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Colonial Cases

Martins v. Thirkell, 1888

[wages - slander]

Martins v. Thirkell

Supreme Court for China and Japan
Mowat ACJ, 10 July 1888
Source: North China Herald, 13 July 1888

Shanghai, 10th July.
Before R. A. Mowat, Esq., Acting Chief Justice.
  This was a claim for $730 balance of wages.  The defendant denied the indebtedness.
  Mr. Harold Browett appeared for the plaintiff; the defendant conducted his own case.
  The solicitor for the plaintiff, before the hearing was proceeded with, mentioned that he only had the defendant's statement of account in the case that morning and a cursory perusal of it showed that it differed in some material points from his client's statement.
  The defendant said that there was a second petition, a claim of $1,000 for slander brought against him by the same plaintiff and he asked was he entitled to apply for the dismissal or withdrawal of that case before the present one was proceeded with, for the two claims were closely mixed up.
His Lordship said that he could see how they were connected. He was only going to try one of the claims now, and if the other as not brought forward in the prescribed time, the defendant was entitled to have the petition dismissed. One was an action for slander and the other a claim for salary.
  Mr. Browett having read the petition and answer, called the plaintiff,
  RUFINO FRANCISCO MARTINS deposed - I am a Portuguese subject living at No. 3, Chapoo Road, I am a printer at present out of employment, and was first employed by the defendant in 1883 as overseer and first-proof reader, and I also kept some of the books.  My salary was to begin at $100; and remained at this till shortly after the Cathay Advertiser, a morning paper was started, when it was increased to $120 per month. The Cathay Advertiser was started about the beginning of 1886, and collapsed in September of the same year.  When the Advertiser was started I was living in a very small house and my family was increasing and their accommodation becoming cramped, and I then went to Mr. Thirkell and told him that and that I wanted to take a large house and he gave me $20 a month more.  I then took a larger house in which I am still living. Mr. Thirkell has never since that time said anything about my salary being reduced.  
  Since March 1887 my alary has been $120 per month.  In December 1887 I received $126 - $6 over my salary by an oversight.  I have not received my salary regularly.  I always had a difficulty in getting money from the defendant, who often replied when I asked for money that he had none to give me.  From the month of October to December 1887 I did not receive any money from the defendant, and I had to raise a loan at heavy percentage, and pawn my jewels to enable me to live while I did not get a single cent from the defendant.
  In September 1887 the defendant went to Chefoo and left me to sign bills, pay accounts and collect money; and an advertisement was inserted in the Courier to that effect. On his return on the 15th October I showed him in the safe a roll of bank notes amounting to about $400, at which he was very much pleased.  I paid the wages of the staff for August, while he was away, and I also paid myself $80 for the month of August.
  To His Lordship - I only paid myself $80 because there was not enough money in hand to take more.
  Hi Lordship expressed his surprise that the plaintiff had not paid himself in full when he had so much money in hand.
  The plaintiff in reply to a further question by his lordship said - Up to September, 1886, his wages were paid regularly, but for October, November and December he got no wages.
  His Lordship - The Advertiser collapsed in September, and that is probably why wages were not paid.
  Witness in reply to his Lordship - There was no agreement of any kind that witness's salary would be reduced to $80 after the collapse of the Cathay Post and Cathay Advertiser.  We generally commence to pay the wages about the 20th of the month, and pay on day by day till the money ceases to come in.
  Cross-examined by defendant - You never formally engaged me.  I was in the Courier before you took it over.  I am not employed now.  I have been employed since I left the Courier office.  My wages were increased shortly after the Cathay Advertiser was started, partly in consequence of the extra work and partly in consideration of house rent.  I had to work every second night at the Advertiser.  I am living in the same house yet.  My landlord is Mr. D. M. Henderson; it formerly belonged to Mr. Lalcaca.  I asked you were you going to give me the increase when Mr. Lalcaca wanted an agreement about the house, and you said: take the house and I will give you $20 a month more." You (defendant) were not the editor of the Advertiser and had very little to do with it.  I went to you about the increase even though I was working with the other gentleman every second night. I always kept my own account of wages with the compradore, and made out the bills and compradore orders which the defendant signed.
  About September 1887 the gentleman who had managed and run the Cathay Advertiser left Shanghai.  In December 1886 Mr. Macbeth balanced my accounts.  I have no recollection of having an interview with you on a Sunday morning in February 1887.  I remember you mentioning to me some time in 1887 - it may be about February - that you had heard something about me from Tientsin.  You did not ever tell me to leave the office; if you had I should have looked for another situation.  I did apply in Tientsin for another situation, but that was because I found it difficult to remain in your office.  I never asked you to write to Japan about another situation.
  I know Mr. Macbeths writing (shown book) "March 1887. Paid R. F. Martin's salary for February $120," is in his handwriting.
