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Colonial Cases

Rosenzweig and Co. v. Kingsmill, 1893

[marriage rights - agency]

Rosenzweig and Co. v. Kingsmill

Civil Summary Court, Shanghai
Jamieson AJ, 20 May 1893


Supreme Court for China and Japan
Hannen CJ and Jamieson J, 10 June 1893


Source: North China Herald, 26 May, 1893

Shanghai, 20th May.
Before G. Jamieson, Esq., Assistant Judge.
  In this case, Messrs. Rosenzweig & Co., Ltd., of Nanking Road, sued Mr. T. W. Kingsmill for $44.48, for goods supplied to Mrs. Kingsmill during 1892 and 1893.
  Mr. H. Rosenzweig appeared as plaintiff, and Mr. H. P. Wilkinson represented the defendant.
  Mr. Henry Rosenzweig, the plaintiff, stated  that he supplied the goods as set out in the account produced to the amount of $44.48. Mrs. Kingsmill had admitted the accuracy of the bill. She went into the store and said the bill was all right. Mrs. Kingsmill had consulted her legal adviser, Mr. Stokes, who witness believed had corresponded with Mr. Kingsmill on the subject. Plaintiff had also seen Mr. Stokes, and had been advised to take out the summons. Mrs. Kingsmill had dealt with plaintiff for many years, and the bills were usually sent to Mr. Kingsmill's office. Sometimes they were paid from Mr. Kingsmill's office and sometimes by Mrs. Kingsmill. On 17th February, Mr. Kingsmill went into plaintiff's store and said he would not be responsible for any debts contracted by Mrs. Kingsmill. Plaintiff was not claiming for any goods supplied since that date, but as a matter of fact Mrs. Kingsmill had made further purchases and had paid for them herself.
  Cross-examined - He believed Mrs. Kingsmill had previously bought goods to the amount set out in the bill in as few a number of days. Plaintiff could not say who paid the bill, whether Mr. or Mrs. Kingsmill; the bills were given to the Shroff and plaintiff could not tell who paid them.  Sometimes the Shroff had said that on presenting bills at Mr. Kingsmill's office he had been told to come again. When plaintiff sent in the original of the present bill, Mrs. Kingsmill came in and told him to send it to Mr. Kingsmill's office, adding "the bill is correct and is signed."  Plaintiff had found a cheque of Mr. Kingsmill's dated October, 1891, paying an account of Mrs. Kingsmill's, but witness could not say whether Mr. Kingsmill had paid bills since.  The Shroff collected the money and witness could not say positively, but he was almost sure subsequent bills had been paid by Mr. Kingsmill. Up to China New Year plaintiff had no idea of the relations between Mr. and Mrs. Kingsmill, when they became public property.
  His Lordship - I think, Mr. Wilkinson, if you will excuse me, you are wasting time. I see no reason why the witness, when a lady comes in and says "send me the bill" should take that as an intimation of the withdrawal of credit by the husband.
  Mr. Wilkinson - I say that on the evidence given so far there is no case.
  His Lordship - There is no doubt about this case. The course of dealing for seven or eight years has been to give credit to the husband.
  Mr. Wilkinson - The evidence is that up to 1891 Mr. Kingsmill paid the bills, but since then a separate course had been adopted.
  After some further cross-examination,
  Mr. Wilkinson, on behalf of the defence, addressed the Court, and referred to authorities in the law. He contended that of a husband suitably provided for his wife it was not necessary in order to avoid liability for her debt that the husband should go round and say that he would not be responsible for his wife's debts. If a man makes an allowance to his wife, apart from public knowledge, then for the trader to make him liable, the trader would have to prove absolute notice from the husband to supply the goods, or that his wife was in absolute need.
  His Lordship could not accept the contention of Mr. Wilkinson as affecting the present case.  In the cases referred to the point in dispute was one affecting original dealing, but in the present instance there had been trading going on for seven or eight years. If Mr. Kingsmill had withdrawn his credit, he had only to go to the shop, and say: "If you give any credit to my wife please trust her and not me."
  At this stage the case was adjourned until Thursday.
25th May.
  This case,  .  .  .   was resumed and concluded today.
.  .  .  
  Mr. W. H. Anderson, one of the trustees of Mrs. Kingsmill's settlement, which was made in 1885 after the marriage, was called to prove the amount. He said that the allowance to Mrs. Kingsmill was between $80 and $90 per month.  There had recently been a good deal of repairs executed upon the property from which the allowance was derived, and this had reduced it.
 Mr. Albert Algar, employed in Mr. Kingsmill's office, said he generally dealt with Mr. Kingsmill's accounts. He produced a cash-book showing that on the 11th October, 1891, a cheque for Tls. 30 was paid to Messrs. Rosenzweig.  He could find no entry of any subsequent payment to them, and he had not since 1891 seen any accounts which had been sent in by Messrs. Rosenzweig and Co. In the petty cash book for 2nd March, 1891, was an entry for an amount to Mrs. Kingsmill with the names of certain stores.  That arose in this way. Mrs. Kingsmill told witness she wanted to pay some small accounts, and she gave him a memorandum of the amounts. He totalled them up and gave her the money. Before 1891 witness used to pay Messrs. Rosenzweig's accounts when they were initialled by Mr. Kingsmill, but since then he had not paid Messrs. Rosenzweig anything.
