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Colonial Cases

Herzberg v. Bennertz and Co., 1897



Herzberg v. Bennertz and Co.

Supreme Court for China and Japan
Hannen CJ, 4 June 1897
Source: North China Herald, 11 June, 1897




Shanghai, 4th June.

Before Sir Nicholas J. Hannen, Chief Justice.


   This was a claim by Mr. C. Herzberg for $600 against Messrs. Bennertz & Co., balance of wages and commission due to him as chief engineer of the Wooning from 1st July, 189, to 1st December. Mr. W. V. Drummond appeared for the plaintiff and Mr. H. P. Wilkinson for the defendants.

   Mr. Drummond, in opening the case explained that the plaintiff was engaged at a salary of $175 a month.  He had received certain sums on account which left $600 due. He denied that he agreed that his salary depended upon the settlement of the dispute with the Chinese authorities. 

   The plaintiff who was called produced a promissory note for $925 signed by Messrs. Bennertz & c9., dated the 2nd of December, and certified to by Mr. Pitzipios, British Vice-Consul.

   His Lordship asked Mr. Wilkinson how he proposed to get over this.

   Mr. Wilkinson said he quite saw the importance of the promissary note, and he could not contest the balance due upon it, but the plaintiff was claiming a sum of $100 as percentage which the defendants did contest.

   His Lordship said he certainly should give judgment for $500, but the only question was that about the $100 percentage.

   Plaintiff, in cross examination by Mr. Wilkinson said the percentage was promised by the defendants, but not conditionally upon the Chinese paying.

   Captain Fuhlers said he was told by Mr. Bennertz to put the plaintiff down for percentage at the rate of $50 a month from the 1st of September. He was also told to overcharge in the portage account for August, as the Chinese were expected to pay. He did so.

   Mr. Wilkinson - Then you only did a swindle for August?

   Witness - A swindle for August of about $500.

   Mr. Wilkinson - Then you are quite sure there was no swindle about September?

   Witness - No, and Mr. Pollak told me in his office that the whole thing about the ship was intended to be a swindle from the beginning.

   Mr. I. Pollak, was called for the defence and said that on the 8th or 9th of January, when it was expected that the dispute with the Chinese authorities would be settled the next day, the firm agreed to include percentages for the officers in the portage account, in consideration of their having had to wait for their money. The payment of the percentage was conditional upon the settlement of the dispute with the Chinese.

   Counsel having briefly summed up,

   His Lordship said that under the circumstances of these cases he should take the privilege of a jury and simply give his decision. There would be judgment for the plaintiff for $500, that was excluding the $100, with costs.

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