  A cash book was handed to his lordship in which appeared the foregoing entry, but there was no entry for wages paid to the plaintiff in February.  The defendant explained in reference to this that according to the plaintiff's statement he received wages in February, and it appeared in a rough cash book.  The plaintiff kept the books up to that date, when a professional accountant was called in, and he (plaintiff) put the wages down in bulk.  The entry of $120 was put in the book to show that his salary of $120 terminated then.  The next item of salary to Martins of $59, for March was on account.
  His Lordship said that would not show the salary was reduced to $80.
  The defendant in reply to his Lordship - From the 1st January 1887 the office was worked on a different principle.  I got rid of the compradore and paid everything in cash myself.
  Cross-examination continued - The money in the safe after your return from Chefoo could not have increased as you at once commenced to take it out to make payments.  From the day you went away I managed all the cash accounts, receiving money from the shroff and paying it away.  It is a fact that after you told me to leave the office that I had to give you vouchers for money paid as far back as eight months ago.  When you left for Chefoo there was no money in the safe.
  To His Lordship - At the time I took the $80 for the month of August there was no money then.  It all came afterwards and I wanted to keep as much as I could till Mr. Thirkell's return.  I received $150 sent by you from Chefoo.
  Cross-examination continued - When I went to Mr. Brown the first time, I told him about the money you owed me.  I told him that I wanted to make two distinct cases, one for "scandal" and the other for the wages due to me.
  The defendant - Your Lordship, nothing was said to me about the balance of wages till the other action for slander was threatened.
  His Lordship said he supposed the money became due when the plaintiff left the office.
  Cross-examination continued - I resigned in consequence of the slander.
  Defendant - In consequence of something I said about you in the office.
  Mr. Browett objected.
  His Lordship said he did no see how the question could show whether the wages were $120 or $80 per month.
  Re-examined by Mr. Browett - After Mr. Thirkell came back from Chefoo he made payments personally to the compradore and to me.  Mr. Thirkell used to keep his accounts on small pieces of paper and often had to ask the men how much he paid them.  If he had kept the accounts properly he would know that without having to ask.
  The defendant - I deny that your Lordship.
  Cross-examination resumed - I kept the wage books [produced] from September 1887 to May this year in my desk. (Papers handed to defendant and identified by him as being in his handwriting, showing the amount of the money in the safe at different dates.) I did not give them to you, you took them out of my desk.
  The defendant - The witness gave them to me and luckily I preserved them, your lordship.
  Cross-examination resumed - I never asked you in February 1888, not to bring in an outsider to take my place, that I would like to do the work.  That is an untrue story.  When I called to see you last month - having been told to go to you by my brother-n-law - I told you that the rough copies of the accounts from which the clean book was made were in my desk.  I did call to see you again without being called and wanted you to give me a testimonial to enable me to get another situation; but you never gave it to me.
  Mr. J. G. THIRKELL was then sworn and deposed - I took over the Courier office in 1882 or 1883. Plaintiff was then on the staff as a printer, proof-reader and assistant in making out bills.  His salary was then $100 a month, which I continued to pay till after the Cathay Advertiser and the Cathay Post had been started.  These papers necessarily increased the duties of everyone in the office, and he brought me a compradore's order ad asked me to fill it up for $120 instead of for $100 for his monthly wages.  After some consultation with another gentleman connected with the papers I gave it to him; that was the way the increase came about.  It was with Mr. Cowen, who was the part proprietor, that I consulted.  The plaintiff continued to receive that sum until the end of February 1886. In September or October 1886 the Cathay Advertiser collapsed.  Mr. Cowen had asked me if I would let him have Mr. Martins, who was a good practical printer, three nights a week to assist in making up the Advertiser, and I allowed him.  It was in consideration of this extra work that he received the increase.  Indeed after the collapse of these papers it was only a question whether the Courier office would continue to go on at all, and I engaged a professional accountant to come and arrange the affairs of the office up to date.  He did so, and when I looked over the books I found that I owed Martins $360 for wages for the months of October, November and December.  In February, 1887, I called Martins and spoke to him, pining out that I owed him$360 for 1886 account; that I then had Mr. Macbeth and himself in the office and that I could do without one of them.  This was on a Sunday and in the office, when he ordinarily would not be there.  I told him that Mr. Macbeth was willing to stay in the office, and that as he had started a new set of books it would be better if he remained.  I spoke to Martins about different things, amongst others about getting him a position in Tientsin where some of my men had gone and also about getting a place for him in Japan, and said that I would do my best for him in that way.