  Mr. T. W. Kingsmill, who was next examined, said that since the beginning of 1892 he had not seen any accounts which Messrs. Rosenzweig had sent in.  In the early part of 1892 the money deriving from the trust was reduced by repairs to the house in Carter Road, and witness then from time to time gave Mrs. Kingsmill sums of money, and when he went away last year he opened credit for her.  Early in 1892 he asked Mrs. Kingsmill to economise in her expenses. Before he went away she told him that she owed some accounts to Messrs. Rosenzweig, and one or two others, and he arranged to pay them off. That was at the end of April, 1892.
  Mr. Wilkinson - As a matter of fact did any other store send you in a monthly account at any time?
  Mr. Kingsmill - Yes, Hall & Holtz. I cautioned Mrs. Kingsmill not to go round the stores buying things, and I arranged with Hall & Holtz that I would pay cash for anything I bought.  On the 14th February, Hall & Holtz sent me a monthly account, and I found that Mrs. Kingsmill had run up a bill for $20. I at once went round to Hall & Holtz to say that they had no authority to give credit to my wife and thinking that there might be other cases I went to Messrs. Rosenzweig, and then they sent me in this account for three months.
  His Lordship - In 1891 I understand that you altered the mode of trading; did it occur to you to give notice to Messrs. Rosenzweig of the change?
  Mr. Kingsmill - No, because I trusted that Mrs. Kingsmill would have kept her word.
  By the plaintiff - The shroff did not come round to me. The matter was concealed from me by you.
  Mr. Wilkinson, referring to a number of authorities, contended that the defendant was not liable. The arrangement between the husband and wife, that she should not run up bills, was a very material one, whether the plaintiff knew it or not.
  His Lordship said the cases quoted by Mr. Wilkinson would be very pertinent if this had been the first bill Mrs. Kingsmill had run up.
  Mr. Wilkinson remarked that the popular fallacy was that the husband in all cases was liable; the real fact was that the wife was liable. If she had a separate income she was doubly liable, and the plaintiff to make good his claim must prove why he claimed against Mr. Kingsmill.
  His Lordship - Well, I think you have done your best, but I am sorry I cannot agree with you. The law of the case is quite clear, and it is simply this, that no presumption of agency arises from the mere fact of marriage; a wife is not necessarily the agent of the husband, but she may be made so exactly as he may make any other person his agent, and it is a question of fact whether he has done so or not. He may make her his agent by express words, or by usage, or custom, or course of dealing, and the most ordinary way in which that is done is what actually took place in this case, that the husband had been in the practice of paying the debts contracted by his wife.  If that has been, as a matter of fact, done for sufficient length of time, then the wife is considered the agent of the husband to people who have been dealing with them in this way.  It is not really a question of husband and wife, but of agent. If a master allows his servant to act for a sufficient length of time, the master is bound, until something has arisen to change the course of dealing.
  Now in this case it is the evidence of the plaintiff, and admitted by the defendant, that for seven or eight years this practice has been going on until there was some understanding between Mr. Kingsmill and his wife about the end of 1892.  Now the simplest way for Mr. Kingsmill -  knowing the people with whim his wife had dealt and who had trusted her - would have been to have gone round and said, "After this my wife pays her own debts."
  In a small place like Shanghai it is the easiest thing in the world, and a most ordinary thing to do. But I asked him why he did not do it, and he said he trusted his wife. Well, that is not the fault of Mr. Rosenzweig.
  The only argument for the defence is that as a matter of fact no bills have been paid since October 1891. That is so, and it might be that that constituted sufficient notice, but in my opinion it was not under the circumstances. Mr. Rosenzweig says he had no intimation and he made out the bills in the usual way. And although they were sometimes paid by Mrs. Kingsmill, or the money was brought by the Shroff, the difference to him was immaterial; he had no knowledge of any private arrangement and no reason to suppose a change had been made; he got his bills paid, and he was satisfied.
  The impression on my mind is that this was not sufficient intimation to the tradesman to put him on his guard and give him fair and reasonable notice that he was not to trust Mrs. Kingsmill any longer. That being so it seems to me that Mr. Kingsmill is liable for the bill, and as he himself says, when he found bills were being run up he went to give notice that he would not be responsible, and that is what he ought to have done.
  Mr. Wilkinson - The cases say no notice is necessary to the tradesmen.
  His Lordship - But agency having once been constituted it continues till something has arisen to change it, and in this case the ordinary thing would have been to give notice of the change. That is not done, and therefore it appears to me that the agency continued until it was put an end to. He was not bound to give notice to all the world, because he had bot constituted his wife his agent to all the world, but only to the people with whom she had been dealing, and a private notice to them was all that was necessary. That being so, the agency continued until he went into Messrs. Rosenzweig's shop and told them he would not pay any more. There will be judgment for the plaintiff on the claim, with costs.


