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Colonial Cases

Ichinosake v. Whittall, 1886

[shipping - appeal]

Ichinosake v. Whittall

Supreme Court for China and Japan
Rennie CJ and Jamieson AAJ, 29 October 1886
Source: North China Herald, 3 November 1886


LAW REPORTS.
H.B.M.'s SUPREME COURT FOR CHINA AND JAPAN.
Shanghai, 29th October 1886
ON APPEAL FROM H.B.M.'s COURT FOR JAPAN.
Before Sir Richard T. Rennie, Kt., Chief Justice, and George Jamieson, Esq., Acting Assistant Judge.
TANAKA ICHINOSAKE and others, (plaintiffs and respondents) and E. WHITTALL (defendant and appellant) and cross appeal.
  This case which had been at hearing on the 19th and 22nd instant came up for judgment on appeal.  Mr. Wainewright appeared for the appellant.  The respondents were not represented by counsel.
  His Lordship in giving judgment said - In this case a suit was instituted in the Court below by the plaintiffs as owners of a certain steamer called the Kokue Sun.  The defendant by his answer put in issue the plaintiffs' title as owners and denied any indebtedness to them.
  The Court below held that the defendant was estopped by the previous judgment in a suit between the same parties from denying the plaintiffs' ownership, decreed an account, and on  the taking of the account ordered the defendant to pay the plaintiffs the sum of $2,760.22 with certain costs.  From that final decree the defendant has appealed to this Court, and there is also a cross appeal by the plaintiffs against the allowance to the defendant of certain disputed items.  
  We will deal first with the defendant's appeal.  He is dissatisfied with judgment on the following grounds - 1st, that the learned judge is in error in deciding that the defendant was estopped from denying the ownership of the said steamer was in the plaintiff; 2nd, the learned judge was in error in deciding that Shighama Katsumari was the agent of the plaintiffs in mortgaging the said steamer to the defendant and therefore was not the bailor of the said steamer; 3rd, that the ruling of the learned judge that the said Shigehama Katsumari was not the bailor of the steamer, was contrary to the evidence produced before the said Court; 4th; hat the leaned judge was in error in disallowing the  defendant costs of suit, and in taking the account as between mortgagor and mortgagee; 5th in taking the account, the learned judge was wrong in disallowing the defendant costs as between attorney and client in the actions of Tanaka and Yamamoto v. Whittall in the Japanese Courts, for the recovering of taxed costs of aforesaid suit.
  On the hearing of the appeal the appellant's Counsel very properly admitted that the utmost he could hope for, did he convince us that the judgment of the lower court was erroneous on the ground of estoppel, was that the case should be remitted to the Court below for a new trial.  We accordingly dealt with his application for a new trial, in the first instance.  The appellant's counsel urged on this head, that there was really no estoppel as against the defendant by reason of the judgment in the first suit, because the learned judge's decision in that suit was mainly founded upon the then plaintiffs having, whether owners of the vessel, or not, given their consent to her being mortgaged to the defendant, and he argued that the question of ownership was not material to the decision of that suit, and was not in fact then decided. Manty authorities were cited by the learned counsel but we do not think it necessary to review them, as we are of opinion,  that the question of ownership was material in the first suit and was as a matter of fact, then decided by the lower court.
  Plaintiffs' ownership was decidedly put in issue by the defendant's answer (Paragraph 2, exhibit B.) and it is sufficiently clear from the judgment of Mr. Justice Hannen in that suit, that he was satisfied that the ownership had been made out.  In one place he speaks of the "plaintiff Yamamoto Banshishi, and the other owners of the ship."  In another place he speaks of "Yamamoto Banshishi, the plaintiff, and the other co-owners," and when we read the same learned judge's actual judgment on the question of estoppel we find him saying:-
"The judgment in the former suit estopped the defendant from denying that Yamamoto and others were the owners at the time of judgment He alleged that they were not in the former suit.  Had they not made out their ownership, the case would have fallen through.  The judgment shows that they proved ownership, and they cannot by the same person be called on again to prove it."
  It is then clear that the learned judge must have had it in his mind to decide the question of ownership in the first suit and he tells us that he actually did so.  This would appear sufficient to dispose of the point, but we ought, perhaps, to add that we do not find any authority to support, and that we do not concur in the argument of the appellant's counsel; to the effect that a defendant is, or ought to be, less affected by a prior judgment on the same point than a plaintiff.  The broad doctrine, that the judgment of a Court of concurrent jurisdiction directly upon the point is as a plea, a bar, or as evidence conclusive between the same parties upon the same matter directly in question in another Court, seems to us to apply with equal force to plaintiff and defendant.
  On our intimating to appellant's counsel that our opinion was adverse to him on the question of estoppel, he admitted that he had no case to press on the second and third grounds of appeal, and it remains to us therefore, only to discuss the questions raised as regards costs.
