intimated that he wished to produce rebutting evidence as to the so-called share in the Tien Yuen Bank which had been handed by Hoo Mei-pin to Chiao Ching-kwei.  The document had only just arrived from Tientsin, and he had not been able to get it translated; but he understood that it was a mere partnership agreement.

  LI KWEI-FEN was then called and examined by Mr. Wilkinson. He said he was formerly in the An-tz Bank.  The Tien Yuen Bank had been closed for more than a year; there was nobody connected with that bank to be found in Shanghai.  The paper produced (a paper which had been recognized by Hoo Mei-pin as the share in the Tien Yuen Bank which he had given to Chiao Ching-kwei in part payment of the debt) was a partnership agreement between Hoo Mei-pin and five others.  The capital contributed by Ho Mei-pin was Tls. 3,000 and by another partner Tls. 17,000.  It was to be divided into ten shares of Tls. 2,000 each.  If the bank had not been closed it would have been valuable; but as the Bank had closed it was of no value.

  Cross-examined by Mr. Wainewright, the witness said he made enquiries about the Bank beyond the French Concession. He knew something about the Bank when it was doing business; it carried on business near the Swatow Guild.  The man who was manager was not at present in Shanghai; witness was told so by a neighbour.  If solvent people owed the Bank Tls. 20,000 it would be worth something; but the debts had been collected and the Bank closed.  He had learnt this in the course of his enquiries.

  His Lordship said he should not come to any conclusion as to the value of the share on such evidence as he had before him.  If I were shown to be necessary to ascertain the value, it would have to be left to a subsequent enquiry.

  Mr. Wainewright hen replied for the defence.  He said he would not occupy the time of the Court by going through the evidence at any length, because he had gathered that his Lordship would in all probability read it for himself; and he did not propose to trouble the Court with any law, because he took it that the law in the case was quite familiar, and that the question was mainly one of fact.

  It appeared to him to be very much narrowed down to the question, "Did the plaintiff give credit to the defendants?" If it was held that he did, then the further issue became one of some importance, and first, "Did the defendants give the plaintiff good grounds to believe that their agent was authorised to pledge their credit in the case in question?" He thought, looking at the whole, the evidence must be taken as conclusive that the plaintiff - for the sake of convenience he would call Chiao Ching-kwei the plaintiff - knew perfectly well whom he was dealing with, and that Hoo was buying this gold on his own account.  He might take it as established that as a matter of fact he defendants did not buy this gold.

  His Lordship thought that was admitted.

  Mr. Wilkinson said he had not technically admitted it; but he would admit that the evidence seemed to show that such was the case.

  His Lordship said he should hold, upon the evidence, that as a matter of fact the defendants did not buy the gold.

  Mr. Wainewright, continuing said Messrs. D. Sassoon, Sons & Co.'s business was entirely an import business in opium and piece-goods; and they only occasionally bought gold for remittances in consequence of the comparative absence of banking facilities in Tientsin.  It had transpired that the plaintiff and the compradore Ho Mei-pin were old friends, though they differed as to the degree of intimacy between them.  Assuming, however, that they were tolerably good friends, or even without going that length, he thought it was quite clear that the plaintiff must have been perfectly well aware that the compradore Hoo Mei-pin was carrying on business of a very extensive scale on his own account.  The compradore was actually in the same line of business as the plaintiff - he was interested in a gold-dealing firm; and this fact could not possibly have been unknown to the plaintiff. The plaintiff had admitted that he lent the compradore money for the purposes in which he knew the compradore was acting for himself and not for the defendants - for buying furs in Mongolia- his credit was made use of.  The plaintiff had denied ever having made actual advances of cash to Hoo in Tientsin; but Hoo and his book-keeper both swore positively that the plaintiff had made many such advances - as many as ten in the last year in which Hoo was doing business.  The plaintiff, therefore, must have known perfectly well that Hoo was doing business on his own account - a fact which would have been further made evident to him by Hoo having at his place of business the signboards of these other firms besides the defendants'. Hoo had sworn positively that he told the plaintiff so; and in addition they had the evidence of the shroff who bought the gold, to the effect that he had at first refused it on the ground that Hoo had no money; and that he was then offered further inducement in the shape of long credit.  