Source: North China Herald, 16 June, 1893

15th June.
TWO important decisions, one in the Naval Court, the other in the Supreme Court, were given here on Saturday and are printed in full in another column.
  The Naval Court was called to enquire into the stranding of the steamer Whampoa on the 7th of May, .  .  .  and we may fairly congratulate Captain Hutchinson in having come so well out of a disagreeable situation.
  The second case, that in the Supreme Court, is one which most people will think had much better have been kept out of Court, and that if the defendant was determined to fight the claim against him he had better have been content with the Assistant Judge's decision in the Summary Court.  But the public cannot complain as the case has been the means of eliciting a very long and able decision from the Chief Justice, Mr. Hannen. Law claiming to be the perfection of common sense, it would have caused a general shock if the decision had been other than what it was.
  For some seven years Mr. Kingsmill had paid his wife's bills, and then he suddenly, without any notice to the tradespeople with whom his wife had been in the habit of dealing, refused to  pay a bill contracted by his wife before she "cleared out" of his house, to use the defendant's own expression. The case was put very neatly by the Chief Justice during the hearing:
  "The contention is extraordinary, that a tradesman who has dealings with a husband and wife living together, ought always to be under the impression that they are going to quarrel, that the husband is going to withdraw his authority, and that the tradesman should go and enquire every day whether a  quarrel has taken place."
  The contention is against common sense, and it is satisfactory to find that it is against the law too. The case, as the Chief Justice said, though apparently simple enough, was "undoubtedly a case which has great interest both for the parties and the general public, " and therefore the long and elaborate finding in question was given.
  The defendant may not be satisfied even now, but after all he may congratulate himself that the plaintiffs did not employ counsel and thus add to the trivial costs which he is called upon to pay.


