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Colonial Cases

Se An-chan v. Kirby, 1887

[breach of contract]

Se An-chan v. Kirby

United States Consular Court, Shanghai
Kennedy, May 1887
Source: North China Herald, 13 May 1887

Shanghai, 16th May.
Before Gen. Kennedy, Consul-General, Acting Judicially.
  This was a suit instituted by Se An-chan alias Joe against Phillip Kirby, Manager of Webb's Marionettes, to recover the sum of $154.  It appeared that the parties entered into a contract by which he defendant was to give his entertainment in the LaoTan Kwei theatre in the Hupeh Road, the plaintiff advancing $300 to ensure an honest account of the returns and to pay such incidental expenses as advertising, printing programmes, gas, electric light, license, etc., and to receive in return 30 per cent of the gross proceeds.  He claimed that the defendant left Shanghai owing the amount stated and sought judgment against him for the sum.
  The answer of the defendant was briefly that there was a written contract between him and the plaintiff, of which the latter failed to perform his part, and the defendant alleged that he had paid the plaintiff $85 more than was due to him under the terms of the contract.
  His Honour observed that the evidence for the defendant was purely documentary; and that Mr. Webb, the proprietor of the Marionettes, had left security with the court in case judgment went against him.
  The plaintiff was cautioned and in reply to the Bench said, that the defendant had asked him to find a Chinese theatre to give his performance in, and he rented the Lao Ta Kwei at $210 a week.  Plaintiff paid defendant $300 as security for the receipts, and was to receive in return 30 per cent of the nightly proceeds.  The $300 was to be paid back to plaintiff.  There was no written contract with plaintiff.  It was with some other Chinaman.  He was not to furnish anything except the theatre for the performances, neither gas, license, printing, or anything else.  He could not say how much Mr. Kirby paid out for these things, but he (plaintiff) only got in all $385, some odd cents.  He lent defendant a carpet and a curtain, the latter, which the defendant failed to return, he valued at taels 10.  Mr. Kirby gave the receipts for two night to witness who admitted that he went into the business hoping to make something out of it.
  His Honour read a memorandum of a contract made on the 4th inst. between the defendant and plaintiff, by which the latter was to advance the $300 before mentioned, and take 30 per cent of the gross takings of the entertainment which was to begin on the 4th May, and continue for two weeks.  The plaintiff agreed to pay the cost of the license, programmes, advertising, gas, electric light, ushers, etc.  Mr. Kirby was to receive the other 70 per cent, and the settlements were to be nightly after each performance.  Sundry bills were also put in evidence to show that the plaintiff had failed to pay for the attendant expenses mentioned in the agreement, and that the defendant was in consequence out of pocket some $176.   Finally, the defendant proceeded to show by documents that he had paid the plaintiff in all $385, after which the theatre was closed, and nothing further transpired between them.
  Hs Honor in giving judgment - I have looked into this matter, and if the regulations permitted me, I would make the decree in a Chamber, and not in open Court.  But the 83rd Regulation requires that all proceedings of the court shall be public.
  The contract between the plaintiff and defendant is here evidently one of speculation, the defendant undertaking to have an honest accounting of the receipts on the payment of $300 by the plaintiff, who was to furnish the necessaries for keeping the theatre open, such as license, light, ushers, programmes, advertising, etc. In consideration of his advancing this $300, and complying with the other particulars of the contract, the defendant was to allow him 30 per cent of the earnings of the theatre.
  According to the testimony of the plaintiff, the theatre was kept open only two nights and the entire receipts amounting to $208 were turned over to him.  By the memorandum of the defendant, it appears that he had paid over $176 which the plaintiff should have paid, and altogether $385 was acknowledged as having been received by the plaintiff, which would leave a balance of $85 due to the defendant.
  But as there is no counterclaim set up in the action it is presumed that the defendant does not claim this amount, and is willing to cry quits.  The defendant, as appears from the testimony, took with him two curtains belonging to the plaintiff, valued at Tls. 10, for which a demand will be made.
 The judgment of the court is that the petition be dismissed with costs.
  The plaintiff who spoke English only imperfectly and declined the assistance of the court interpreter, mentioned that the theatre was open for more than a week, and that Mr. Kirby had kicked his plaintiff's) shroff downstairs.
His Honour said he could not help him as it was clear he went in on a mere speculation, and all he could do was try and recover his curtains from the defendant.

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