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Colonial Cases

Sharp v. Baessler, 1890


Sharp v. Baessler

German Consular Court, Shanghai
16 October 1890
Source: North China Herald, 17 October, 1890

Shanghai, 16th October, 1890.
Before Herr von Loehr (Vice Consul-General) and Messrs. Gipperich and Boning (Assessors.)
  The hearing of this case, which was before the Court on the 7th and 14th inst., was resumed. Mr. R. E. Wainewright appeared for the plaintiff, and defendant conducted his own case.
  At the opening of the proceedings, the President, observing the representative of the North-China Daily News present, mentioned that according to the law of 5th April, 1888, it was provided that publication of the proceedings could be prohibited by order of the court when the public order or safety or morality of the State would be endangered by such publicity.  He (the President) thought the representative of the Press might remain.
  Mr. Wainewright then proceeded to address the Court on behalf of the plaintiff, and urged that defendant's contention - that his partnership in that unfortunate venture, the Ella, was illegal - had nothing to do with the issue.  It was a well-known principle that when a person not a British subject came to have a share in a British ship, that ship ceased to be British; but it was equally well known that this law was constantly ignored in China; and defendant had not doubt been interested in British ships before and knew this. There was certainly no obligation on plaintiff's part to say anything to defendant on the point. Defendant had money in his hands and helped himself, not because he was frightened but because it suited his convenience. The legality or illegality of his part ownership had nothing to do with the matter. It was no justification for taking Mr. Sharp's money.  However, Mr. Sharp was now prepared to make this offer - that if defendant would deliver up the receipt given to him by plaintiff, the latter would recognize defendant's appropriation of plaintiff's money to clear himself out, and plaintiff would take over the defendant's share.
  After considerable discussion the President asked defendant if he was willing to enter into any arrangement in a friendly way.
  Defendant said he had never denied that he was a bona fide partner up to the time he found he could be so no longer; but he objected to pay for repairing damage to the ship after that.
  The President said defendant must declare definitely whether or not he would accept the offer made by Mr. Wainewright.
  Defendant said he was willing to pay the amount as acknowledged by Mr. Sharp in the draft statement, Tls. 149.18.
  The President thought it was worthless after this to expect a settlement, as plaintiff claimed thousands of taels and was only offered Tls. 149.
  In reply to Mr. Gipperich, defendant said he had never written to plaintiff asking for permission to use the tea money to cover defendant's losses.
  An interval here took place, at the suggestion of the President, to enable the parties to examine certain statements of account prepared by Mr. C. H. Dallas.
  On the reassembling of the Court, Mr. Dallas stated that certain items had been agreed upon, but that one of Tls. 863 due to plaintiff was disputed. Plaintiff claimed a share of repairs and loss on working the Ella, and interest on tea advances, which defendant declined to admit.
  Defendant said that, not being legally a partner in the ownership of the ship, he declined to pay any portion of the loss.
  Mr. Wainewright - But you don't deny that you would have taken your share of the profit, if there had been any?
  Defendant - Yes, if I had been allowed.
  Defendant further stated that he claimed for commission on the purchase of the Ella under the rules of the Shanghai Chamber of Commerce. He was entitled to 5 per cent. but had only claimed 2 per cent because the steamer had been worked at a loss.
  Mr. Wainewright rejoined that defendant was not entitled to charge commission at all against his co-owners.
  At the close of the evidence, the Court adjourned till Monday next for the consideration of judgment.

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