  He brought forward his long and faithful service in the Courier and spoke of his large family and ultimately I told him that before I could do anything I would have to arrange with Mr. Macbeth.  In a few days Mr. Macbeth told me that he was going back to a position he had formerly held in Shanghai.  Martins said he was willing to remain for $60 a month and to pay him the $360 as the money came in each month.  Mr. Macbeth did leave and I told Martins that he would have to do the accounts and that the terms would be those named in the interview of the Sunday.
  I reply to His Lordship - The Cathay Post was running then, but it was a weekly paper and like the Temperance Union gave no trouble.
  Continuing his evidence - Mr. Macbeth had been in the office about four months.  Mr. Macbeth finished the accounts at the beginning of 1887 and during the next three months was arranging the affairs of the office, and did most valuable work.  He was getting $100 a month.  Martins was getting $120. There was one man too much and I had to get rid of one, and Martin's salary was reduced to $80. In fact I agreed in the interview on the Sunday to give him $20 every Saturday.  When I came back from Chefoo I asked him how the office had gone on and whether there had been any trouble.
  He told me he had paid anything necessary and had a balance of over $400 in the safe upon which fact I congratulated him and said that I could never do so well while I had charge of the financial affairs, and I also said that he had done so well he would continue to do the work.  On looking through the accounts I found that he had only taken $80 for himself and nothing of the balance of $400, whereupon I told him that he had better take some of it while there was any money there, and to continue to take some every month till the balance was wiped out.
  From that time I had very little to do with the accounts of the office which were kept by Martins.  I was perfectly satisfied.  Everything went right up till near Christmas, when money is scarce in all newspaper offices, and Martins came to me and asked me if I would give him a security note for him to get some goods for Christmas at the foreign stores, as foreign stores do not give credit to Portuguese.
  In February certain reports were brought to me about four of my men, and from that time, I exercised more supervision about the payment of the men, and I kept a rough memo, while Mr. Martins paid them and kept the books.  Mr. Martins was sitting by my desk one morning of last race week when I asked one of the compositors, when he came to get paid, if it was true that he had been stealing the type. And it was then occurred the little altercation that resulted in Martins leaving the office.  If he had come to me like a man and helped to find the thief who was stealing the type, there would have been none of this trouble.  Martins sent in his resignation on the 3rdof May and left on the 17th May.  He gave a month's notice, but I was anxious to get rid of him and he left on the 17th.
  A number of letters were read by Mt. Browett at his Lordship's request from which it appeared that on the first dated the 7th May, Mr. Browatt in behalf of his client demanded $620.27 balance of wages due up to 30th April last, and the defendant although in his letter in reply did not say that Martins' wages were only $80 a month, said he was disposed to meet him in a liberal spirit.
  His Lordship - After you received that statement you could see that the wages were down at $120 a month.  Why did you not then mention that the wages were only $80?
  Defendant - I was so much surprised, you will notice the different tone in my letters to Mr. Browatt after that.
  His Lordship - You were so much surprised that you did not mention it.
  Defendant - I wanted him to leave the office at once.
  His Lordship sad he thought the fact was one which the defendant would have mentioned at once.  Defendant continuing said that on the 3rd June the plaintiff came to him and said he wanted to settle all this business amicably.  He [defendant] had been threatened with an action for slander, but had not been served with the petition.  Defendant told him that he could not settle it unless plaintiff produced a letter from Mr. Browett.  The plaintiff said that if he was reinstated in his office he would not go to see Mr. Browatt any more, and the action would be taken out of Court.
  His Lordship said he would quite understand that the man was anxious to get employment.
  The defendant said he mentioned this to show that he could have settled the case by reinstating the plaintiff.
  The defendant was cross-examined by Mr. Browett about his business with his compradores, and at this stage his Lordship intervened and suggested that the case might be reasonably settled by the defendant agreeing to pay the plaintiff at the rate of $100 a month, beginning when the extra work came into the office.
  The defendant said there was something more important behind the case only for which he would never have come into Court.  That was a proposed amalgamation of the two evening papers, the Mercury and Courier and which he refused to assent to.
  Mr. Browett objected to this statement.
  Mr. Clarke, the proprietor of the Mercury who was reporting the case, addressing his Lordship said the Mercury had nothing to do with it.
  Mr. Browett said that he could not accept the proposal made by his Lordship as it would bring the amount due to his client down to $190.
  His Lordship intimated that it appeared to him that when the plaintiff was master of the situation in September last, and when he paid all the wages and only paid himself $80 that it was strong evidence that he conceived himself at the time only entitled to $80 a month.
  Defendant in reply to his lordship said that the $400 in the safe after his return from Chefoo, would have been more than sufficient to pay all the wages of the office for a month.
  After some further cross-examination by Mr. Browett, the case was adjourned till Saturday next to enable certain vouchers and rough accounts to be produced.