Source: North China Herald, 2 June, 1893

Shanghai, 1st June.
Before N. J. Hannen, Esq., Chief Justice, and George Jamieson, Esq., Assistant Judge.
  This was a re-hearing of the case in which Messrs. Rosenzweig & Co., of Nanking Road, sued Mr. T. W. Kingsmill for $44.48, for goods supplied to Mrs. Kingsmill in 1892 and 1893. It will be recalled that on the 25th ult. His Honour gave judgment for the amount claimed, with costs.
  Mr. H. Rosenzweig appeared as plaintiff, and Mr. H. P. Wilkinson represented Mr. Kingsmill.
  Mr. Wilkinson - This is an application for a rehearing, ---
  His Lordship - No, I cannot look upon it in that light; this is a re-hearing.
  Mr. Wilkinson, resuming, said that in this suit the defendant Mr. Kingsmill was sued for $44 and some cents, and the principle involved was a very important one, not only for this case, but for similar cases which might any day arise. The question as it came before his Honour was the question of the liability of the husband to pay for goods supplied to his wife. There was also the larger question, that of the liability of the principal to pay for goods ordered by his agent, and his Honour's judgment was given on the facts and law of agency as arising in this case. He (Mr. Wilkinson) would deal with these points separately.
  As the judgment stood it came to this, that Mr. Kingsmill, having paid or arranged for payment of the bills signed by Mrs. Kingsmill, over a period of six or seven years, Mr. Kingsmill was liable to pay for goods supplied to Mrs. Kingsmill by Messrs. Rosenzweg & Co., until and unless there was notice given to Messrs. Rosenzweig & Co. that he would not be liable. That decision, without any stretching whatever, came to this, that Messrs. Rosenzweig might have supplied Mrs. Kingsmill with goods such as were charged in this present bull - dolls, three pairs of slipper in one day, and yards and yards of ribbon day after day -  for years without the knowledge of her husband, and then - though she might have been supplied with an allowance -have sent in a bill and demanded payment from Mr. Kingsmill. The judgment of the learned Assistant Judge came to that, and therefore it raised the whole question as to whether Mr. Kingsmill was bound to give notice or not. He (Mr. Wilkinson) had urged that under the circumstances in this case there was no necessity for Mr. Kingsmill to give notice, but the weight of authority for the last 100 years had been that it was for the trader who wished to have the benefit of looking to another person than the one to whom he supplied the goods, to take such steps as would give him that right and authority.
  In all leading cases it had been argued that it was a great hardship that tradesmen should have to find out, when supplying a married woman, whether they had the right to look to their husband. Their Lordships in the reported cases had said, "That may be so, but the persons who wish to have a remedy must take the trouble." It was not for the husband to go round giving notice to tradesmen who supplied goods to his wife, in order that he should not be liable. Messrs. Rosenzweig here came and claimed the privilege of making the husband liable, and all they had proved was that they had supplied the goods to Mrs. Kingsmill and she had not paid for them. Up to 1891 there was a certain mode of payment, through Mr. Kingsmill's office, and after that date payments in that manner ceased.
  The plaintiff when being cross-examined on that undoubted fact, that after a certain date Mr. Kingsmill never paid one singe cent in the manner money had been paid hitherto, and he gave the account to his Shroff for collection and did not care how he got the money. A man who did not care how he got the money, and had a general notion that in the end he would get it out of Mr. Kingsmill, had not proved enough to satisfy the Court that his remedy was against Mr. Kingsmill. It was not until Mrs. Kingsmill told him to send the bill to Mr. Kingsmill that he did so.
  Because Mr. Kingsmill in February, 1893, came and said he would not be liable for goods supplied to Mrs. Kingsmill was no reason why the Court should find that up to that time he was liable. A man might take certain precautions, but if the law held that from the position he occupied he need not take such precautions, it was rather severe when he did take those precautions that he should be made liable for all debts Mrs. Kingsmill had contracted.  It was important to remember to whom Messrs. Rosenzweig first sent their bill, because a trader sent the bill to the person from whom he expected payment, and that person was Mrs. Kingsmill.
  Having remarked upon the fact that the plaintiff's Shroff was not called, Mr. Wilkinson urged that the liability of the husband was not an ordinary but an extraordinary state under the present law, and where the wife had an allowance and was supplied with necessary clothing, had always been the law. There must be something special in the circumstances of the case.  If he understood the judgment of the Court below correctly, it was based on the fact that there had been previous dealing with Messrs. Rosenzweig, and that Mr. Kingsmill's was a continuing liability, but if that view were to prevail, then a wife could go and pledge her husband's credit for any length of time with any tradesman with whom she had dealt once or twice.
