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Colonial Cases

Va Sun Kee v. Middleton, 1891

[land law]

Va Sun Kee v. Middleton

Supreme Court for China and Japan
Hannen CJ, 3 December 1891
Source: North China Herald, 4 December, 1891

Shanghai, 3rd December.
Before chief Justice Hannen.
  This was a claim by a Chinaman against Mr. Osborne Middleton to recover Tls. 1,629, the balance of purchase money of a piece of land.
  Mr. H. S. Wilkinson appeared for the plaintiff; defendant conducted his own case.
  According to the petition, defendant agreed to buy from plaintiff certain land situated at Shanghai, measuring 3 mow, 3 fun, 8 li, the property of plaintiff, who in January, 1890, delivered to defendant the usual bill of sale. The defendant had paid Tls. 230, being expenses incurred in and about the sale, and there remained due to plaintiff a balance of Tls. 1,629, which defendant refused to pay.
  Mr. H. S. Wilkinson, for the plaintiff, said there was a further sum of Tls. 225 paid by defendant to a broker named Dzionk, and by the latter to the plaintiff, who was willing to accept the money as from defendant.
 Mr. Wilkinson then observed that the law in the case was very clear. If money is paid to the agent of the owner of real estate, it is for the purchaser to show that the agent is authorised to receive the money. The learned counsel then quoted cases in illustration of this principle, remarking that there was no evidence to show that Dzionk was an authorised agent, much less that he was authorised to receive money.
  After a short discussion as to the mode of procedure, His Lordship thought it would save time if defendant opened his case.
  Defendant was accordingly sworn and deposed that he knew Dzionk alone in the matter, and saw nothing of the plaintiff until six months after he (defendant) had disbursed what money he had already paid. It was the custom in Shanghai for sales of land to be made through a broker, the principals never meeting. The fact that plaintiff made no claim on defendant when the transfer was completed showed that Dzionk was authorised. Defendant paid some of the money to Dzionk, and Tls. 581,84 into the U.S. Consulate, he believed for Chinese officials.
There was no Va Sun-kee in existence, he having died some ten or fifteen years ago. Defendant contended that any responsibility for the money rested solely with the plaintiff, who was the first employer of Dzionk. A man named Wa Kung-da, who was really the plaintiff, brought defendant a bill of sale (or perpetual lease) in June, 1889. Defendant took this to the British Consulate, where it was examined by Mr. W. R. Carles, who pointed out one or two erasures in the document and said he did not think the Taotai's deputy would accept it, and Dzionk requested defendant to take the bill of sale to the U.S. Consulate, where an entirely new one was drawn up, so as to be one which the Taotai's deputy would accept.
  In connection with this document, defendant paid by Dzionk's authority, Tls. 584, which defendant understood was for Chinese officials. Defendant submitted to his Lordship that if Chinese could bring suits of this kind after a title deed had been issued by a Consulate, half the title deeds in Shanghai would be worthless, and many more actions of this kind would be brought by the Chinese. In was generally considered in Shanghai that when a foreign title deed had been issued the title to the property was clear.
  Examined by Mr. Wilkinson, defendant said Dzionk told him it would be a very easy thing to get a title deed from the U.S. Consulate. With regard to an item for the cost of removing graves from the land, defendant said Dzionk agreed to move the graves within one month. Defendant thought Dzionk was recognised by Mr. Emens, at the U.S. Consulate, as the lawful representative of the owner. Dzionk had effected a former sale of land  to defendant, and had done it  satisfactorily, so that defendant thought that in the second transaction Dzionk was the legal representative of the owner.
  Maximilian Francis Dzionk, called by defendant, stated - I originally purchased the land in question Weh King-da. I was the owner of the land in the transaction with defendant. I produce a receipt showing that I paid Tls. 225 bargain money. I subsequently received from defendant at the U.S. Consulate a cheque for $408, which I at once handed over to the Chinaman from whom I bought the land.
  Cross-examined -  The graves were not removed till January, 1891, and defendant was delayed in constructing houses until then. I understand defendant claims Tls. 1,440 damages for this delay. The original value of the land was Tls. 1,1813.29. Plaintiff has received at different times Tls. 8952.65, leaving Tls. 860.64 due to him.
  Mr. Wilkinson proceeded to call the plaintiff and offered his own clerk, Mr. Dzu Kit-foo, as interpreter.
  Defendant objected, and his Lordship said he could not expect defendant to accept Mr. Wilkinson's clerk as interpreter.
     Mr. Wilkinson submitted that the plaintiff was entitled to have an interpreter supplied by the Court.
  His Lordship said the Court would provide an interpreter in criminal cases, but in civil actions the parties must provide their own interpreters. In this case of course of defendant objected to the learned counsel's clerk acting as interpreter, the objection must be sustained, and the case adjourned for an independent interpreter to be obtained.
  Defendant - Can a man who has been convicted criminally in a Chinese court come into a British court and give evidence?
  His Lordship - If some person is called before me whom you say is a criminal, and you object to his evidence, it is for me to decide.
  Defendant - Then I object to his (plaintiff's) evidence on that ground.
  His Lordship overruled the objection.
  Defendant - Well, your Lordship, to avoid an adjournment I shall be quite willing to have your Lordship's decision on the evidence that has been given, and your opinion as to whether I have acted honourably.
  His Lordship - Yes, Mr. Middleton, but you will observe that you have given all your evidence. Of course one side is willing to abide by the decision of the court when the whole of its evidence has been given. It may be that Mr. Wilkinson has evidence to give.
  Mr. Wilkinson said that if defendant was willing to take a decision on what had already been stated, he (Mr. Wilkinson) was prepared to ask at once for a decision against the defendant. The learned counsel proceeded to point out that while the witness Dzionk considered that he had bought the land and sold it to defendant, the latter treated him as a broker. The consequence of accepting that theory was that the sale was between plaintiff and defendant.
  After some further discussion
  His Lordship said he would do his best to come to a decision, and he would let the parties know if he desired to hear further evidence or argument.
  Adjourned sine die.

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