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Colonial Cases

In re Shekury v. Docter, 1899

[company law]


 

In re Sherry v. Docter

United States Consular Court, Shanghai
Goodnow, 24 January 1899
Source: North China Herald, 30 January 1899


 

U.S. CONSULAR COURT.

Shanghai, 24th January.

Before John Goodnow, Esq., U.S. Consul -General, and Messrs. Bennett and Hykes, Assessors.

In re SHEKURY v. DOCTER.

   In this case the defendant contracted in writing with the plaintiff who signed for the concerned to buy 25 shares of International Cotton Mill Co. shares and to take and pay for same on 31st December,1898, at Tls. 93 per share. This contract was dated September 6th, 1898. On December 31st the plaintiff attempted to make delivery of these shares to the defendant but was unable to find the latter at his usual place of business. Wherefore the plaintiff sued for judgment for the value of 24 shares at Tls. 93 per share and interest at 7 per cent, per annum, and the costs of this action.

   The answer to this is two-fold; firstly the defendant sets up that the transaction was of a gambling nature. That the shares were imaginary and only the difference between Tls. 93 and the actual market value of International Cotton Mill shares of December 31st1898 was at the latter date to be accounted for. Second, that the defendant objected to Shekury signing for the concerned and informed Shekury that the transaction was to be considered at an end.

   The exhibits put in are of a sale of actual shares and nothing in the contract proclaims it a gambling transaction. Shekury claims it is a bona fide sale and the testimony goes to show that Shekury actually did attempt to deliver the certificates of stock called for on December 31st and failed to make actual delivery to the defendant through no fault of his own. The verbal claim of the defendant that he considered this a gambling contract cannot stand unsupported against the written contract in evidence. On the evidence before the Court it must be held that the contract is a good one.

   Nor can the defendant of his own motion, having once accepted the contract and signed it, repudiate it and declare that it must be considered at an end. It matters not if the price of such stock had risen or fallen at the time of such attempt to end the contract. The contract was plain for delivery on December 31st. It could not be ended by defendant alone without charge of fraud. On September 22nd, could it be ended, then a written contract between two parties would be useless.

   It appears to the Court from the evidence that the market price of such shares on December 31st and shortly thereafter was 80 per share.  Plaintiff then could have protected himself in so far had he chosen to sell such shares and the measure of damages on account of the defendant's failure to take such shares, on December 31st, would be Tls. 325, being the difference between the contract and market price.

   It is therefore ordered by this Consular Court that judgment be entered in favour of G. K. Shekury for Tls. 325 and interest at the rate of 6 per cent per annum from December 31st to date, and that said defendant shall pay the costs of the suit.

John Goodnow, Consul-General Acting Judicially.

We concur, C. C. Bennett, John R. Hykrs.

 

Source: North China Herald, 23 January,1899

 

U.S. CONSULAR COURT.

Shanghai, 16th January.

Before John Goodnow, Esq., Consul-General.

SHEKURY v. DOCTER.

  This was a claim by G. J. Shekury, a broker, against A. Docter, for Tls, 2,325 in respect of 25 International Cotton Mill shares which the defendant had failed to take up on the 31stof December, according to contract. 

  Mr. H. Browett appeared for the plaintiff, and the defendant conducted his own case.

  The plaintiff said that on the 6th September he sold to the defendant, through Mr. Elias, 25 shares in the International Cotton Mill for delivery on the 31st December. Witness attended at the Central Hotel on that day five times, but could not find the defendant, and he then left a letter for him.

  The defendant, in cross-examining the plaintiff, was frequently stopped by His Honour and told that his questions were irrelevant, as parole evidence seeking to upset the written contract before the Court could not be allowed.

  Defendant said he wished to show that his signature to the contract was obtained by misrepresentation.

  Plaintiff, further cross-examined, said that the contract was signed by him "for the concerned." He refused at the time to tell Mr. Docter who was the seller, but he would, if desired by the Court, now do so.

  Defendant was further questioned by the plaintiff as to how long he had been a broker, and as to certain business in Singapore.

His Honour - Here vis a plain contract signed by Mr. Shekury and accepted by you. I night make a contract with a coolie down in the street, and it would hold good whether that coolie had been in the Mixed Court half his life. I hope you understand, Mr. Shekury, that in making that illustration I do not intend to reflect upon you.

  Plaintiff denied that there was any agreement in regard to the contract other than appeared on the face of it.

  His Honour observed that if Mr. Docter were seeking to make out that he had been deceived by his representative, or go-between, his remedy was against that go-between.

  Mr. John William Graham, a member of the Brokers' Association, of Shanghai, was called to give evidence as to the form of contract in the present case being customary, but

  His Honour said it was not necessary.

  The Chinese hall porter at the Central Hotel gave evidence corroborating the plaintiff's statement as to his visits to the hotel on the 31st of December, in search of Mr. Docter. He also spoke to a letter being left by plaintiff addressed to the defendant.

  This closed the plaintiff's case.

  Mr. P. W. Irvine, in the firm of Messrs.  Sylva & Co., share brokers, was called by the defendant and asked to explain the meaning of certain terms, but his Honour ruled that this evidence was inadmissible.

  The Court at this stage rose for the day.

   18th January.

  SHEKURY v. DOCTER.

   The hearing of this case, arising out of a claim by G. J. Shekury, a broker, against A. Docter, for Tls,. 2,325 in respect of 25 International Cotton Mill shares which the defendant had failed to take up on the 31st of December, according to contract, was concluded. Mr. H. Browett appeared for the plaintiff, and the defendant conducted his own case.

  Mr. J. R. Elias was called by the plaintiff with the object of showing that the transaction was intended to be a matter of difference, and the shares were not intended to be handed over. The witness, however, could not remember this.

  The plaintiff gave evidence in support of his case, but no questions were asked by Mr. Browett. The plaintiff then addressed the court, quoting from the Hongkong Ordinances requiring the numbers of the shares to be given, which, however, he could not say applied to Shanghai.

  Mr. Browett in reply, contended that the contract was a valid one in all essentials and after quoting from the case of Bibb v. Allen, from the American law reports, urged that the plain tiff had used his best endeavours to deliver the shares.

  Judgment was reserved. 

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