  His Lordship pointed out that in the present case there had been dealing for seven or eight years.
  Mr. Wilkinson replied  that there having been a change in the mode of payment after those years emphasized the importance of the alteration.  The very fact that instead of sending his bills to Mr. Kingsmill, Mr. Rosenzweig sent them to Mrs. Kingsmill and got payment from her should have been complete notice to him - if notice were necessary - that the course of dealing had been altered between them. As an ordinary rule the trader, in order to succeed in making the husband liable, must have notice that the husband would be liable.
  His Lordship said he should like to hear the cases Mr. Wilkinson had in support of that, because he thought it would be well to look into them.
  Mr. Wilkinson, resuming his argument, said the plaintiff had not attempted to explain why he had not continued sending in the bills to Mr. Kingsmill.
  The Assistant Judge - So far as Messrs. Rosenzweig were concerned there was no change. The evidence was that Mr. Rosenzweig used to make out the bills, and give them to the Shroff for collection.
  His Lordship - Was the evidence that Messrs. Rosenzweig used to send the bills to Mr. Kingsmill's office, but that after that they sent them to somebody else?
   Mr. Wilkinson - Yes, regularly.
  Mr. Rosenzweig - Not at all, my lord.
  The Assistant Judge - It is not my recollection of the evidence.
  His Lordship - What I gathered from the evidence was that the bills were sent to Mrs. Kingsmill, that she initialled them, and they were sent to the office, where the shroff was paid. Afterwards they were sent to Mrs. Kingsmill, who instead of initialling them paid them, without getting the money from the office or out of money she had in hand.
  The Assistant Judge - Yes, sometimes she went to the shop to pay them.
  Mr. Wilkinson - The evidence was that Mr. Kingsmill had never paid a bill until he knew it was correct.
  Continuing, the learned Counsel said he wished to particularly to point out that since 1891 Mr. Kingsmill had not the slightest notice that Messrs. Rosenzweig were supplying his wife. They never sent him any notice, and it was not for him to go round to every shop and ask. He supplied her with an allowance, and she was comfortably clothed.  It was not until Mr. Kingsmill called upon them that Messrs. Rosenzweig sent in the bill, and had he not called they would not have thought of claiming against Mr. Kingsmill. Cases which had been before the Courts showed it was not necessary for the husband to go round giving notice.
  The Assistant Judge - At what point do you say the change took place?
  Mr. Wilkinson - I admit that up to 1891 credit was given to Mr. Kingsmill.
  His Lordship - Supposing that agency is proved, do you contend that it lies on the plaintiff to prove that the agency continued?
  The Assistant Judge - And could he put an end to it secretly?
  Mr. Wilkinson - If it is a case of husband and wife, certainly.
  His Lordship - You say it lies with the plaintiff to prove affirmatively something; supposing he proved the agency, then surely it is upon the person who makes another his agent to show that the agency ceased. If you constitute an agent to go and order things, surely it is a very natural thing you should continue him an agent to pay for the things?
  Mr. Wilkinson - Immediately Mrs. Kingsmill began to pay it was for Mr. Rosenzweig to send round and find out whether he had a continuing claim against Mr. Kingsmill or not.
  The Assistant Judge - You can hardly argue that constituting the wife an agent to pay determined her agency to buy?
  Mr. Wilkinson - Say I admit she is the agent to order - she never paid; she then pays. It is for the trader to take steps to find out whether or not she is the principal.
  His Lordship - The case is - did he do something to hold her out as his agent, and did he afterwards alter that, and did Messrs. Rosenzweig actively or constructively have reasonable notice of a change? Is it your contention that the agency of a wife is more easily terminable than the agency of an outsider?
  Mr. Wilkinson - Much.
  His Lordship -The contention is extraordinary, that a tradesman who has dealings with husband and wife living together, ought always to be under the impression that they are going to quarrel, that the husband is going to withdraw his authority, and that the tradesman should go and enquire every day whether a quarrel had taken place. (Laughter.)
  Mr. Rosenzweig briefly addressed the Court in reply, saying that as a matter of fact he believed Mr, Kingsmill had paid accounts since 1891.
  His Lordship (after consulting with the Assistant Judge) said the Court desired to hear the evidence of Messrs. Rosenzweig's Shroff, and to inspect certain books. For that purpose they would adjourn until Saturday morning.


