Hodd v Pinkerton

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: Redhead, J.
• Judgment Date: 03 December 1992
• Neutral Citation: MS 1992 HC 17
• Docket Number: 157 of 1988
• Date: 03 December 1992

Hodd

and

Pinkerton

Redhead, J.

157 of 1988

High Court

Contract — Existence — Contract entered into between defendant and plaintiff to draw plans for defendant's home — Drawings were done and defendant paid $2,000 deposit — Defendant now denies the existence of the contract — Plaintiff's evidence accepted as correct — Court ordered a reasonable sum to be paid — Judgment for plaintiff.

Appearances:

Mr. Jean Kelsick for the Plaintiff.

Mr. K. Allen for the Defendants.

Redhead, J.

1 The plaintiff is an Englishman. He has been residing in Montserrat for the past twenty-two years. He is by profession an Architect or an Architectural Engineer. He was qualified in 1935 in England. He is a member of the Royal institute of Architectural Engineers. He is also a member of Montserrat Association of Architectural Engineers.

2 The first named defendant is a Canadian National. He is a grocer. According to this defendant he first met the plaintiff in Montserrat in December, 1982. He asked the plaintiff to buy lands for him here. The plaintiff told him that he the plaintiff could not do it himself, but would get a local person to do so for him.

3 According to the plaintiff he first met the defendants in 1975/76. In 1983 they, defendant & his wife, asked him to advise them on purchasing some lands for building. There was a land tax auction coming up at the time. The plaintiff said in his testimony that he and the defendants visited some sites. He advised them on the best ones. Continuing the plaintiff said:-

“I bid at this auction. As a result the defendants acquired title to property at Olveston. I did not charge them a fee. The defendants were not here when I bid at the auction.”

4 The plaintiff testified that having secured title to the property, the defendants got in touch with mm early in 1985. They contacted him by telephone and asked him to prepare a sketch plan for the property. The defendants subsequently came to Montserrat. They contacted him by telephone. He had a meeting with the defendants at the Montserrat Golf Club because they said they wanted him to design a house for the lot. According to the plaintiff at the meeting, the defendants gave him a list of accommodation, a brief of what they required. He accepted the brief. The plaintiff said he submitted his fee to the defendants. He told them that he could not give them an exact figure as the scale of charge was on a sliding scale. But the fees were usually worked out between 7 and 10 percent of the cost of building.

5 The plaintiff said that he told them that the fees were broken down into segments; 35 per cent of the total fee being due on completion of final sketch plans; 40 per cent on completion of work and drawing specifications and the remaining 25 percent for supervision of construction. The plaintiff testified that these charges are based on his institution guidelines. The plaintiff in his testimony said that he began work on the plans about a couple of months after the meeting. That was 14th March, 1985.

6 He testified that after ne had finished the first sketch plans, he sent by Air Mail post copies of the plan along with a covering letter. He got no response from the defendants. According to the plaintiff he met with the defendants early 1987 when they came to Montserrat. The defendants spoke with him on the telephone. He made an appointment for the defendants to come to his office. The defendants discussed the changes they wanted made on the design. The plaintiff said he had two further meetings with the defendants to find out what they wanted. There were about three meetings in all which took place at his office.

7 The plaintiff testified that he prepared a final sketch plan (Exhibit DH5) after the third meeting. He said he delivered a copy of this final plan and a handwritten fees on account to the defendants at the house where they were staying on the afternoon before they left the island.

8 According to the plaintiff the defendants seemed very happy with the final draft plan. The defendants said that they did not have any money in their account. They gave him a post dated cheque for $2000 and promised when they return to Canada they would make arrangements to pay it, his fees, when they could.

9 The plaintiff testified that he estimated the cost of building the house to be $350,000. He calculated this on the taxis of what it would have cost at the time to build per square foot. The plaintiff submitted a bill to the defendants $9,800. and gave the defendants a credit of $2,000. He is claiming the sum of $7,800. from the defendants as professional fees.

The first bill sent by the plaintiff to the defendant is dated 30th March, 1987 and is as follows:-

Fees based on 6% estimated cost of — $350,000

Now due on being 35% of total — $9,800

Less post dated cheque of — $2,000

Disbursements: printing of drawings — $10.00

Search fee — $5.00

Total now due - — $7,815.00 EC

10 On 13th May, 1987 the plaintiff wrote to the defendants (Exhibit D&H 8) in the following terms:-

“Dear John and Carol,

It is well over a Month since I sent you my account, and when we last spoke on the telephone you said you would call me on 21st April, but I heard nothing from you. