Harney v Buffonge

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: Redhead, J.
• Judgment Date: 30 November 1992
• Neutral Citation: MS 1992 HC 15
• Docket Number: 43 of 1991
• Date: 30 November 1992

Harney

and

Buffonge

Redhead, J.

43 of 1991

High Court

Contract - Agreement on price — Reasonableness of price — Agreement between defendant and plaintiff for the rental of girders — No agreement on price — Each party claiming that a different price per day/girder was agreed upon — Price of $7.00 per day reasonable in the circumstances — Judgment for the plaintiffs.

Redhead, J.

1 The plaintiff is a building contractor. Ile hires for rent girders from time to time for use in the construction industry. The defendant is a trucking contractor.

2 According to the plaintiff's testimony on or about the 6th December, 1990 while he was driving in his vehicle from Plymouth towards the northern side of the island he was stopped by the defendant who told him that he defendant was in a bit of problem in that he needed some girders to rent. According to the plaintiff the defendant told him that he owed St. Clair Jeffers some money and he was trying “to cut it down” by dropping some sand and would like to rent the girders also to cut down the amount of money.

3 The plaintiff said in his testimony that he then told the defendant that he and Mr. Jeffers were in a company with these girders and he did not want any problems. It turned out as the plaintiff admitted in cross-examination that he and Jeffers were in a company which was formed in 1974. The company was formed to acquire equipment such as girders and jacks, to be used in the construction industry. They both fell out and as a result the plaintiff took half of the girders which they had acquired.

4 The plaintiff also testified that he asked the defendant how long he would need the girders for, he replied he dial not know but they needed them for “pouring out” a floor. He the plaintiff said he estimated the time they would be needed for was ten (10) days. The plaintiff said he told the defendant “it would take ten days and the ten days for twenty-nine girders would amount to $2,030. I said Eddie I want all my money up front because I have problems every time I rent out the girders or the jacks in collecting my money. He then asked me why I am treating him so hard. I said it is a business and I have to act like a businessman. I said okay what I will do, deposit me $1,200 now and the balance after you finish using them.”

5 According to the plaintiff the defendant promised to pay him the money, that is the deposit on the same day. On the following day the plaintiff said on his way to the bank he saw the defendant at a bank. He spoke to the defendant and asked the defendant for the money. After some argument the defendant took him to his home, wrote out a cheque for $1,000.00 and gave it to him.

6 The defendant admits that he negotiated for the rental of the girders with the plaintiff on behalf of St. Clair Jeffers but denied that when he did so that he agreed with the plaintiff to pay him $7.00 per day for each girder.

7 In his testimony the defendant said that he went to the plaintiff's house and this is where the first conversation took place about the renting of the girders and not. on the road as the plaintiff had testified. Continuing in his testimony the defendant said:–

“I said to the plaintiff, St. Clair Jeffers wanted me to rent some girders for him… He, (the plaintiff) said to me you know me and Mr. Jeffers have difference but you can rent them from me but I want some money up front. I said all right. I don't. have that amount but I will give you a cheque. He came by my house, I don't recall the exact date, it was a Friday afternoon. I gave him the cheque for $1,000.00.”

8 The defendant has insisted that the plaintiff never told him when they discussed the renting of the girders how much he would charge per day for each girder. He says he first knew what the charge was when the plaintiff presented him with the bill.

9 On 22nd March 1991, the plaintiff issued a writ against the defendant claiming the sum of $8,135 as the balance due ahd payable to the plaintiff by the defendant for the rental of the girders.

10 The Particulars of Claim by the plaintiff were stated in the following terms:–

1. “Rental of 29 girders at $7.00 per day per girder -	$2,030.00
Total rental for 45 days -	$9,135
Amount deposited -	$1,000
Balance due and payable. -	$8,135

11 It is not digputed by the defendant that he kept the plaintiff's girders forty-five (45) days. As I have said what is keenly contested is that a price of $7.00 was agreed between the parties.

12 The defendant in his defence admits that he rented 29 girders from the plaintiff on or about the 5th day of December 1990 but denies that he agreed to pay the plaintiff rental of $7.00 per girder per day. The defendant argues that no rental was agreed between him and the plaintiff.

13 By paragraph 4 of the Defence the defendant pleads as follows:–

“The defendant further says that the accepted rate charged for the rental of girders is $2.00 per girder per day, that he had the use of the said girders for the period of 45 days, thus making a fair and reasonable sum payable to the plaintiff of $2,610 less the deposit of $1,000, being a balance due and owing of $1,610.00.”

14 The simple issue as I perceive it is whether the plaintiff and the defendant did on 6th December 1990 make an agreement as to the price the defendant should pay per day for the use of the girders. And if not whether the sum of $7.00 per day for each girder is reasonable.

15 I now analyse the evidence: The plaintiff called three witnesses, Thomas Griffin, Abraham Murraine and Cortwright Charles. Griffin's evidence is to the effect that about 22 years ago he built a house for a Miss Palmer and he hired girders from the plaintiff at $7.00 per day.

16 He did concede in cross-examination that. the plaintiff is his close friend and in the end the plaintiff “dropped a few dollars” from the bill.

17 Abraham Murraine in his testimony said that one day towards the end of 1990 he was working for the plaintiff. The defendant approached the plaintiff, told the plaintiff that he needed some girders to rent. According to the witness the plaintiff said he did not want to rent his girders because he gets problems when he rents them. Murraine In his testimony said that the defendant said to the plaintiff “don't be so hard rent me the girders.” The plaintiff told the defendant that he had to pay him some money up front. The plaintiff told the defendant to pay him $1,200 up front. The plaintiff asked the defendant how...