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Colonial Cases

Jurgens v. Jones, 1899

[employment law]


 

Jurgens v. Jones

Supreme Court for China and Japan
Hannen CJ, 20 June 1899
Source: North China Herald, 26 June 1899


 

LAW REPORTS.

H.B.M.'S SUPREME COURT.

Shanghai, 20th June.

Before Sie Nicholas J. Hannen, Chief Justice.

JURGENS v. JONES.

   This case, in which the plaintiff, Mr. Louis Oxley Jurgens, a civil and mining engineer, sued Mr. James Jones, the manager of the International Cotton Mill, was set down for hearing.  Mr. F. Ellis (Messrs Browett & Ellis) appeared for the plaintiff, and Mr. J. H. Teesdale (Messrs. Stokes & Platt) for the defendant. Upon his Lordship taking his seat,

   Mr. Ellis applied for leave to amend paragraph 6 of the petition by adding the words, "and on the return of the plaintiff from Weihaiwei, the plaintiff, at the request of the defendant, rendered the defendant further professional services in connection with the said report." He remarked that the proposed addition deals with the same point as the rest of the paragraph, that was the continuation of professional services, and raised no new issue whatever.

   Mr. Teesdale said he should like an adjournment if the petition were granted, as it brought in a second report upon which he wished to consult an expert who was at present in Amoy.

   His Lordship allowed the proposed amendment, and adjourned the hearing of the case for a week.

 

Source: North China Herald, 3 July 1899
 

LAW REPORTS.

H.B.M.'S SUPREME COURT.

Shanghai, 27th June.

Before Sir Nicholas J. Hannen, Chief Justice.

JURGENS v. JONES.

  In this case the plaintiff, Mr. Louis Oxley Jurgens, a civil and mining engineer, sued Mr. James Jones, the manager of the International Cotton Mill, for Tls. 2,520 on account of professional services alleged to have been rendered in connection with certain gold prospecting in the neighbourhood of Weihaiwei.  Mr. F. Ellis (Messrs. Browett & Ellis) appeared for the plaintiff, and Mr. J. H. Teesdale (Messrs. Stokes and Platt) for the defendant.

  The petition of Louis Oxley Jurgens the above-named plaintiff, shows as follows:

  [1.] - The plaintiff is a British subject and a Civil and Mining Engineer and resides at Shanghai in the Empire of China.

  [2.] - The defendant is also a British subject and manager of the International Cotton Manufacturing Company Limited at Shanghai aforesaid.

  [3.] - In the month of February last the plaintiff was professionally employed by the defendant to proceed to Weihaiwei in the province of Shantung China for the purpose of making a survey of the golf-bearing properties of the country in and around Weihaiwei and to report thereon to the defendant.

  [4.] - In accordance with instructions received from the defendant the plaintiff left Shanghai in February last for Weihaiwei. The plaintiff was engaged for a period of nearly three weeks in making the said survey and on his return to Shanghai delivered to the defendant his written report thereon.

  [5.] - In the month of March last the plaintiff in accordance with instructions received from the defendant again proceeded to Weihaiwei with a Mr. Rhodes on business in connection with his (the plaintiff's) report, here the plaintiff was engaged for over a month.

  [6.] - On the 9th of May instant, the plaintiff furnished to the defendant a statement of account of his fees and expenses for such professional services rendered, such account amounting to Tls. 2.520.60 s.s. and on the return of the plaintiff from Weihaiwei, the plaintiff, at the request of the defendant, rendered to the defendant further professional services in connection with the said report.

  [7.] - The plaintiff has requested payment of the defendant of the said sum of Tls. 2,520.60, but the defendant has refused and still refuses to pay the same or any part thereof.

  The plaintiff therefore prays:

  [1.] - That the defendant be ordered to pay forthwith to the plaintiff the said dun of Tls. 2,520.60 together with interest thereon at the rate of 7% per annum from this date until payment.

  [2.] - That the defendant be ordered to pay the costs of the suit.

  [3.] - That the plaintiff may have such further or other relief as the nature of the case maty require.

  Mr. Ellis, in opening the case for the plaintiff, said as the defendant in his answer denied all the allegations set forth in the plaintiff's petition it devolved upon him to satisfy his Lordship upon these points: the employment of the plaintiff by the defendant to do certain professional work, the performance of that professional work, and the reasonableness of the remuneration claimed for that work. Evidence would be given to show that in the month of February last the plaintiff was instructed by Mr. Jones to proceed to Weihaiwei and when he was there he was engaged for about three weeks doing certain professional work. Upon his return to Shanghai he furnished to the defendant a report of his work at Weihaiwei. It would also be proved in the course of this case that the defendant instructed the plaintiff a second time to go to Weihaiwei in the month of March last and he was then accompanied by Mr. Rhodes. The plaintiff would tell the Court how he was employed on that second visit and the time he was engaged and for which he claimed remuneration. But the services did not end there. On his return a second time he was instructed to do certain specific work by the defendant in connection with this report. Unfortunately there was no agreement in writing between the parties as to what the remuneration should be.  But the plaintiff made every effort to have this business placed on a proper basis, but he was unsuccessful. He would satisfy the Court that there was an implied contract of employment and therefore he was entitled to some remuneration. If his Lordship was satisfied the defendant did employ the plaintiff and that certain work was done it would only remain for his Lordship to say what that remuneration should be. 

