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Colonial Cases

Fuhlers v. Bennertz and Co., 1897



Fuhlers v. Bennertz and Co.

MacKenzie v. Bennertz and Co.

Supreme Court for China and Japan
Hannen CJ, 10 June 1897
Source: North China Herald, 11 June, 1897




Shanghai, 10th June.

Before Sir Nicholas J. Hannen, Chief Justice.



   Judgment was this morning delivered in these actions, in which Mr. W. V. Drummond appeared for the plaintiffs and Mr. H. P. Wilkinson for the defendants.

  His Lordship, in giving his decision, said - As these two cases practically involve exactly the same questions I propose to take them together. There is always a great difficulty in determining anything where the parties are at direct variance in their evidence, and more especially, there is difficulty when one feels convinced that both of them think they are relating facts as they occurred. I have therefore had considerable difficulty in making up my mind with regard to these cases. There appears to be no doubt, nor is there any dispute, as to the engagement of both Captain Fuhlers and Mr. MacKenzie, and there appears to be no doubt as to the rate at which they were to be paid. 

   The first question that arises is whether, besides the agreement of hiring, there was at any time of the hiring a collateral agreement, as it were, by the plaintiffs in these cases not to sue for, and not to consider themselves entitled to payment of, these wages until a certain dispute between the defendants and the Chinese Government was concluded. I think that some such understanding arose between the plaintiffs and the defendants, at some time between the hiring and the bringing of this suit, but I have come to the conclusion upon all the probabilities and upon all the evidence that this was not in reality a collateral agreement between them. There may have been an understanding that these claims should not be pressed, but I do not believe that either Captain Fuhlers or Mr. Mackenzie ever, with their eyes open and intentionally, entered into an agreement that they were not to recover any of their wages until some indefinite time when a dispute, which neither of them could foresee the conclusion of, was settled. I have therefore come to the conclusion that both the plaintiffs in these cases are entitled to recover their wages now. 

   For very much the same reasons as have led me to that conclusion, I am of opinion that Messrs. Bennertz and Co. never absolutely made a promise to pay them the commissions. I think that just as it is very unlikely that Captain Fuhlers and Mr. Mackenzie agreed to wait for an indefinite time, so it is very unlikely that Bennertz and Co. for no particular reason agreed to pay the commission.  What they did apparently agree to was to pay it if they recovered it from the Chinese.

   I have worked the matter out, and I believe my figures to be correct, and there will be judgment in the case of Fuhlers v. Bennertz for his wages, without the commission, and I make that $1,024.50, with costs. In the case of Mackenzie v. Bennertz, I also intend to give judgment for the wages, without the commission, and I work that out to be $424, with costs.

[See also North Chinas Herald, 4 June, 1897.]

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