  With regard to the comparative credibility of Hoo and the plaintiff, Mr. Wainewright contended that although Hoo had made one or two inaccurate statements he had corrected them in a reasonable manner. And his evidence had been practically unshaken.  The plaintiff, on the other hand, had, he submitted, stultified himself out of his own mouth.  The petition which had been put into the plaintiff's hands, and which he had read with such unction - evidently proud of his authorship - contained palpably most stupendous mis-statements - to call them by the mildest terms; for in that petition he stated that one of his assistants had delivered the gold at Old Sassoon's hong to the foreign head of the firm, who received it and gave a receipt with the firm's seal.  Then he stated in the petition that the foreign head of the firm paid him Tls. 3,570 in ready money; while he admitted in evidence that this money was not paid till a month after delivery.  Then in the petition it was stated that the foreign head of the firm agreed in person at Lao Sha-sun's hong that the balance should be paid after a short delay.  That was a gross mis-statement according to his own admissions, because in Court he stated at first that he had never spoken to Mr. Shekury, and afterwards that the only interviews he had with Mr. Shekury were in Hoo Mei-pin's office, through Hoo Mei-pin.  It was clear, therefore, that the plaintiff had made most gross mis-statements in his petition, and therefore, Mr. Wainewright submitted, he was unworthy of credit altogether.  

  Then he had sworn that he never lent money to Hoo; but Hoo and his book-keeper had sworn to the contrary.  Then he denied that he had watched the godown, and that he had been to the dinner given by Hoo to his creditors; and his evidence in these particulars had been contradicted point blank by the defendants' witnesses.  It might be argued that Hoo had an interest in clearing his employers of liability and protecting his sureties; but on the other and the plaintiff had a still more direct interest in fastening the liability on the foreign firm, because by so doing he was much more likely to get paid than if he fixed the debt on the compradore; and his evidence was therefore to be looked at with considerable mistrust.  So far as the evidence went, there had never been anything to lead the plaintiff to believe that any of the gold which Hoo bought from him went to the defendants, except so far as the stamps went; and with regard to that, if his Lordship believed in the evidence as to the loans, that would dispose of the stamps, because the plaintiff must have known that hose loans were not made to the foreign firm, and yet the receipts for those loans were, according to the evidence, stamped with the same seals. Mr. Wainewright contended that the compradore never acted as the agent of Messrs. Sassoon in purchasing gold; he merely bought gold at one price and sold it to the defendants at another price; he got cash from the defendants, but bought the gold on credit.  Then it was a remarkable fact that the other creditors with whom Hoo Mei-pin traded in the name of Lao Sha-sun had accepted his own settlement and had never brought any claim against the foreign firm.  There was documentary and other evidence that Hoo Mei-pin conducted his private business in the name of Lao Sha-sun, and there had been no evidence whatever in contradiction of this.  The reason why the gold dealers had acted differently from the other creditors had been explained - they were fortunate enough to get hold of a legal gentlemen who suggested that it would be a nice thing for them to sue the defendants.  

  Mr. Wilkinson submitted hat it was highly improbable that if the plaintiff had really given credit to the defendants he would have waited so long before applying to the defendants themselves; and he thought the evidence of Mr. Shekury on that point ought to be believed in preference to that of the gentleman who concocted the petition.  He submitted therefore that the plaintiff never did give credit to the defendants; and if the Court should find against him on that point, he would submit, on the second issue, that even if the plaintiff did think he was giving credit to the defendants, the defendants never gave the plaintiff good ground for so believing.  It was impossible to believe that the defendants ever authorized or knowingly permitted their compradore to conduct his private business in their name.  They were defendants in the matter, because it was impossible for merchants in China to prevent their servants from doing business in their name.  In conclusion, Mr. Wainewright submitted that even if he defendants were liable, the gold had been paid for when the compradore made over to the plaintiff goods in Mongolia to the value of upwards of Tls. 3,000, and a share in the Tien Yuen Bank in Shanghai, in which at the time the compradore had an interest valued at ls. 3,000. The goods in Mongolia were received by the plaintiff in February, at which time the money for the gold was due, while the draft against which he pretended that those goods were to be set was not due till he 10th or 11th March.  The compradore had distinctly sworn, too, that the goods were handed over in discharge of the gold debt in the first place and the draft afterwards.  And in any case he submitted that according to the ordinary law of appropriation the first item on the credit side of the account would go against the first item on the debit side, which was the cost of the gold; and they were therefore entitled to take advantage of this payment.