Source: North China Herald, 27 July 1888



Shanghai, 21st July 1888

Before R. A. Mowat, Esq., Acting Chief Justice.


   The hearing of his suit in which the plaintiff, Mr. R. F. Martins sued J. G. Thirkell, proprietor of the Shanghai Courier for over seven hundred dollars balance of wages, was resumed this morning. .  .  . 

   Mr. Browett in answer to a question by his Lordship said that he had since sent in his account.

   Mr. Browett said he thought that there was only a difference of about $25 in the account. His client admitted that he owed Mr. Thirkell the difference, because Mr. Thirkell sometimes paid certain bills for him.   .  .  . 

   His Lordship said he would deliver judgment in a day or two.


Source: North China Herald, 4 August 1888

Shanghai, 27th July, 1888
Before R. A. Mowat, Esq., Actin Chief Justice.
His Lordship in giving judgment said - This case is one of some difficulty, because of the total want of any independent evidence.  The question is whether the plaintiff's wages were reduced, as from March 1887, from $120 to $8o a month.  There is no evidence beyond that of the parties themselves, and that is in direct conflict.  Nor is there any written evidence on the point, and from the way in which the plaintiff was paid his salary, viz., by varying instalments and at irregular intervals, no assistance towards solving the difficulty is to be had.  I am therefore thrown back entirely on the probabilities of the case.  
  Now, while the defendant asserts that the sole reason for the original increase of the plaintiff's wages from $100 to $120 in the beginning of 1886, was the additional work entailed on the plaintiff by the publication pf a second paper from the defendant's office, the plaintiff admits that this was a part of the cause.  That circumstance would make it probable that there would be a reduction of wages, sooner or later, after that paper ceased to be published.  I confess I at first thought it improbable that the reduction should be as much as $40 a month, because the plaintiff would then be receiving less than he originally had.   But he defendant has satisfied me that from his point of view all the reduction was necessary; it was a question, he says, whether the Courier could go on at all, and it could only go on with large reductions in the expenses of the staff.  The plaintiff's salary, too, it must not be forgotten, was for as long as five months after the cessation of the paper, while the defendant was having he financial position of the Courier investigated, continued at the rate of $120.
  This circumstance would, I think, reconcile the plaintiff somewhat to a reduction, especially if the other alternative were non-employment altogether.  On the whole I consider the defendant had given me a straightforward and reasonable account of the matter, and there is nothing to charge him with except a want of the ordinary business precautions which a consideration of his own interests would have suggested to him, and which would have made this suit impossible. That he is very careless in money matters, is shown by the fact that, when he came to make up his accounts during the course of the suit, it appeared that what with payments made to the plaintiff himself, and payments made to other parties to whom he had become responsible for the plaintiff, the plaintiff was (on the basis of an $80 salary) indebted to him in $142.42 - a sum, I imagine, he has no chance of recovering, and which, I think, he deserves to lose.
  To turn now to the plaintiff's case.  Is it as consistent and probable a story as the defendant's? For if it is, then, as the burden of proof falls on the defendant, the plaintiff will succeed.  I cannot say that I am at all satisfied with it.  In the first place he denies everything, which is generally to deny too much.  He denies that a reduction of wages, or the possibility of his discharge, was ever mentioned between him and the defendant.  On this point I consider the defendant a far more trustworthy witness.  Then the plaintiff has given several inconsistent explanations of why he paid himself only $80 for September at a time when he was left in sole charge of the business, with authority to pay everyone, and when he was paying all the other employees in full.  And none of his explanations are satisfactory. The best is the one that came not from him but from his solicitor, who reminded me that defendant, on leaving for Chefoo, had told plaintiff not to take more than $80 a month. But I should have expected the plaintiff, if his wages were what he says they were, to have replied at once to such an order - "Why am I not to have my full wages of $120?"
I observe here, in passing, that I do not infer from this remark of the defendant that the plaintiff's wages were more than $8o per month. I understand it in the sense of an instruction to the plaintiff that though he was left in charge (which was at his own request), he was not to consider himself entitled on that account to more than his regular salary. But assuming even that for any reason plaintiff did not pay himself while his employer was away, I cannot understand his not making a distinct effort - having regard to his pecuniary position when he was paying $5 interest a month on a loan of $100 - not to get from his employer the arrears of his wags, or a portion of them, on his employer's return to Shanghai, when he was able to shew over $520 in the safe.
  There will be judgment for defendant but without costs.

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