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Colonial Cases

Hung Tah v. Schlichting, 1891

[sale of goods]

Hung Tah v. Schlichting

German Consular Court, 1891
21 September 1891
Source: North China Herald, 25 September, 1891

Shanghai, 21st September.
Before Messrs. M. von Loehr, Vice-Consul, and Siers and Lemke, Assessors.
  This was an adjourned hearing of a cross-suit in which the Hung-Tah firm of piece goods and foreign sundries dealers sought to recover Tls. 716.90 from H. Schlichting, merchant and commercial agent, in respect of four unsettled transactions, known between the parties as the "Blue," "Chains," "Scarlet" and "Green," accounts for merchandise consisting of watch-chains and dyes of various colours imported by defendant for plaintiff. The petition of plaintiff stated that defendant holds one case of chains, ten cases of scarlet and twenty-five cases of green colour, the property of plaintiff, which he refuses to deliver.
  Defendant has furnished to plaintiff accounts showing a balance of Tls. 606.75 owing to defendant by plaintiff, who claims to hold the cases of goods as security for the amount.
  Defendant in the said accounts charges plaintiff with 16 vases of blue as delivered to him on September 3rd, 1889, and has credited him with Tls. 800 whereas in truth he only delivered 4 cases to the plaintiff, valued at Tls. 192, and defendant has therefore overcharged plaintiff to the amount of Tls. 608 in this matter.
  Defendant charges plaintiff with 16 cases of blue as delivered to him on March 3rd, 1890, valued at Tls.768, whereas plaintiff only got 15 cases and defendant in this matter has therefore overcharged plaintiff to the amount of Tls 48. Defendant has further wrongfully not credited plaintiff with Tls. 9.25 for samples; nor has defendant credited plaintiff with commission, making altogether the sum of Tls.716.90.
  In January this year defendant sued plaintiff in the Mixed Court to recover the sum which defendant then alleged was due to him by plaintiff, and to compel plaintiff to take delivery of the goods. Now plaintiff denies being indebted to defendant at all and claims free delivery of the goods. The suit was adjourned by the Mixed Court magistrate in order that the parties might refer the claim to arbitration.  Defendant has wilfully prevented such arbitration, and by huis delay in the settlement of the case caused plaintiff much loss and damage.
  Defendant in his statement acknowledged having four open accounts, as alleged, with plaintiff, and also having one case of chains, 18 cases scarlet dye and 25 cases of Green, for account of Hung-Tah, but these are hypothecated to the bank. Defendant never refused delivery of these but insisted that payment in full should be made by plaintiff according to local custom before delivery. Defendant admitted having handed to plaintiff's counsel, statements of these four accounts which are strictly in conformity with defendant's books, and which show a balance of Tls. 676.76.
  The 16 cases of blue dye stated to have been delivered to plaintiff have been properly delivered to one of plaintiff's employees and plaintiff received the landing orders for them, and thereupon defendant's responsibility ceased. Plaintiff never gave notice till July 11th, 1891, that he had only received 4 of the cases, and it would be impossible for defendant after that interval to find out anything about them, as the employees he had at the time of the delivery have all left him. Defendant on the other hand had no reason to doubt the correct delivery of the goods, for the landing order was given by defendant's wharf coolie to plaintiff's men, that the latter might bring the goods to the godown. The 16 cases were, defendant is sure, opened in defendant's yard or godown by an employee of plaintiff's in the presence of defendant's coolie, box by box, to ascertain the amount of leakage, when 298 bottles were found broken and credited to plaintiff with Tls. 81.13.
  On March 3rd plaintiff received 16 cases of blue in which there were 180 broken bottles which he returned to defendant with the empty case, and this is how plaintiff makes out that he only received 15 cases in that transaction. The 180 broken bottles were credited to plaintiff with Tls. 49 on March 31st.
  Mr. H. S. Wilkinson appeared for plaintiff and defendant conducted his own case. Mr. J. Rief, of Messrs. Sienissen and Co. was retained to give his opinion as an expert.
  The litigants today agreeing to divide the two smaller sums, the issues were reduced to the dispute about the 12 cases of blue, valued at Tls. 716.90, which plaintiff alleged had not been delivered.
  Mr. Schlichting, examined by the Vice-Consul, deposed that the cases were brought to the godown at the instance of plaintiff.  He (Mr. Schlichting) did not give a receipt for them, or know whether they were delivered, and he could not be responsible. The old compradore was responsible, and should have been sued, if anybody.
  A Chinese clerk in the employ of the Hung-Tah hong stated he had paid the Tls. 800 to Mr. Schlichting but had only got delivery of four of the 12 cases, and plaintiff was unable to get possession of the remaining 12. The defendant keeping plaintiff waiting day after day for them and finally going to Formosa without surrendering them. When defendant returned to Shanghai, plaintiff again applied for the goods, but was told he could not get them without paying more money.
  A coolie formerly employed by the plaintiff deposed that he remembered his employer sending him one afternoon to defendant to take delivery of 16 cases of goods. He hired two wheelbarrow men and went, but only selected four cases of dye, and told Mr. Schlichting that he had only got four instead of16.
  The case was adjourned till Monday next for the production of further evidence.
23rd September.

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