Source: North China Herald, 16 July, 1893

Shanghai, 10th June.
Before N. J. Hannen, Esq., Chief Justice, and George Jamieson, Esq., Assistant Judge.
  This morning his Lordship delivered judgment in this case, in which Messrs. Rosenzweig & Co., Ltd., sued Mr. T. W. Kingsmill for $44.48, for goods supplied to Mrs. Kingsmill in 1892 and 1893, and Mr. Kingsmill appealed from the Assistant Judge's decision.
  His Lordship, in giving judgment, said - In this case Messrs. Rosenzweig & Co. sued Thomas Kingsmill for the balance of an account die to them in November last and for goods supplied since that date to Mrs. Kingsmill. The case was first tried before Mr. Jamieson, who gave judgment for the plaintiff. It was reheard before the Assistant Judge and myself on the 1st and 3rd of June.
  The case was very fully argued in the Court below before us, and it is undoubtedly a case which has great interest both for the parties and the general public.  As we regard the case it is more one of agency than that of husband and wife. But certain propositions with regard to the agency of a wife have been put forward by the Counsel for the defendant which it is necessary to examine. His contention was that when the agency of a wife had been established it was easier to get rid of such agency than the agency of any other person.  Is that so? I think not. I can find no authority for it in the text books or the cases.
  There are two kinds of authority which a wife may possess to pledge the credit of her husband, one which the law implies from the relation of husband and wife, and the other which may be conferred upon her, as upon any other person, by the husband, either expressly or by implication. The cases which led Mr. Wilkinson to infer that the agency of the wife could more easily be determined than the agency of another person were cases which apply to the first kind of authority conferred on the wife. Where the law infers the agency of the wife, this inference can be rebutted by evidence that in fact the authority does not exist, but in cases where the authority of the wife to act as the agent of the husband has been given by express words or by unequivocal words of the husband, such authority cannot more easily be withdrawn than if it had been given to a stranger. In the present case there is no doubt whatever that the plaintiffs were justified up to the delivery of the first bill n 1892 in assuming that Mrs. Kingsmill was the duly authorised agent of Mr. Kingsmill to order such things as they ordinarily dealt in, and they were entitled to look to Mr. Kingsmill for the payment of their bills.
  In the beginning of 1892 the plaintiffs believed, and undoubtedly had a right to believe, that Mrs. Kingsmill had authority to pledge Mr. Kingsmill's credit. Mr. Kingsmill never gave them an express notice until after the bill now being sued upon was incurred that this authority was withdrawn.  So far as the evidence goes Mr. Kingsmill does not say that he told his clerk, nor does the clerk say that he was told, that Mrs. Kingsmill was not to order things on Mr. Kingsmill's credit. All that appears was that a different method of payment was adopted.  Mr. Kingsmill says he never saw the shroff, so that any notice of the express revocation of the authority must have come through the clerk to the Shroff, but the clerk does not say that he gave any such notice to the Shroff.  I gather from all the evidence that no express evocation of the authority was given to anybody by Mr. Kingsmill, except to his wife.
  Now, was the new method of paying the bills sufficient to give the plaintiffs reasonable notice of the revocation of the authority? As to the first bill, according to the shroff, there was not to be any obvious change. He took the bill to the office, then to Mrs. Kingsmill to be initialled, and she said she would send the bill in the office and it would be paid there. There was nothing in this to give notice that the authority of Mrs. Kingsmill had been withdrawn.  I believe that it was stated that this bill was paid by Mrs. Kingsmill at the shop. Was this fact sufficient to give notice to the plaintiffs of a different state of things? I think not, for the very next payment by Mrs. Kingsmill was also made at the shop, and this payment was made by Mrs. Kingsmill by means of money which Mr. Kingsmill had supplied her with. Why should not plaintiffs have supposed that both payments were made in the way the second was proved to have been made in?  I can see nothing in the first two payments to give notice to the plaintiffs of any withdrawal of authority from Mr Kingsmill.  I do not see that there was anything in them to put the plaintiffs upon enquiry.  Now, it is to be observed that there were only four payments in all after the end of 1891, and the remarks I have made with regard to the first two apply equally to the two last.
  There remains therefore only to be considered whether what was brought to the notice of the Shroff in the method of dealing with bills constituted reasonable notice to the plaintiffs that Mr. Kingsmill had withdrawn from Mrs. Kingsmill her authority to pledge his credit.  So far as the evidence for the defendant goes it merely proves that any bills which were brought to the office were referred to Mr. Kingsmill.  The shroff says (I quote from the Mercury report because it is rather more full than my own note while the effect is the same.)
I have been Mr. Rosenzweig's shroff nearly two years. I have collected Mrs. Kingsmill's bills. When I was handed bills by Mr. Rosenzweig for her I had to take them to Mr. Kingsmill's office, where I have received money twice. First I took them to the office where a young gentleman told me to take them to Mrs. Kingsmill. I did so, she signed them, I took them back to the office and got paid.  This was on two occasions. Another time I went to the office and the young gentleman told me there was no money, and that I had better go and see Mrs. Kingsmill. I then went back to Mrs. Kingsmill, who told me she had already signed the bill and sent it   to the office and that if I went there again I would get paid. I went several times to Mr. Kingsmill's office for payment of this bill, but I was always told there was no money, and when I went to Mrs. Kingsmill's house, the house-boy told me the bills were already signed and that I would be paid at the office. I never got any from Mrs. Kingsmill at all.  I received money at Mr. Kingsmill's office on 22nd June, 1891; and again on 13th October, 1891.  The bill which I failed to get paid was dated three or four months later than October, 1891. I received other bills to collect from Mrs. Kingsmill, which I first took to the office and then to Mrs. Kingsmill. I went to see her several times, and Mrs. Kingsmill went to Mr. Rosenzweig's store and paid them herself.
  By Mr. Rosenzweig - When you were pressing me to collect those other bills, I usually went to the officer first, and there I was told to go to Mrs. Kingsmill's house.  When I went to her she said she would go and pay herself. When they were paid up at the store I was told I need not go to her any more. The last bill was for $40 odd. I met Mrs. Kingsmill near Makalee Terrace and handed her the bill. I had been at the office before this and had been told there to take the bills to Mrs. Kingsmill. This was about three months ago.
  By His Lordship - During 1892 I went to the office every other week to collect bills. I suppose I went 20 or 30 times.
  By Mr. Rosenzweig - I remember your taking a letter to Mr. Algar, and I brought an answer back to you.
  Cross-examined by Mr. Wilkinson - Since October, 1891, there was a bill to collect from Mrs. Kingsmill every month. I went to Mrs. Kingsmill who told me it was not necessary to take them to the house again, that the bills would be sent by her to the office and that I would be paid at the office.
  By His Lordship - Since the end of 1891 I sometimes took the bills to the office, and sometimes first to the house. Latterly Mrs. Kingsmill told me she would come to the store and pay herself.
  By M r. Wilkinson -  After 1891 I never got any money. I told Mr. Rosenzweig that, and he told me I must either go to the office or the house and hurry up the payment. Soon after 1891 Mrs. Kingsmill used to tell me to leave the bills with her and that she would send the money on to the office. I told Mr. Rosenzweig that. I told him the bill was already signed in Mr. Kingsmill's office, but that there was no money there.
  By the Assistant Judge - The first time after 1891 that Mrs. Kingsmill kept a bill she said she would sign it, send it to the officer and I would be paid. Mrs. Kingsmill kept the bill on that occasion.
  By Mr. Wilkinson - Since early in 1892 I have only been at the office a few times.  They refused after that to receive the bills there, so I took them to Mrs. Kingsmill.  They did not even take the trouble to open the envelope when they saw it was addressed to Mrs. Kingsmill, but sent me on at once to her. I told Mr. Rosenzweig that Mrs. Kingsmill would call at the store herself to pay. When I first went to Mr. Rosenzweig nearly two years ago I generally got a bill every month for Mrs. Kingsmill, but latterly a couple of months might pass without a bill for her.
  By Plaintiff - In 1892 I went 10 or 20 times to the house. They were generally old bills.