  Mr. Wilkinson then replied for the plaintiff.  He contended in the first place that the compradore was authorized to pledge the defendants' credit.  That had, in fact, scarcely been objected to on the part of his learned friend, who, though he had said something or other on the subject, had carefully abstained from bringing forward any authorities, because he knew that al the authorities were distinctly against him.  Mr. Wainewright had exercised a wise discretion, and had tried to make out the question to be one rather of fact than of law.  But the law of the case was perfectly clear, and he (Mr. Wilkinson) was quite prepared, with one or two exceptions, to go to the court on the evidence of the defendants themselves.  He contended that the compradore was the plaintiff's general agent for the purchase of gold; and he quoted from Smith's Mercantile Law and a number of other authorities in support of the contention that as their general agent the compradore could pledge the defendants' credit.  The question was not, as it had been put forward by his learned friend, one of whether the defendants held out and represented the compradore to the plaintiff as their agent; so long as there was a general holding out to the public of the compradore as their agent, they were bound by his action in any particular transaction of the same nature. A principal was liable for all the actions of his general agent which came within the scope of his general authority.  The agent in this case was undoubtedly authorized to purchase gold for the plaintiffs, and to pledge their credit.  The question was, did he pledge their credit? Mr. Wilkinson submitted that the case was as clear as it could possibly be - he did pledge their credit.

  Two or three witnesses were called who stated that the plaintiff knew that the gold was bought for Hoo personally, because the arrangement was such as was made when Hoo bought for himself, and such as was not usual when he bought for the defendants.  But all that disappeared under cross-examination, when it was admitted that there was no difference whatever between the manner of this transaction and that of other transactions when gold was bought for the defendants.  There was one statement, however, which if left un-contradicted, might have had some weight, and that was Hoo's statement that he told the plaintiff several times that the gold was purchased for himself and not for the defendants.  But when he was cross-examined, Hoo said that he had no conversation whatever with the plaintiff about the purchase until after the purchase was made and he found he was going to make a loss on t.  There was therefore mothing whatever to show the plaintiff that this purchase was made on Hoo's own account and not on account of the defendants.  It was true that Hoo's Shroff, who negotiated the purchase, said the plaintiff knew he was selling the gold to Hoo personally; but when he was asked how the plaintiff knew it, he said it was on account of the credit given; but then the shroff admitted that the credit given was exactly the same as when gold was purchased for the defendants, and admitted that he himself did not know, when he was purchasing gold, whether it was for the defendants or for Hoo himself.  His evidence as to what the plaintiff understood as therefore perfectly valueless.  

  Then they came to the question of the receipt.  The compradore was certainly authorized to give receipts in the name of the firm, and he did give a receipt in their name.  It was admitted that, whatever else "Lao Sha-sun" might mean, it meant "David Sassoon, Sons & Co." The compradore had authority to give such a receipt, he did give it, and it would require the very strongest evidence to show, in the face of that document, that credit was not given to David Sassoon, Sons & Co. They had a statement from the Shroff that when he spoke of "Lao Sha-sun" he meant David Sassoon, Sons & Co; but when he spoke of "we" he meant Hoo Mei-pin. "Lao Sha-sun" would therefore indicate to any person to whom he was speaking, the foreign hong.  But they had more than this.  They had on the face of the document a statement that it was not on behalf of Hoo himself, because it said not only "Lao Sha-sun" but "Foreign Firm of Lao Sha-sun," and it must be admitted that Hoo Mei-pin was not a foreign firm.  

