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Colonial Cases

Chang Sung Foo v. McCaslin, 1893


Chang Sung Foo v. McCaslin

United States Consular Court, Shanghai
Emens, 18 September 1893
Source: North China Herald, 22 September, 1893

Shanghai, 18th September.
Before W.S. Emens, Esq., Vice Consul-General, and Messrs. D. C. Jansen and Charles Lehmann, Associates.
  Judgment in this case was delivered this afternoon.
  At the opening of the proceedings Mr. G. K. H. Brutton, for the plaintiff, asked to be allowed to say a few words to explain away the second agreement produced by defendant. Two agreements were signed on the same date, that which was put in by defendant and Pan Fung-chee having been completed before that by which plaintiff was engaged as compradore was signed. But it having come to the notice of Pan Fung-chee that defendant had no money, he went to the Taotai and had the agreement cancelled, and it was then that McDonald, on behalf of defendant, got the plaintiff to execute a similar agreement.
  His Honour said that was a matter of extra evidence. In coming to a conclusion the Court had no difficulty about the plaintiff's agreement whatever. He would deliver the judgment and after that, if Mr. Brutton saw fit, he could file an affidavit setting forth any errors that might be in it. The judgment was based on the evidence that had been brought before the Court at the hearing and was as follows:
  This case was heard September 12th and 13th. Mr. G. K. H. Brutton appeared on behalf of the plaintiff. Defendant was without counsel.
  The plaintiff set forth in his petition that on or about the 3rd October, 1890, an agreement which was signed, sealed, and delivered by an agent for the defendant on the 14th of February, 1891, was entered into between defendant and himself at Tientsin, whereby the plaintiff was engaged by the defendant as compradore, and as such compradore he advanced various sums of money on defendant's behalf and that a balance of Tls. 1210.49 remains due to the plaintiff.
  From the testimony advanced it appears that the defendant started business in Tientsin on the 3rd October, 1890. He employed one McDonald to look after his business there and engage a compradore named Pan Fung-chee.  Subsequently McDonald in the firm name, "E. McCaslin," but without informing defendant, engaged the plaintiff as compradore, the two signing an agreement, which is a reproduction of the Pan Fung-chee agreement, on the 14th of February, 1891. It is doubtful if McDonald was within his authority in making the agreement, but the Counsel for plaintiff contends that defendant subsequently ratified McDonald's act by making payment to the plaintiff. These payments were made in Shanghai, whither plaintiff had brought defendant. The payment of Tls. 270 was made by cheque, and defendant claims it was paid to Pan Fung-chee, whom he recognised as his original compradore, but who denied all knowledge of that name, when cross-examined by the defendant and claimed to be Li Yung-pu.  However, he was present when the cheque was paid, and the Court is of opinion that McCaslin naturally thought he was the man to whom the payment was made.
  But later, when the defendant paid the plaintiff $130, he appears to have considered himself under obligation to him. Two separate receipts in Chinese were given in acknowledgement of these payments both bearing the name of Chang Soong-foo, the plaintiff.
  Putting the only construction one can on the contract of 14th February, 1891, the plaintiff was to furnish the funds for carrying on the business in Tientsin, which was nominally the defendant's. Paragraph 5 of this agreement is "Accounts to be compared monthly and receipts granted for the account owed by either party whichever may be." The plaintiff's creditor cannot be excused for disregarding this part of the agreement. The only signed account produced (Ex. B.) was signed by McDonald, and Chang Soong-foo's name does not occur in it.  It is as follows [not transcribed.]
  The Court is satisfied that the plaintiff has advanced money on behalf of the defendant, therefore there will be judgment for plaintiff with costs, subject to the production by plaintiff of accounts which can be understood, and supported by such vouchers as businessmen usually require, to be produced within one month from date, otherwise the suit will be dismissed.
(Signed) [Vice-Consul General & Associates.]
Mr. Brutton asked what accounts did the court require.
  His Honour said there seemed to have been a number of shipments from Tientsin to Shanghai, and from Shanghai to Tientsin and there must be  quite a series of accounts between the parties from the date upon which  the agreement was signed and the date upon which plaintiff ceased to act as compradore.
  Mr. Brutton pointed out that the plaintiff did produce a book of accounts at the hearing and the defendant, if he disputed those accounts, ought to have cross-examined the plaintiff on them.
  His Honour - Those accounts you say are correct, but how do you connect Chang Soong-foo with them? His name does not appear in them once and they might be a statement of accounts with anybody.
  Mr. Brutton - How do you account for the receipts the plaintiff has?
  His Honour said that according to the agreement that had been referred to, the accounts were to be signed once a month, and plaintiff must produce those accounts in order to recover.

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