  If everything there related had happened to Mr. Rosenzweig himself ought it in reason to have conveyed to him that Mrs. Kingsmill was no longer the agent of Mr. Kingsmill? I do not think that it ought, and, moreover, it was not proved that all this was brought to the notice of the plaintiffs, and the position of a shroff here in Shanghai is such that you cannot consider what happens to him and every word spoken to him as having happened and been spoken to his master.  He is really nothing but the conduit through which the bill is presented to and paid by the debtor.  If indeed he does, as a fact, detail to his master all that is said to him the master then he has actual notice of it, but a foreigner wishing to communicate to another foreigner a change in the method of transacting business between them is, in my opinion, bound to communicate direct, and must not assume that what the Shroff knows  the master knows also.
  It is a well-known principle of our law that a man may be constituted an agent for one purpose and not for any other. Take the case of a domestic servant in England appointed to keep a dog. It has been held that the servant's knowledge is the knowledge of the master, and if the servant knows that the dog has had what is called his "one bite" - the master is taken to know it also. But no domestic servant's knowledge as to a flaw in a title to property would be taken to be the knowledge of the master. The domestic servant would not be constituted as the agent of the master so as to affect the latter with knowledge of the defect in title. So that I think you must confine the agency of the shroff to what is his well-known business, viz. - to present the bill and accept the money in payment.
  Then what was proved to have been communicate by the shroff to Mr. Rosenzweig? "When I first went to Mrs. Kingsmill's house I old Mr. Rosenzweig that I could not get any money. When Mrs. Kingsmill kept the bill and afterwards sent it to the office, I told Mr. Rosenzweig that the bill was at Mr. Kingsmill's office but there was no money. I told Mr. Roenzweig that Mrs. Kingsmill would come to the office and pay."  It is evident that this would not be enough to give notice to Mr. Rosenzweig that an agency which he knew had existed for some seven years had been terminated.
  The short statement of the facts then is this. Mr. Kingsmill constitutes Mrs. Kingsmill his agent to order goods at the plaintiff's store and pledge his credit there; this agency continues for seven years. It is then terminated by Mr. Kingsmill forbidding his wife to order goods upon his credit any longer. Of this termination of the agency Mr. Kingsmill gives an express or implied notice to the plaintiffs.  Upon this statement of facts I consider the law is clear that he husband remains liable. It is laid down in Lush's Law of Husband and Wife, page 356, in the following words:
  "4. A husband is liable on a contract made by his wife although she has no actual authority, if he has held her out, or allowed her to hold herself out, as his ostensible agent and the party contracting with her has reasonably acted in bona fide reliance on her authority."  The whole of that portion up to page 351 makes it plain to my mind that the husband remains liable. As the defendant's Counsel referred to the case of Debenham v. Mellon and it is a comparatively late authority I think it right to call attention to some of the expressions of the learned Judges who determined that case.
  Lord Selbourne says at page 32 of L.R. 6 Appeal Cases:
  No doubt, though not intending to hold her out as his agent, and though she may not actually have had authority, the husband may have conducted himself so as to entitle a tradesman dealing with her to rely upon some appearance of authority for which the husband ought to be held responsible. If he has so acted he may be bound; but the question must be examined as one of fact, and all the authorities, as I understand them, practically treat it as so when they speak of this as a presumption prima facie, and not absolute; not a presumption of law, but one capable of being rebutted.
  When Chief Baron Pollock, in Johnston v. Summer (1) said that all the usual authorities of wife under those circumstances might be assumed, "notwithstanding any private arrangement," I suppose him to have had in view that state of facts, under cohabitation, when a wife is managing her husband's house and establishment, which usually raises the presumption.  If an appearance of authority is once, in fact, created by the husband's acts, or by his assent to the acts of his wife, it might be right to hold, that, as between the husband and a person relying upon the appearance of authority, it cannot be got rid of by a mere private understanding or agreement between husband and wife.
  Lord Blackburne says:
  I quite agree that if the husband knew that the wife had got credit, if he had allowed the tradesman to suppose that he himself had sanctioned the transactions, by paying them or in other ways, it might very well be argued that he would have given such evidence of authority that if he did not revoke it,  he would be bound to give notice of the revocation to the tradesmen and to all who had acted upon the faith of his  authority and sanction. That would be the general rule, for where an agent is clothed with an authority, an afterwards that authority is revoked, unless that revocation has been made known to those who have dealt with him, they would be entitled to say, "The principal is precluded from denying that that authority continued to exist, which he has led us to believe, as reasonable people, did formerly exist."
  Another point raised by Mr. Wilkinson was that the bills were headed "Mrs. Kingsmill," but on the bills sent in and on the books. If up to the end of 1891 the bills had been headed "Thomas Kingsmill, Esq.," or "Mr. Kingsmill" and afterwards "Mrs. Kingsmill," there would have been great force in this point; but there was no evidence of any such change and the Court is entitled to assume that the bills were always headed "Mrs. Kingsmill," as I practically asked whether this was so, and pointed out that it was easy for the defendant to produce some of the old bills  to decide the point. I take it then that no change was made in the headings of the bills or accounts and as up to the end of 1891 the credit was undoubtedly given to Mr. Kingsmill although the bills were headed "Mrs. Kingsmill," there is no reason for assuming that the credit was at any time given to Mrs. Kingsmill simply because the bills and accounts were made out in her name.
