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Colonial Cases

Evans v. Su Pao San, 1898

[sale of goods]


 

Evans v. Su Pao San

Mixed Court, Shanghai
27 October 1898
Source: The North China Herald, 31 October, 1898


 

THE MIXED COURT.

Shanghai, 27th October

Before Mr. U. K. Cheng, Magistrate, and Mr. F. S. A. Bourne, British Assessor.

EVANS v. SU PAO SAN.

   The hearing of this action briefly reported in Thursday's issue was resumed yesterday. Mr. E. Nelson again appearing for the plaintiff and Mr. Morgan Phillips for the defendant.

   Mr. Bourne suggested at the outset that it might save time if the argument were confined to the two issues raised, namely the correctness of the chop, and whether the contract was or was not cancelled by mutual  [?]

   Mr. Phillips made a formal protest with regard to the point raised as to the loss on exchange which he said was not for the determination of the Court.

   Plaintiff's examination was continued, and in reply to Mr. Nelson, he said it was the custom when disputes arose between foreigners and natives in trade to resort to arbitration. 

   Cross-Examined by Mr. Phillips - Mr. Fobes was left n charge of the piece goods business during his absence in 1893. He did not know that Messrs. Anderson and Haskell had made a survey of certain goods in which a dispute had arisen and adjudicated in his behalf until February 1894. It was untrue that he discussed the matter with Mr. Fobes in December 1893 and complained that the allowance made was too large. He did not say to defendant that he preferred to keep the goods nor did the last-named say he would cancel the agreement or take the goods subject to the allowance. They did not mutually agree on or about December 22nd1893 to cancel the contract.  He did not subsequently on the evidence of Mr. Forbes cancel the contract and hold the goods himself. He did not suggest that this arbitration in face of the letters produced had been concealed from him by Mr. Fobes. He was certainly not informed of it until a considerable time afterwards. The names of the arbitrators were not mentioned in the letters referred to. There was a distinct reference in the letters to the fact that the wrong chop of flannels had been sent.

   At this stage Mr. Nelson intimated that he had three witnesses to call and as Mr. Phillips had stated that his cross-examination would occupy a very long time it might be convenient for him to call them at once and liberate them.

   Mr. Phillips and the Court assented.

   Mr. Anders of Messrs. Ilbert & Co. spoke to the signatures on the award produced in respect of certain goods belonging to the plaintiff's firm. 

   Cross-examined - He was not asked to keep the fact that he had made such an award secret, nor had he met Mr. Evans in the street, would he have thought of withholding reference thereto. He was asked to arbitrate from Messrs Evans & Co. and naturally thought the head of the firm would know all about it.

   Cross-examined - There was nothing in the sending in of the award to mark it in his memory. It was nothing unusual and he merely regarded it as a dispute between Chinese and foreigners.

   Mr. James Jones of the American Trading Company deposed to being asked to arbitrate in certain disputes between the parties. With regard to the Ellerton "I" Flannels he distinctly remembered defendant stating "never mind about them." 

   By Mr. Bourne - He understood by that, that defendant intended to abide by the former award. 

   Continuing he said these particular flannels were distinguished by letter and the principal qualities for the Chinese market were "A," "P," & & "Q."  These were almost the only kinds that cane here and he did not think "I" had ever come before. Consequently, if cargo had not been here before there was no value in the chop. If no special chop was mentioned in the contract the makers would supply the chop most generally used in respect of this class of cargo. 

   Cross-examined - If the contract was cancelled it was now the custom for the goods and exchange previously settled to go together.

   Mr. Phillips - When were you first asked to come and give evidence here?

   Witness - The day before yesterday when Mr. Evans wrote to me and said he would not keep me more than five minutes. Instead of that here I am over an hour.

   Mr. Phillips - You may be longer.

   Witness - No, I shan't.

   Mr. Phillips - You will answer my question.

   Witness - No, I shall not if I don't wish to. I will reply to any respectable questions.

   Mr. Phillips - I am sorry if in your estimation they are not respectable.

   Mr. Bourne - Pray be moderate. After all Mr. Jones only comes here out of courtesy.

