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Colonial Cases

Sun Mow v. McCarthy, 1890

[goods sold and delivered]

Sun Mow v. McCarthy

Supreme Court for China and Japan
Rennie CJ, 23 June 1890
Source: North China Herald, 27 June, 1890

Shanghai, 23rd June.
Before Sir R. T. Rennie, Chief Justice.
  This was a claim by a furniture dealer carrying on business as Sun Mow & Co., to recover from the defendant, a widow, the sum of $206.o7 for goods supplied.
  Mr. H. Browett appeared for the defence.
  In her answer the defendant pleaded that the articles purchased between 18th Jan., 1888, and 5th Dec.1889, were purchased by her on behalf of her husband, Jeremiah McCarthy, who died on the last mentioned date, and that he alone was liable for the payment of the same. The defendant admitted that she had paid to the plaintiffs on account of goods supplied during her husband's lifetime sums of money amounting altogether to $10.07 on account of goods supplied to her since her husband's death. Letters of administration of her husband's estate were granted to her on Feb., 28th, 1889. The estate was not sufficient to admit of all the creditors being paid in full, and the estate which had come to her hands had already been applied by her in due course of administration in satisfaction of her husband's debts, and that the plaintiffs had received their property except the sum of $21 which the defendant paid into Court. She also paid 5 dollars into Court in satisfaction of the claim for goods supplied in the month of May, 1890.
  The plaintiff was called and formally swore to the debt having been incurred.
  In cross-examination by Mr. Browett, plaintiff said he remembered hearing of a notice to the effect that all creditors of the estate were to send in their claims to Mr. J. D. Clark; but the defendant told him not to send in his claim with the others and she would pay it. In May, 1890, defendant came to his store and said he should be paid. At the same time she incurred further debt of $5 for a curtain-pole. Defendant told him the other creditors had accepted 20 cents to the dollar.  He remembered going to see defendant to ask her to sign a paper giving him authority to receive money from the auctioneer out of the sale of the defendant's furniture.
  By the Court - He knew when he supplied the furniture that defendant was living with her husband.
  His Lordship - Then why did you expect to get more than the other creditors?
  Plaintiff - She told me she was buying the things for herself.
  A native in the plaintiff's employ gave evidence to the effect that he was present when defendant came to the store "at the beginning" and said she was buying the things for herself.
  His Lordship said he did not believe this.
  Cross-examined by Mr. Browett - He did not know whether defendant called the plaintiff to the end of the store so that they could not be overheard. He understood very little English.
  Annie McCarthy, the defendant, examined by Mr.  Browett, said - I paid plaintiff $50 on June 5th, 1888, and subsequently two sums of £10. Since my husband's death I paid $20 for which I have not received credit. When he came to my house and received money he never gave me a receipt. Altogether I paid $180. Plaintiff came to the door two or three days after the notice appeared, and said he did not wish to put in his claim with the others, as he knew he would get very little. I promised to pay him from time to time, and since then I have paid $70. The other creditors agreed to received 20 cents in the dollar, and none of them troubled me except the plaintiff, who often came as many as three times a day. On one occasion I pawned my watch and chain to pay him $25, as he was annoying me so much. At last I decided to sell my furniture, take a small house, and pay him and other creditors. After I had given instruction s to the auctioneers I went to plaintiff's store, called him on one side, told him what I was going to do, and said I would pay him as much as I could. Two days after the sale plaintiff walked into my bedroom and asked me to sign a paper authorising the auctioneer to pay him $130,07.  I refused to sign it. On the same day his coolie came up to me and asked me where I lived, telling me he had been instructed to follow me. I have no private income and never had one. I never bought anything without my husband's knowledge. The money I paid was out of his pocket.
  At the conclusion of the evidence, Mr. Browett said he did not think it was necessary to address the Court on the case.
  His Lordship said it was quite clear to him that the plaintiff had been trying to obtain more money than the other creditors, knowing that he ought to have gone in with them. The claim had been pressed in a very harsh and unjust way, and in fact there was no real claim, plaintiff having already received as much as the other creditors. The plaintiff would obtain the $20 paid into Court, but as to the rest of the case there would be judgment for the defendant, with costs.
  On the application of Mr. Browett, the amount paid into Court was ordered to be detained as security for costs.

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