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Colonial Cases

Shun Mai Sung v. Pollak, 1892


Shun Mai Sung v. Pollak

Austro-Hungarian Consular Court, Shanghai
23 December 1892
Source: North China Herald, 30 December, 1892

Shanghai, 23rd December.
Before Consul-General von Haas, and Messrs. Bottu and G. Krensir, Assessors.
  This was an action by Shun Mau-sung, formerly compradore to Mr. I. Pollak of Shanghai, against the latter for Tls. 923 odd, being money advanced and interest upon same. The hearing took place on the 13th and 14th inst.
  Mr. G. K. H. Brutton (for Mr. W. V. Drummond) appeared for the plaintiff, and the defendant conducted his own case.
  Consul-General von Haas delivered judgment this afternoon as follows:-
  Plaintiff claims Shanghai Tls. 923.15 and defendant is ordered to pay the sum with interest at the rate of 6 per cent per annum from the date of judgment being delivered; vide ss 107 and 104 Allgemeine Gerfichtsordnung (General Law of Procedure) and also to pay the costs of Court, vide ss.24 of the law of 16th May, 1874.
  Grounds: Defendant has acknowledged the correctness of the plaintiff's claim being the amount of advances made from time to time by the latter while in the employment of the former as compradore, refused however payment on account of an alleged breach of contract and withholding of documents on the plaintiff's part.
  The breach of contract is pointed out to have arisen, firstly from paragraph 4 of a contract made between the two parties on the 1st May &c., which reads: "The said compradore agrees to advance all monies for business purposes, taxes. Godown rent, coolie hire, duties, freight and insurance." In the beginning of August a.c. plaintiff refused to pay duties for goods arrived; and secondly, because plaintiff suddenly left defendant's employ as compradore without warning.
  Now paragraph 5 in the contract says: "The account between the said I. Pollak and the said compradore to be taken monthly and any balance there may be due either side to be paid at the end of each month," and it has been shown, that the defendant omitted to do this - as proof we have a promissory note signed by the latter on the 25th July a.c. for Tls. 5623.17 in favour of plaintiff.
  Repeated requests for payments of rent, wages, and duties made afterwards by the defendant, the plaintiff granted, as we see by an account dated 1st August a.c. for Tls. 914.21 in favour of the latter. Whether now plaintiff, because he refused to make further advances, was suddenly dismissed by defendant, - as he maintains, - or as defendant asserts, whether plaintiff left his employ suddenly, is not for this Court to decide, because defendant could not retire his promissory note, could not repay advances already due and thus broke one of the stipulations distinctly binding on him.
  To this Court it is equally of no moment to solve the question raised, when the contending parties discontinued their business relations, whether on the 5th or middle of August.
  Regarding the point raised by defendant, viz., the withholdment of documents, the Court finds, that plaintiff when he left defendant's employ, took with him three bills of lading, of which defendant asserts to have been ignorant at the time and that these three bills were taken away from his desk. Defendant, in order to regain possession of the documents applied to this Consulate, which communicated with the Mixed Court, which however refused to comply with the petition on the ground that Shun Mai-sung (the plaintiff) was entitled to retain possession of these documents as a mortgage until Pollak (defendant) had repaid the advances made.
  Now looking at these three documents, we find that the goods mentioned in these bills were deliverable to order. One of these bills of lading was mortgaged to the Hongkong and Shanghai Banking Corporation, and the two others to the Deutsche Asiatische Bank - consequently not the property of defendant.; the purloining of same - which was not proved - did not and could not bring plaintiff any advantage; besides plaintiff modified his retaining the above bills according to his contract, paragraph 5 which stipulates: "It is expressly agreed to between the said parties that all goods and monies belonging to the business be handed over to the compradore."
  Under "Goods" must also be understood any merchandise imported under bills of lading.  The Court has come to the conclusion that it cannot see in the withholdment of the bills of lading by plaintiff an act of malfeasance.
  Defendant admits the correctness of the account of Tls. 914.21 due by him by his own writing on same "account correct up to date" and besides by acknowledging his indebtedness before this Court.
  The defendant not having proved that plaintiff broke the contract and any malfeasance by taking away the documents, the Court has to apply ss.107 of Allgemeine Gerichstordnung.
  Now we come to the counter-claim of defendant against plaintiff, amounting to Tls. 5,000 - as compensation for loss of credit, the confidence of the banks, Chinese constituents, &c., which the withholdment of the documents in question by the plaintiff has caused defendant to suffer and to give up his business. The Court is of opinion that defendant has not brought any proofs to substantiate such a claim, neither by defendant's own declaration nor by his witnesses Wu Chu-yen and Yen Kung. Witness Wu Chu-yen simply testified that he stood security for the repayment of Tls. 624.17. Witness Yen Kung testified that defendant and himself had disagreements regarding the delivery of 25 cases of Dyes, not having the bills of lading in hand, but that after two days and some formalities being gone through the goods were delivered.
   That, taking everything into consideration, defendant has suffered loss by plaintiff's refusal of making further advances, by leaving his employ, as compradore of the business, without any warning whatsoever and refusing to refund the bills of lading in question, is undeniable. This loss consists in the opinion of this Court, in the banks refusing defendant any further credit and that his Chinese constituents have withdrawn their connections.
  To determine, however, and to substantiate such a loss in figures or that such loss was caused by plaintiff's action, defendant has not proved, and the Court finds, that ss 104 in the Allgemeine Gerichtsordnung must be applied to defendant's counter-claim of Tls. 5,000.
  The Court leaves it at defendant's option to proceed against plaintiff at the latter's Court of Law, in which case any documents of this cases, now in the Court's possession, are at his disposal.
  Whereas plaintiff is entitled to the amount of his claim, viz. Tls. 914.21 and whereas defendant has not proved his counter-claim of Tls. 5.000 the Court orders defendant, according to ss 24 of the law of 16th May 1874, to pay the costs of these proceedings.

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