  The first point was as to the defendant's costs of suit, and of taking the account as between mortgagor and mortgagee.  It appears to be clear from the evidence offered, that much, and as it would seem quite needless opposition to the decree for an account was offered by the defendant.  Being aware, as we think he ought to have been aware, that he was estopped from denying the plaintiffs' ownership he should certainly have either rendered an account to the plaintiff before suit, or failing that, have at least, consented to a decree for an account.  As he adopted neither of these courses, we think he learned judge in the Court below was justified in giving costs against him up to the date of the decree.
  As regards the costs of taking the account, which were not given against, but disallowed to him by the learned judge, we have felt some doubt.  It appears to be clear enough as was contended by the appellant's counsel, that as a general principle, a mortgagee is entitled to the costs of an account out of his security, and that the mere fact of his having claimed a larger sum than that to which he is entitled will not debar him  from obtaining them.  It is also clear that on disallowance of them he is entitled to appeal.  We are not in possession of the grounds upon which the learned judge of the court acted in disallowing costs in this instance.  But it is clear that the defendant after having offered needles obstruction to the account being taken at all, eventually brought in a sum which was not only excessive as a whole, but, was so made up as to show the plaintiffs to be indebted to him in a sum of over $1,000, while as a matter of fact, the judgment shows him to have been indebted to them to the extent of nearly $3,000. Certain of the sums claimed by the defendant, also, such as $500 for commission on the sale of the vessel appear to have been improper and the observations of Lord Justice James on the case of Cotterell v. Stratton (L.R. viii, Chancery Appeals, 295) show that conduct of this nature is to be taken into consideration when the allowance of a mortgagee's costs is in question.  We do not think therefore that we should be justified on this appeal in finding that the leaned Judge of the Court below has wrongly exercised his discretion in regard to this point.
  The remaining question as to costs is that the learned judge should not have disallowed he defendant costs as between attorney and client in the original action of the plaintiffs against him, and of his suit in the Japanese court for the recovery of the taxed costs awarded him in the original suit.  We think the defendant is entitled to his full costs as between attorney and client in the original suit.  He was successful in defending that suit, and on the principle which guides our Courts in regard to such cases, he is entitled to be reimbursed any expenses properly incurred by him in retain to the maintenance of his security.
  In regard to the costs incurred by him in the Japanese Courts, we do not think he is entitled to recover.  Considering that the judgment of the Court below which we now uphold shows that the security he had in and at the time of his taking those proceedings was more than sufficient to cover the actual amount due to him including the taxed costs in question we are clearly of opinion that these proceedings were unnecessary, and it being a well-known principle that a mortgagee is not to be given the costs of needles litigation, he cannot have them in this instance.
  In the cross-appeal, the appellants, (plaintiffs in the court below), say that they are dissatisfied with the judgment in so far as it allows the respondent two sums of $577.66 and $50.60 on the grounds that he said sums id paid by the respondent in respect of the pledged property, were paid without authority and contrary to the appellant's instructions, and that the same were improperly allowed in item I. of the account.
There would appear to be some grounds for the appellant's contention.  The letter from the plaintiffs' agent Shigehama to the defendant and endorsed by him (Exhibit O in the records) certainly shows that it was understood monies were not to be disbursed by the defendant to the Chinese builders, as these monies directly or indirectly were disbursed without the consent of Shigehama and it is admitted that that consent was not obtained in these instances.  In answer to this, however, the defendant in his evidence says that he did not think Shigehama's consent was necessary after the termination of the first case, that he could not find Shigehama who had in fact "bolted," that the larger of the two sums was advanced at such as time as made it properly included under Item I, and that the smaller item although advanced at a later date was actually expended in paint of the vessel.  On the whole, and considering that the learned judge of the court below, who took the account himself, appears to have been satisfied by the defendant's explanation, we do not think we should be justified in interfering with the decree on the grounds set forth in the cross appeal.
  In the original appeal the decree of the Court below must be varied by the reduction in the amount ordered to be paid, to the extent of $380, being the extra amount of costs we think the defendant is entitled to have allowed him.  The cross-appeal will be dismissed, and there will be no costs to either party.

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