Downs et Al

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: Saunders, J
• Judgment Date: 24 March 2000
• Neutral Citation: MS 2000 HC 1
• Docket Number: No. 36 of 1996
• Date: 24 March 2000

Ryan Investments Ltd.

and

Downs et al

Georges, J.

No. 36 of 1996

High Court

Contract - Contract to repair premises — Whether contract was for costs plus percentage or was a fixed price contract — Failure of contractor to present proper accounts — Burden of plaintiff in civil case — Whether contractor entitled to rely on quantum meruit — Plaintiff's claim dismissed — Judgment for defendants on counterclaim regarding failure of plaintiff to complete contract to repair premises.

Saunders, J

1 It beats me that three very cultured and professional people should choose to enter into a building undertaking, worth at least US$75,000.00, entirely on an oral basis. But so they did. It is not therefore surprising that major disputes subsequently arose between them. Those disputes came before me for resolution.

2 On one side of the dispute is Mr. John Ryan. Mr. Ryan is a former Financial Secretary of Montserrat. He is now the Managing Director of Ryan Investments Company. Among other services it provides, that is a construction company. On the other side of the dispute are Mr. and Mrs. Patrick Downs. The Downses are an American couple.

3 In February, 1995 the couple came to Montserrat looking for real estate to purchase. It was their intention to acquire property that could be used as a restaurant and bed and breakfast. The couple was shown a building in Foxes Bay that looked promising. It was a nearly completed house that had been deserted for sometime and was therefore in a sorry state, they arranged to have an architect and a contractor meet them at the property the day after it was shown to them. The contractor who met with them was Mr. John Ryan.

4 There was tremendous conflict in the evidence presented. I have little hesitation in preferring the testimony of the Downses and their witness to that of Mr. Ryan and his witness, Samuel Gibson. Mr. Gibson was called to give evidence as to work that was done on the building but he could not even recall how the property was laid out. Even allowing for the fact that he was asked many questions that called for a recollection of great detail, his evidence was entirely unconvincing.

5 Under cross-examination, Mr. Ryan too was unimpressive. For example, he could not remember if he had gone from room to room with the American couple the day he first met them. He could not remember if he had taken measurements as to where a bar could be constructed. He “might have indicated that the pool might have costed US$30,000.00 and that the rest of the building would be about $40,000.00” but the impression given was that he wasn't sure that he had done so. He did not remember whether it was he who had driven the couple back to their hotel after that first meeting. He insisted that apart from the shopping in Miami, he had conducted no business with Mrs. Downs in the initial stages of this matter.

6 I find that last statement very difficult to accept. Even Mr. Ryan's counsel concedes that Mrs. Downs, to put it mildly, is more assertive than her husband is. It is inconceivable that Mr. Ryan would have had serious business discussions with Mr. Downs only while Mrs. Downs was in Montserrat with no good reason for her being absent from those discussions.

7 This case was tried over four years after the events giving rise to the suit It can hardly be expected that witnesses would be able accurately to recount those events. Some of Mr. Ryan's lapses that I have just mentioned are admittedly not of great significance. Even so however, on the evidence presented to me the defendants appeared not only to have a better recollection of events but also to be more forthcoming, credible witnesses.

8 I find as a fact that Mr. Ryan examined the building with the couple that first Sunday that they met at the site. They went from room to room. This examination was not a cursory one. It took well over an hour and a half. During this time Mr. Ryan took measurements and made estimates. Upon the conclusion of this examination Mr. Ryan and the couple agreed that Mr. Ryan would do the necessary repair work and would add a swimming pool.

9 I further find that the parties agreed there and then that the renovation work would cost US$30,000 for the addition of the swimming pool and US$40,000 to US$45,000 for the remainder of the building. The couple made it clear to Mr. Ryan that they did not wish the works, including the materials, to exceed the sum of US$75,000.00. Mr. Ryan assured them that the cost could even be lowered if they bought most of their materials in the United States.

10 Mr. Ryan has pleaded and given in evidence that his contract was a cost plus percentage contract. By his own admission, the first time any percentage was ever indicated was in the latter part of October, 1995.This would have been some six months after the commencement of work.

11 I do not believe that the couple would have contracted with Mr. Ryan to give him a blank cheque, so to speak, to simply tack on the percentage he thought...