   Mr. Phillips - He must answer the questions that I put.

   Mr. Nelson - You must remember Mr. Phillips that witnesses in this Court are not compellable.

   Witness - I wish to be addressed in a gentlemanly way.

   Mr. Phillips - You must not criticise my conduct. Have you ever said since you made the award one word to Mr. Evans about the exclusion of the Fullerton "I" flannels? 

   Witness - I have had Evans and Su Pao San before me for four years. I don't know that I have said anything about it but you have my award.

   Mr. Bourne felt that as the award was in evidence the question was not important.

   The witness at this stage left the Court.

   Mr. Nelson said he wished to ask Mr. Jones a question, but the Court held that as he refused to be cross-examined he could not be re-examined.

   Plaintiff's cross-examination was continued briefly and was not concluded when the Court adjourned at four o'clock  till Thursday week.

 

Source: North China Herald, 14 November, 1898

THE MIXED COURT.

   On Tuesday Mr. Cheng (Magistrate) and Mr. F. S. A. Bourne resumed the hearing of the action instituted by Messrs. Evans & Co. of Nanjing Road against their compradore Su Pao-sun. Mr. E. Nelson again appeared for the plaintiffs and Mr. Morgan Phillips for the defence.

   Following up the line of defence offered some two weeks ago, Mr. G. W. Noel was called and as an expert witness expressed the view that Ellerton "I" Flannel was unknown in the Shanghai market, or landed in China. With the various brands of the manufacturer he was cognisant but was not familiar with this particular quality.

   Cross-examined, he said that he had no written memoranda of the survey, but he remembered that Mr. Fobes said nothing to him as to quality. He made no award in writing. He understood there was a general dispute and if quality was mentioned he considered that the flannels were well up to muster. 

   Re-examined by Mr. Nelson, he was under the impression that the Chinaman he saw on the occasion was the indentor of the goods, that he ordered them, and would pay a commission on them. In conclusion he thought in regard to arbitrations that with the parties present, and neither dissenting, the decision of the arbitrator was accepted. 

   Mr. A. M. A. Evans' cross-examination was continued at great length and he denied that he came to the defendant about the end of December and asked him to cancel the contract. As far as he knew, the arbitrations of Messrs. Noel, Anderson and Haskell were never made known to him.

   Re-examined by Mr. Nelson, he said he was not sure when he first heard of the arbitration being made. The first he heard of Mr. Noel's arbitration was some time in May or June, when Mr. Noel told him himself. He knew there had been some arbitration and that he had to carry the goods over until March, but he understood Mr. Evans made it.  Subsequent to 1893 he had a special arrangement with reference to the duties.  Su Pao-sin wrote whatever he liked in his books and it was copied into that of Evans and Co. Su Pao-san  was there a year altogether and during that  time there was never any absolute settlement. The compradore's account was never closed; if anything was wrong it was adjusted in the books when the transaction was copied and settled. In the beginning of May the matter of the flannels was again mentioned and witness declined to have the contract broken and there was a big row over it. The statement that he had said that he would allow the contract to be cancelled was absolutely untrue. The books bearing on the contract had not had the transaction cancelled in them and the contract had not been "cancelled" written across it. 

   This closed the case for the plaintiff and the matter was then adjourned until Thursday.

...

On Thursday afternoon before Mr. U. K. Cheng (Magistrate) and Mr. F. S. A. Bourne (British Assessor) the familiar case of Evans & Co. of Nanking Road, against their former compradore, Su Pao Sun was resumed. Mr. E. Nelson, from the office of Messrs Johnson, Stokes and Master appeared for the plaintiffs, and Mr. T. Morgan Phillips defended.

  Mr. Phillips commenced his address for the defence and remarked at the outset that the action seemed to him preposterous.  The matters in dispute between the litigants were arbitrated upon by Mr. James Jones in June,1894, and it was to be presumed that the item regarding the Ellerton "I" flannels was settled at the same time. The absence of any evidence as to their exclusion under that arbitration must be conclusive.

