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Colonial Cases

Meyerick and Co. v. Yuen Chong, 1898

[Mixed Court appeal - commercial dispute]


 

Meyerick and Co. v. Yuen Chong

Court of Appeal, Mixed Court, Shanghai
December 1898
Source: North China Herald, 24 December, 1898


 

COURT OF APPEAL.

Before His Honour the Taotai.

MEYERICK & CO. v. YUEN CHONG.

   This was an appeal on behalf of the defendant Loh Sze-ching piece goods dealer and proprietor of the Yuen Ching Hong from an order of the Mixed Court before Mr. Cheng on the 23rd of July,1898, which adjudged him to be locked up until he pay Tls. 156.77 at the suit of Messrs. Meyerick and Co.

   Mr. Morgan Phillips (Messrs. Drummond and Phillips), who appeared for the appellant, stated that Messrs. Meyerick and Co. had brought an action against appellant at the Mixed Court which had been heard at different times before three magistrates. 

   The first hearing took place on the 24th of November 1897 before Mr. To Tso-lun (magistrate), and there were four other hearings between the 18th of December 1897 and the 6th of May 1898 before Mr. Chang (magistrate). On the 23rd of July 1898 before Mr. Chang who had made an order which was complained of Mr. Phillips, in addressing the Taotai, contended that had Mr. Chang known all the facts of the case and not been misinformed the order would never have been made. 

   It appears that the appellant entered on the 2nd of June, 1897 into a joint account contract with Messrs. Meyerick & Co. for the purchase of  300 bales of English cotton yarn for future delivery, and it was arranged, as it was a joint account contract,  that all profits and all losses would be  divided between them in equal shares. The cotton yarn arrived about the end of October or the beginning of November that year and it was sold soon after the arrival by Messrs. Meyerick & Co. On or about the 8th of November 1897 Messrs. Meyerick & Co. sent in a claim to the appellant representing to him that was his share of the loss on the transaction. 

   The appellant was much surprised at receiving this claim as he considered from the rate of exchange prevailing at that time that there ought to have been a profit, and he requested Messrs. Meyerick  & Co. several times to furnish him with the full and proper  account of the dealings with these goods, but without success; he subsequently requested Messrs. Meyerick & Co. to produce the original invoice, draft and bank memorandum which showed the settlement of the rate of exchange. 

   Messrs. Meyerick a& Co. refused to do so and initiated proceedings in the Mixed Court. These documents never have been shown to appellant. On the 17th of June 1897 the appellant bought from Messrs. Meyerick & Co. 100 cases of cotton flannel for forward delivery; these goods also arrived about the same time, namely, the end of October or the beginning of November, and Mr. Loh did not clear 79 of the cases as Meyerick and Co. had instituted a suit in the Court respecting the joint account transaction. On the 18th of August 1897 also purchased from Meyerick & Co. 200 bales of English cotton yarn for forward delivery, these arriving at the same time as the other purchase. Defendants refused the delivery of the English cotton yarn. In October and November 1897 the market was then favourable to the purchaser and he considers he would have made considerable profit on them had they been delivered.

   The first hearing of the suit in respect of the joint account transaction took place on the 24th of November 1897. Messrs. Meyerick & Co. gave evidence claiming Tls. 1,200 as defendants' share of loss, but then stated that they were ready to waive their claim for the account of defendant would cancel his contract  for the undelivered goods. The defendant stated that he had applied   for the full accounts of the joint transaction as he believed there was a profit instead of a loss and that the accounts had not been furnished to him.

   At the next hearing the Mixed Court Magistrate decided that the dispute should be referred to arbitration.  On the 8th of December 1897 the arbitrators made a report to the German Assessor that as it was a joint account both parties were equally entitled to inspect the invoices and notes of dale and all the documents connected therewith. Mr. Morgan Phillips was instructed that that report was never furnished to the Nixed Court Magistrate.

   On the 18th if December 1897 the hearing was before Mr. Chang and there were subsequent hearings before him on the 6th and the 15th of January 1898. Upon each of these occasions the defendant applied that the accounts should be furnished to him. On the 8th of May 1898, Messrs. Meyerick then stated that an arbitration had been held between the parties, who had estimated that the defendant's share of the loss was Tls. 156 but that the account of the 280 bales of undelivered yarn had not been ascertained. The defendant at that hearing stated that he had signed no agreement - that he had been no party to any arbitration proceedings.

   The order of the Magistrate from that hearing was that he would report the case to the Shanghai Taotai as defendant was reluctant to settle. From first to last during these proceedings the appellant had asked for the accounts to be furnished to him which had never been done.

   At the hearing on the 3rd of July,1898, Mr. Chang who had no previous knowledge of the facts in reference to the records of the Court, seemed to have believed that the matter in question had been arbitrated upon, he thereupon made the order which is now appealed against. Mr. Phillips again contended that had the Magistrate known all the facts of the case in all probability he would not have made the order. 

   The appellant had twice petitioned the German Consul-General setting out the whole of the facts and requesting that Messrs. Meyerick & Co. be compelled to furnish the accounts asked for. He also sent a petition of the same tenor to Baron von Heyling, the German Minister at Peking. Under those circumstances it seemed unfortunate that there was no representative from the German Consulate present. The appellant also petitioned the Viceroy of Nanking who ordered the present appeal to be heard.

   Messrs. Meyerick & Co. seemed to have behaved in an arbitrary and unreasonable manner in not producing the full accounts of the joint transaction for the appellant; they have also deprived him of the chance of making considerable profits on the goods which they refused to deliver. In every joint stock trade transaction it is common and reasonable practice that the full account and every circumstances in connection with it should be furnished by either party to the other. 

   From first to last the appellant had been asking for that to which he is fairly entitled, namely, that Messrs. Meyerick & Co.  should give him the full accounts. He now asks that the judgment of the Mixed Court should be set aside and that an order for the full accounts be made.

   His Honour said he would consider the case and give his decision later on.

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