  He (Mr. Ellis) did not intend to prove that it was good work or work of a scientific character, for the quality of the plaintiff's work had never been called into question. In an account which would be produced to the Court there would be an admission by the plaintiff that he had received a certain amount of remuneration, but as was contended insufficient remuneration.

  Mr. L. O. Jurgens, the plaintiff, was then called. He described himself as a civil and mining engineer and said that on the 24th of February Mr. Jones sent for him and asked him to go to Weihaiwei and report on the gold there. Witness agreed. He went to Jardine, Matheson & Co. and arranged about his ticket, which was sent to Mr. Jones for payment and the witness received it from Mr. Jones. He asked Mr. Jones about an agreement for remuneration, and Mr. Jones said he would get one drawn up by Mr. Platt.  However, an agreement was not drawn up as Mr. Jones said he had not had time to consult Mr. Platt. Mr. Jones said to him, "Charge what you like, there is plenty of money behind it." Mr. Jones gave him $200 for hotel and incidental expenses. Witness arrived at Weihaiwei on the 17th of February, and returned to Shanghai on the 18h of March. Whilst up there he surveyed the country for about twenty miles radius. The weather was very cold and witness underwent a good deal of hardship. 

  Upon his return to Shanghai witness furnished the defendant with the first part of his report. About the 27th of March witness again went to Weihaiwei, accompanied by Mr. Rhodes, who was sent by Mr. Jones to verify hs (witness') report. They were engaged at work until the 8th of April, going over the country together. Mr. Rhodes after this wrote down confirming witness' report, and they bought 35 to 40 mow of land required for mining purposes. 

  About the 15th of April witness was back in Shanghai. He saw Mr. Jones who asked him to interview the manager of the Shanghai Engineering and Dock Company in regard to machinery. When witness came down he brought with him a letter from Mr. Rhodes to Mr. Jones, dated the 7th or 8th of April.

  Mr. Ellis called for the production of this letter.

  Mr. Teesdale did not want the whole of the letter read.

  Mr. Ellis said he only wished to draw attention to the following programme: 

  "There is, however, no necessity for Mr. Jurgens to remain here, but I wish it to be known that he has been indefatigable in his efforts and has been of the greatest possible assistance. On my return I shall make a suggestion to your co-Directors as regards his future employment which I venture to hope will prove acceptable.  He is a good and honest workman, and it is due to him to say that I could not have been so successful as I have been if he had not consented to work with me and lent me his hearty co-operation."

  Plaintiff, continuing, said that he saw Mr. Blechynden with regard to machinery, and also Professor Lyman concerning the analysis of certain "stone." The latter gave a very favourable report. On the 23rd of May witness furnished another report to Mr. Jones. On the 8th of May witness made up his account with Mr. Jones, giving credit for $825 and showing a balance of Tls. 25.20.

  Cross-examined, witness said he was a duly qualified mining engineer and had had considerable experience in South Africa, where he was connected with the Kimberley nines. At the time he started for Weihaiwei he had a regular business and office here. He did not consider that it was un-business-like for him to have undertaken the work without an agreement with Mr. Jones. At the time he went up to Weihaiwei he had other business. He had had conversations with Mr. Marcus Wolff about the business, but nothing was said as to his payment. The work Mr. Jones gave him occupied all his time.  In fact from the 24th of February to the 8th of May he was fully engaged for Mr. Jones. When he was not exploring he was writing his report. As regarded the agreement for his board and lodging at Weihaiwei, Mr. Jones telegraphed up to Mr. Ramsay to receive him, and he believed an account would be sent down by Mr. Ramsay. When witness returned to Shanghai he told Mr. Jones of Mr. Ramsay's hospitality, and Mr. Jones said: "Why does he not send an account?" adding that it would be paid when it was sent in. Witness did not think that his charge which worked out at about a thousand taels a month was excessive. There was no scale of charges, but he usually got five hundred to a thousand guineas for a report.

 Mr. Teesdale - Ah, but that's in South Africa; things are very different there?

  Plaintiff - Yes, there are more facilities.  Continuing, he said he knew but was never employed by Mr. Zee Lan-char.