  His learned friend had attempted to argue that gold was not a commodity that the defendants dealt in, and he supposed that this amounted to an argument that the compradore was not their general agent for the purchase of gold, but it was admitted that he bought gold for them on many occasions, and therefore that might be passed over.  It was not sufficient to show that the plaintiff knew that Hoo was doing business on his own account; he was just as much the general agent of the defendants whether he was doing business for the defendants only or for a number of other persons as well.  Then a point had been made of the plaintiff endeavouring to get money out of the compradore instead of going at once to the defendants; but Hoo was the man who paid all the accounts for the defendants, and the plaintiff naturally went to him for the money first. Mr. Wilkinson submitted that no amount of inference could be taken against the clear words of the contract - that it was a contract entered into with the foreign firm of David Sassoon, Sons and Co. Then with regard to the plea that the money had been repaid, he contended that the argument that the goods and share had been set against the debt for gold was open to the gravest doubt.  He asked his Lordship to believe that no such appropriation as that stated by Hoo to have been made had really been made.  The probability was that at the time when the payment was under consideration, the question of appropriation was not present to either party - certainly not to Hoo. There was no talk then about liability or anything else, and there was certainly no particular appropriation.  It was clear that Hoo was personally liable in the case of the draft, because that was signed in his own name, and not in that of "Lao Sha-sun;" and if there was no appropriation at all it was quite open to the plaintiff to make what appropriation he pleased, and to set those goods against Hoo's personal debt to him and not against the debt for gold.

  His Lordship reserved judgment.

 

