Forester v Douglas

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: Byron, J.
• Judgment Date: 15 March 1983
• Neutral Citation: MS 1983 HC 6
• Docket Number: No. 24 of 1982
• Date: 15 March 1983

High Court

Byron, J.

No. 24 of 1982

Forester

and

Douglas

Appearances:

Mr. John S. Weekes for the plaintiff.

Mr. John C. Kelsick for the defendant.

Tort - Damages — Conversion

Facts: An agreement existed between the parties whereby the defendant was to keep certain animals for the plaintiff and retain part of the profits for himself. The question was whether the defendant was liable for conversion.

Held: There had been a flood in which most of the animals had been swept away. Ten of these had remained which the defendant kept for himself. The defendant was liable for conversion since he converted the animals to his own use. Judgment entered for the plaintiff in the sum of $2,500.00

1 Byron, J. The plaintiff issued a specially endorsed writ on 5 ^th March 1982 and alleged that she had delivered to the defendant a number of animals for him to look after on voluntary basis, and that despite written and verbal requests the defendant did not deliver up the animals to her. She alleged that he was guilty of negligence in their custody and she claimed $19,600.00 being the alleged value of the animals and their offspring.

2 The defendant in his defence issued on 4 ^th May 1982 denied that he was guilty of negligence. He alleged that he had the animals on a contract to look after them in consideration of sharing equally with the plaintiff in the value of the increase there from, and that the animals were apparently washed away in a flood on 3 ^rd September 1981 while the defendant was visiting in England, and that any loss which the plaintiff suffered thereby was due to the Act of God for which he was not liable.

3 After the evidence was given counsel for the defendant waived the issue of negligence and said that the defendant's position was that the plaintiff would be entitled to judgment for any animals which the court found the defendant was holding for the plaintiff at the time of the flood which were not destroyed, subject to his rights under the contract of agistment if the court found there was one. The facts I found are as follows:–

4 The plaintiff and the defendant were intimate friends. I believed that they were on good terms since 1951. At some time they became lovers. At that time the defendant had a 12-acre paddock at Amersham where he kept cattle. He had about 20 head of cattle. He also had a 5-acre plot of land at Dagenham Mountain where he had a banana ground and other cultivation. He also kept some animals there. The plaintiff had a cow and heifer, which were being kept for her by James Pond for the consideration that he would be entitled to half the value of the improvement and half the value of the increase.

5 One night in 1974 while they were together in bed the plaintiff told the defendant that she wanted to take the cattle from James Pond have them valued and pay him his share. She then told the defendant that she would like him to look after the animals for her on terms of his being entitled to half the value of the improvement and half the value of the increase. He told her that he would look after them but that he did not want and remuneration, and her two sons could help him to shift the animals.

6 The following day the plaintiff had the animals valued and the value was $800.00. She settled with James Pond and brought the animals to the defendant who took them to his ground at Dagenham Mountain. The cattle consisted of a cow with a heifer. That heifer had warts on it and after discussion the plaintiff told the defendant to sell it and he sold it for $500.00 to Mr. Watts and gave her all the money.

7 The following year the plaintiff got married to someone else. The defendant continued to look after the animal and their intimate friendship continued. The plaintiff did not frequent the place where the animals were kept. Her children did not in fact help the defendant to look after the animals and they were looked after by the defendant and his children. The result of this is that the plaintiff was not fully aware of what was going on and had to rely on the defendant for information.

8 The plaintiff gave the defendant some sheep and goats to look after. The defendant built a pen on his land at Dagenham Mountain and put them there. They were looked after by his sons who used to cut food and feed them there. There was an issue as to when the defendant started to look after them. He said that he was looking after them from about the same time she gave him the cows to look after in 1974. She said she gave him the sheep in 1977 and the goats in 1980.

9 During the following years the cow had four calves, 2 being bulls and 2 being heifers. One of the heifers died as the cow was standing up when it was born and it fell and sustained a broken neck. The other heifer was sold when it was about 2 years old to Dr. Irish for $1,300.00. One of the bulls was sold to butcher Gerald for $1,300.00. In respect of the other bull there was some dispute. I believed that it was sold to Thomas Irish for $1,400.00. When Mr. Irish was giving evidence he explained that he had a heifer valued at $500.00...