  A certain portion of the goods contained in the bill now being sued upon were forwarded to Mrs. Kingsmill at the Central Hotel. This did not appear at the hearing before Mr. Jamieson and only came out at the very end of the hearing before us. We think that this fact that Mrs. Kingsmill was staying at the Central Hotel and ordered the goods to be sent there was such a notice to the plaintiff of an entirely different state of affairs existing between Mr. and Mrs. Kingsmill and to throw upon the plaintiff a duty to enquire into the matter before supplying more goods to Mrs. Kingsmill upon Mr. Kingsmill's credit, and we think that Mr. Kingsmill is not liable for goods supplied to Mrs. Kingsmill at the Central Hotel and subsequently.
  Unless the parties can come to some arrangement upon the subject there must be a further enquiry as to what the goods were. We imagine that there can be no difficulty in determining when Mrs. Kingsmill went to the Central Hotel and we should prefer that the matter should be now settled so that we should be able to give judgment for a specific sum. There will therefore be judgment for such sum as agreed to be due after deducting the price of the goods sent to the Central Hotel or subsequently supplied to Mrs. Kingsmill from the amount of $44.48.
  The Assistant Judge said - The question at issue in this case is in reality one of principal and agent, and not of husband and wife at all. As, however a number of cases bearing on the law of husband and wife have been quoted and relied upon by the learned Counsel for the defendant I shall state briefly what appears to me he general principle to be gathered from such cases. It is this.
  When a husband and wife are living together and articles of apparel necessary and suitable to her station are obtained by the wife on credit, there is a presumption that she obtains them as agent for her husband and that she is authorised to pledge his credit. But this presumption may be rebutted by showing, as a matter of fact, that she was not so authorised, and that the husband had otherwise provided for his wife's wants, or makes her an allowance for her new clothing, then he is not responsible, and that even though the tradesman be in complete ignorance of the understanding between them.  But this is on the assumption that the husband has not done, or consented to the doing, of any act whereby she has been held out as his agent.   In addition to the presumed or prima facie authority which the law gives her in regard to necessaries, the wife may be constituted the agent of the husband for any purpose, if he chooses so to make her. This authority may be either express or implied; its extent and scope is a question of fact depending on the particular circumstances. If the husband has once held her out as his authorised agent for a particular purpose he is bound by her acts in precisely the same way as he would be by the acts of any other person being his agent in a like degree, and he is liable to any tradesmen so dealing with her in good faith and without the revocation of his authority.
  But it is in his power at any time to terminate his liability by giving notice to the person or persons whom he has thus induced to supply goods on his credit, and if he does so the relationship of principal and agent becomes again simply husband and wife.  In this case it is quite plain that Mr. Kingsmill did in fact constitute his wife as his agent vis-à-vis of the plaintiffs for the purchase of such articles as they were in the habit of dealing in; and that up to the end of 1891 at all events, he was liable for the payment of such purchases.  It is also plain that he might, if he had so chosen have terminated his liability at any time by a proper notice.  The question is whether what was done by terms or under his authority did not amount to reasonable notice.  The point has been so fully dealt with by the Chief Justice that I need say no more than that I fully concur.
  With regard to the general question of how far a Shroff may be deemed to be the agent of his master to receive notices of the kind, I concur in the remarks of the Chief Justice. The duty of a Shroff who is often, perhaps usually, ignorant of English, is, I think, by the custom of the place and to the common understanding of all parties, simply confined to collecting bills and handing receipts for the money. Even therefore had a direct and unequivocal notice been given to the Shroff which in my opinion was not done, it still would not necessarily follow that sufficient notice had been given to the master.  If indeed it could be shown that notice such as would put any reasonable man on his guard, did as a matter of fact reach the plaintiff, whether through the shroff, or otherwise, it would be different, but a mere intimation to the Shroff uncommunicated to the master, is not I think sufficient to discharge the liability. It must be remembered that this liability was one which the defendant had voluntarily created, and the onus of proof rests upon him to show that he had taken reasonably sufficient means to terminate it. In this I think he has failed.
  Mr. Wilkinson - Each party will pay his own costs?
  Mr. Rosenzweig - I simply want to explain.
  His Lordship - I have determined everything; the only question is as to when Mrs. Kingsmill went to the Central Hotel.
  Mr. Rosenzweig - At China New Year.
  Mr. Kingsmill - The date Mrs. Kingsmill cleared out was 15th February.
  The Assistant Judge - Were none of these things included in the bill?
  Mr. Rosenzweig - Nothing at all.
  His Lordship - Very well; then there is nothing; the date of the bill is 14th February. There will be judgment for the full amount. As Mr. Rosenzweig appeared for himself there will be no costs.
  Mr. Rosenzweig - I had to get legal advice and I ask that I should be allowed costs for that.
  His Lordship - You will be allowed the costs of the Court.

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