   Mr. Nelson at this stage reiterated his application that any reference to the part Mr. Fobes took in the matter should be withheld until the Court had heard his evidence. The Court upheld this view and Mr. Fobes withdrew.

   Mr. Phillips, continuing, commented on the question of "chop," and sad that Su Pao-San would tell them that a contract was made for the supply of a certain quality of flannel. When the goods arrived they were not stamped in accordance with the terms of the contract and the arbitrator to whom the matter was referred suggested that a certain allowance should be made on that account.

  The only question after that award was given was whether the contract was actually cancelled. In this connection he argued that Mr. Nelson had been attempting to foist bad law on the Court in stating that any contract made in writing had to be  broken in writing. This, however, he added might only be Mr. Nelson's view of English law. 

  Mr. Bourne reminded the learned advocate that in that particular Court they were frequently bound by custom. 

  Mr. Phillips recognised the justice of the Assessor's remarks and resumed his speech for the defence at considerable length. He indignantly denied the imputation that there had been any concealment in the matter of the award or that there had been any conspiracy or collusion on the part pf Mr. Fobes and the defendant. The proceedings were of a very protracted character and interruptions were of the most frequent and unnecessary character. 

  Mr. Nelson called his colleague to order on certain methods of procedure in the defendant's examination-in-chieef. Mr. Phillips contended that he was justified in putting more or less leading questions inasmuch as Mr. Evans had proved himself a most difficult witness and involved matters in a cloud of verbiage.

   The learned Assessor thereupon expressed the opinion that the whole matter was in frightful confusion and anything that would shed light on the subject they must follow up. 

   The evidence of Su Pao-san (most of which was translated, and to the uninterested rendered additionally  complicated by questions from the Bench in the vernacular not Anglicised) was not concluded when the Court rose.

   An adjournment till Tuesday next was agreed to when the defendant will give his version of the exchange difference.

 

Source: North China Herald, 19 December,1898
 

THE MIXED COURT.

On Thursday afternoon before the Magistrate (Mr. Cheng) and Mr. F. S. A. Bourne (British Assessor) the familiar case of Evans & Co. v. Su Pai-sun was concluded, Mr. Nelson appearing for the plaintiffs and Mr. Morgan Phillips for the defence.  

  Mr. Fobes' cross-examination was continued, dealing almost entirely with the correspondence of the firm, initiated during his period of management while Mr. Evans was at home and which referred to the points at issue. These, however, have been so often reiterated in these columns that their recapitulation is unnecessary.

  Mr. Phillips in his reply for the defence commented on Mr. J. Jones' refusal to be cross-examined and asked the Court to eliminate his testimony from their consideration. This, he said, was one of the interminable actions of Mr. Evans which had disgusted and wearied the public of Shanghai. He trusted it would be the last that the Court or any other Court in Shanghai would be troubled with and that the judgment would be the means of deterring Mr. Evans from proceeding with such cases.

  They were asked to believe that the Ellerton I flannels were excluded in Mr. Jones' arbitration from the contract, but there was not one scrap of writing to support it, or that the exclusion was at the request of Su Pao-sun, and he maintained that it could only be on the strongest, most cogent, and irresistible evidence that the Court could come to the conclusion that such flannels were excluded from the arbitration at his request. He respectfully asked that Mr. Jones' evidence should be rejected, and when that was done the case rested entirely on the evidence of Mr. Evans.

  He maintained that of Mr. Evans' evidence was untruthful and could not in the various circumstances be relied upon. He repudiated the allegation, or inference which had been made, that Mr. Fobes was working in collusion with the defendant, and argued on the other hand that Mr. Fobes was working throuighout in the best interests of Mr. Evans. The claim of Mr. Evans on account of exchange profit was both ludicrous and discreditable, and, in the face of the overwhelming documentary evidence on the other side, was monstrous. 

  Mr. Nelson replied at some length and severely criticised the evidence of Mr. Fobes whom he described as not being guilty of telling a mere technical lie, but of an absolute lie. He argued that there had been no cancellation of the contract whatever and that the defendant was shuffling.

   Judgment was reserved.

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