Source: North China Herald, 1 May 1885


LAW REPORTS.
IN H.B.M.'s SUPREME COURT FOR CHINA AND JAPAN.
Shanghai, 29th April.
Before R. A. Mowat, Esq., Assistant Judge.
WU YU-SHAN v. D. SASSOON, SONS & CO.
  Hos Lordship gave judgment this morning as follows:
Judgment.
  In this case the plaintiff seeks to recover the sum of Tls. 4,861.98, being the balance of the price of certain gold sold in November, 1883, to the defendants, as he alleges, through their compradore. At the hearing it was established beyond dispute that the defendants were complete strangers to the transaction, which was one entered into by the compradore on his own account, and in respect of which he has throughout admitted his liability to the plaintiff.  The compradore, as appears by his evidence, was himself employed in business on an extensive scale, in the course of which he had very large transactions with the plaintiff. He having failed, however, shortly after the purchase, the plaintiff brings his action against the defendants, alleging that, whoever the real purchaser was, it was with the defendants he as dealing, and that it was to them and not to the compradore that he gave credit.
  The question thus resolves itself into one of the plaintiff's credibility - Is it the fact (as he alleges) that he was dealing with the defendants? Or was he (as is alleged on the other side) dealing with the compradore personally?
  Under the circumstances stated, it is obvious that I ought to entertain no reasonable doubt as to the truth of the plaintiff's assertion before I compel the defendants to pay for goods which indisputably they never ordered, which never came into their possession or control, from which they derived no kind of benefit, and the liability to pay for which, another person, without any suggestion of collusion between him and them, has from first to last fully admitted.
  At the close of the evidence, not only had the plaintiff failed to satisfy me that he considered that at the time he was dealing with the defendants and that he looked to them for payment, but I have come to the conclusion that the fact was the other way; nor has the anxious reconsideration of the case which it was only due to Mr. Wilkinson's able argument for the plaintiff that I should give to them altered my conviction on that point.  I find it impossible to reconcile the plaintiff's action after the failure of the compradore on the 29th December, with the theory that his debtors were the defendants.  That he should go in the final instance to the compradore to demand payment of both the balance due on the gold and of the furs (the latter an admittedly private transaction of the compradore's), I quite understand; but that he should make no application to the defendants for the price of the gold (as he himself admits) for a whole month and a half after the failure - that, on the contrary, he should be discussing the terms of a settlement in respect of both claims with the compradore, being willing to take one-third, but not content to take one-third, unless all the other creditors consented (and eight out of the eleven did) - that during this time he should demand and receive from the compradore a native bank-note and an order for goods from Mongolia, both the compradore's private property, against the two claims (which is putting it in the most favourable way to the plaintiff) - all this is to my mind utterly inconsistent with the notion that at that time he considered his debtor to be, not the bankrupt compradore, whom he admits he considered solvent, and whom accordingly he had only to sue to ensure his being paid if his claim against them were a just one.  His action, on the contrary, was that of a Chinse creditor dealing with a Chinese debtor - making a descent upon his establishment, watching the premises to prevent goods being taken away, and laying hold of all he could get to reduce the amount of the debt.  It would almost seem as it were only after he found that an asset (namely the bank share) which had been handed to him was less valuable than he had been given to understand it was, that he took the advice that there is evidence to show was given to him, of suing the foreigner if the compradore did not pay one-half of the claim.  Moreover, when he does, in pursuance of this advice, present a petition to his authorities against the defendants, we find it to be both in conflict in more than one particular with his statements in Court, and also to be in one important point untrue. In the petition he says, "One of my assistants delivered the gold at Old Sassoon's hong to the foreign head of the firm, who received it;" while in Court he says he delivered it himself to the compradore in person at his office (which is three miles from the defendants' hong.) Again he says in the petition, "On the 17th day of the first month of this year (i.e. the 13th February, 1834] I went .  .  .  .   to demand payment, when the foreign head of the firm in person agreed with me to pay after a short delay." The compradore, who is stated by the plaintiff to have acted as interpreter on that occasion - the plaintiff no being able to speak English, nor Mr. Shekury, the defendants' agent, Chinese - says, "Mr. Shekury and the plaintiff never met at my office, nor did plaintiff talk with Mr. Shekury at any time through me." Mr. Shekury swears, ""I never saw the plaintiff till in Court here; I never heard of this claim till [March] 184, and that through the Consul."  On these grounds then I have come clearly and distinctly to the conclusion that the plaintiff's allegation, which is at the foundation of his case - viz., that he was dealing with, and gave credit to, the defendants - is not bone out by the evidence; and it would be unnecessary to say more were it not for the receipts that were so much relied on by Mr. Wilkinson.  I apprehend, however, that when once I have come to the conclusion that the transaction was between the plaintiff and the compradore personally, the circumstances that the receipt bore the words, "Tientsin, Old Sassoon Foreign Hong," can no more help the plaintiff than the defendants would have been helped in the case of a transaction found to be one between them and he plaintiff had the compradore in that case impressed on the receipt the stamp of "Collins's Foreign Hong," or any other stamp that he was in the habit of using.  How he came to stamp the receipt in the way he did, is clearly explained by him in his evidence. He says it is the practice of Chinese compradores at Tientsin to use the Chinese stamp of their foreign employers in their own business, and that it was well-known to all the Chinese traders who dealt with him, plaintiff included, that he was so using his employers' stamp.
  The plaintiff denies, indeed his having any knowledge of the kind, but on this point I draw an inference from the evidence adverse to him.  It is to be borne in mind, too, that it is to the first transaction of all between the parties that we should look to ascertain what meaning the stamp on the receipt would convey to them, and, further, that the seller would not have to wait till he got the receipt after delivery to know to whom he had contracted to sell.  Now the first transaction took place in 1880, and in it and any others in that year the compradore was buying for himself, for it was not until March, 1881, that he made the first of the only two purchases that he ever made from the plaintiff for his employers.  What reason is there for supposing that in the case of the first purchase in 1880, or any subsequent ones in that year, he would state to the plaintiff, what was contrary to the fact, and represent that it was for his employers, and not for himself that he was buying; and if he did not, what would the plaintiff understand by the stamp on the receipt which he got in exchange for his gold except that the gold sold to the compradore had been received at the compradore's place of business?  And this would apply to all subsequent receipts, for they were always in the same form, and the evidence shews that there was nothing in the other circumstances of the transactions from which the plaintiff could know that any given purchase was ever made by the defendants' orders.
  It will be seen that in dealing with the question of the receipts, I have not made use of that passage of the compradore's evidence where he said, speaking of the ten promissory notes, to the amount in all of about Tls. 39,000, that he had given to the plaintiff in 1883 in respect of his business in Mongolia, "They were all stamped "Lao Sha-sun; they were all paid."  At the hearing I understood Mr. Wilkinson to withdraw the objection that he at first made to the receipt of verbal evidence as to the promissory notes without their non-production being accounted for, and it is thus that I have the passage in my notes.  As, however, it appeared in the course of the argument at the close of the case that he had not intended to withdraw the objection I have thought it better to deal with this part of the case independently of the statement in question.  I mention it now only lest there should be any further proceedings in the way of re-hearing.
  The question of fact in the case having been determined adversely to the plaintiff, the authorities cited by Mr. Wilkinson do not appear to me to have any application.
  There will be judgment for the defendants with costs.

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