  Mr. John Blechynden, manager of the Shanghai Engineering Dock Co., deposed to having several interviews with the plaintiff concerning gold-mining machinery. He also saw Mr. Jones, and it was understood if machinery were needed his company would supply it.

  In reply to Mr. Teesdale witness said he was not a mining expert, and without reading it again he could not pass an opinion upon the value of Mr. Jurgens' report. He made suggestions to Mr. Jurgens regarding the insertion of certain additional machinery. He thought the plant would have been sufficient without those additional articles.

  Mr. Teesdale, in briefly opening the case for the defendant, said he would prove that there was a verbal contract between the parties as to the services rendered by the plaintiff; if such evidence was not sufficient for his Lordship it remained to the Court to fix a reasonable price to be paid for the services rendered. About $825 was paid to the plaintiff, which was a sum in  excess of what he was entitled to, and as to the value of the report, its real  value would be spoken to by experts. The services of the plaintiff, in short, were valueless.

  Mr. James Jones, the defendant, said that on the 19th of September the plaintiff's sister introduced him to witness. Witness then went to Japan, and the first man he met on the Bund after his return was the defendant. Several times after that plaintiff and his sister saw witness, and the latter, before her departure for home, asked him to try and do something for her brother. The plaintiff was in pecuniary difficulties, and for his immediate necessities on the 24th of February witness gave him $200 and suggested he might go up to Weihaiwei and prospect for gold. Terms were not mentioned between them until the plaintiff returned a second time from Weihaiwei. It was absolutely untrue that witness said anything about Mr. Platt drawing up an agreement, and moreover, Mr. Platt was not here at the time, and did not return until March. 

 About the 2nd of May he had an interview with the plaintiff in the domino room of the Shanghai Club. Mr. Jurgens said he had heard he was about to employ Mr.  Kingswell.  Witness denied it, and said he would be prepared to enter into an agreement with the plaintiff. They discussed the terms and the plaintiff agreed to go for a living wage, which was to be $250 a month and a commission on profits. Plaintiff was also to have a house.  The second time he went up to Weihaiwei the plaintiff was in the employ of Messrs. Morrison and Gratton, who retained him to be employed on the Shanghai-Chinkiang Railway. That was the reason no agreement was drawn up between them.

  One morning later, about half-past eight, the plaintiff stopped him on the Bund and was about to read a letter he had received from Mr. Rhodes. Witness said it did not interest him, and the plaintiff was rather rude. Witness told him to see him when he was calmer, and he replied: "I have done with you and the Weihaiwei Syndicate, and I'll make you pay Tls. 3,000." The next thing was the receipt of the account through Messrs. Browett and Ellis. Taking his remuneration at $250 a month, and the time he had been employed, the plaintiff had been over- paid to the extent of about $387. Witness had submitted the plaintiff's report to Mr. Kingsmill and Mr. Hernan, who were mining experts. The latter gentleman was now at Weihaiwei for witness and was being paid $300 a month.

  Mr. Ellis - Do you consider it an act of charity to employ one man as against other equally competent men and not pay his fees?

  Mr. Jones - That is an involved question which I do not understand.

  The Judge - I think, Mr. Ellis, it is a question which you would be able very much better to impress upon me.

  Defendant, in further cross-examination, said when he got the plaintiff's report, which stated that his investigation showed 7 ounces of alluvial and 5 ounces of quartz gold to the ton, he laughed.  It was too good, when they heard of a pennyweight to the ton paying. After that he sent up Mr. Rhodes to make investigations.

  Mr. Ellis put in the following letter written by Mr. Jones after the receipt of the plaintiff's claim -

Shanghai, 24th May,1899

[Re L. Oxley Jurgens' Account.]

GENTLEMEN,

  I have absolutely no knowledge of this in any way whatever, and must simply decline absolutely to recognise it in any way.

  M. Jurgens was after repeated request from his sister that I would do something for him asked by me personally to go to Weihaiwei as an act of charity and any remuneration which he had received from me gives him no claim to a further amount and that such a ridiculous one as named in his statement.

    His present action puts him into the position that if any claim lies it is on my side and for me to make; not to him.

Yours faithfully, (Signed) JAS. JONES.

  Mr. Ellis - What was the result of Mr. Rhodes' visit?

  Mr. Jones - A very sorry business. Mr. Rhodes upset the Admiral and everybody connected with the place and the result is that the working has been stopped.

  Replying to further questions, defendant said that following Mr. Rhodes' report a syndicate was formed, but it had stopped working. Mr. Rhodes' report was absolutely useless, as a matter of fact.

  The case was adjourned.

28th June.

  Upon his Lordship taking his seat,

  Mr. Ellis applied for permission to call Mr. Jones and ask him some further questions in cross-examination.

  Mr. Teesdale asked if that we granted he might have an opportunity of further cross-examining the plaintiff.

  Mr. Jones accordingly went into the witness-box. He admitted writing the following letter to the plaintiff on the 25th of April last.

  Dear Mr. Jurgens - Please come and see me this afternoon so that we can fix the machinery and other immediate necessaries for Weihaiwei.

Yours truly, JAS. JONES.

By Mr. Ellis - Can you tell me when the syndicate referred to by you was formed? - No.

  Do you say it was formed after the report Mr. Rhodes made to you? - Yes, and registered.

  What was the date of that report? - I could not say.

  With regard to Mr. Hernan, is that his real name; not Kernan? - No, Hernan.

  He is at present at Weihaiwei; what are his qualifications? - A certificate from the Commissioner of Mines of Western Australia, and from the Inspector of Mines.

  Is he an expert or a miner? - According to his certificates he is an expert.

  Mr. Ellis - As my learned friend proposes to call Mr. Jurgens, there is one question I should like to ask Mr. Jones with regard to the $50 which Mr. Jones says he never refused to pay Mr. Ramsay. I have a letter written to Mr. Jurgens by Mr. Ramsay in which he says that Mr. Jones refused to pay the amount.

  His Lordship - Supposing that Mr. Ramsay says that Mr. Jones did refuse to pay, it does not prove that Mr. Jones did refuse to pay.

  Mr. Ellis - In the letter he says ------

  His Lordship - No, no.

  Mr. Jurgens was then re-called and further cross-examined by Mr. Teesdale.

  Those letters you produced yesterday, in what language are they written? - In French.

  You have no British certificates? - Yes, certainly. I was in 1888 Assistant Municipal Engineer in Shanghai.

  His Lordship pointed out that Mr. Teesdale was asking questions which he should have put during his original cross-examination of the plaintiff. In Mr. Ellis' case the questions arose out of a letter which had just come to his knowledge.

  Mr. Teesdale - What I want to ask the witness is what his business was at the time he entered into the contract.

  His Lordship - You actually asked him that question yesterday. You may be content with the answer that he gave you yesterday.

  Chun Fai-ting, one of the business managers of the China Merchants' S.N. Co. examined by Mr. Teesdale, said his Company had from time to time sent mining engineers to prospect for minerals in various parts of China. An arrangement was generally made before the work was undertaken. The usual remuneration would be Tls. 250 a month, and if a man were sent to prepare a report he would be paid Tls. 500. They usually gave expenses.

  Mr. Ellis - For what period of time would they usually be engaged for the Tls. 500? - I think he was away for twenty-four or twenty-five days.

  You have never paid a higher fee? - No.

  This closed the evidence, and Mr. Teesdale and Mr. Ellis having both addressed the Court,

  His Lordship in giving his decision said - Without going into matters which actuated Mr. Jones at the beginning of the transaction, it seems to me quite plain that Mr. Jones employed Mr. Jurgens to do something. He employed him, and Mr. Jurgens did it. There was no agreement made with regard to the remuneration Mr. Jurgens was to receive as Mr. Ellis has pointed out, and as in reality Mr Jones acknowledged before the commencement of a part of the work, and what took place afterwards was an agreement, it seems to me, to do something on the part of Mr. Jurgens if a certain condition were carried out. I am left, therefore, entirely to my own judgment to say what should be the remuneration. With regard to this, the only evidence that I have before me is from Mr. Jurgens to the effect that he charges 500 guineas for a report, and Mr. Chun Fai-ting, who says that he paid Tls. 250 a month and for a report occupying twenty-four or twenty-five days Tls. 500.

  Mr. Ellis - I understood Mr. Chun Fai-ting to say that that was by agreement.

  His Lordship - Quite so. He paid Tls. 250 a month but where it had been to survey s mine and make a report he had paid a sum of Tls. 500. My task is a somewhat difficult one, for it is quite plain that no one could be expected without an agreement to pay any such sum as 500 guineas for such work as was done in the present case, and I am therefore obliged to do what I can with what appears to be the only independent evidence, Mr. Chun Fai-ting. 

  Now his evidence leads me to suppose if a person received, say, Tls. 300 a month and expenses that they would be very well rewarded. Here we have the expenses of this whole thing amounting to Tls. 127, and the amount that was paid was Tls. 606; so that leaves about Tls. 470 as remuneration for work done. That seems to me very nearly the amount, and I do not think, taking all the circumstances into account, we can fairly say that Mr. Jurgens has not received Tls. 606 altogether, and having spent Tls. 127 out of his pocket, I do not think I can consider that it had been proved to me - and it is for the plaintiff to make out his case - that he is entitled to anything more.

  I am, therefore, in the position of being compelled to dismiss the petition of the plaintiff with costs, on the ground that there was no agreement that he was entitled to more than he has received, and which I consider on the evidence which has been brought before me about sufficient. I dismiss the petition with costs.

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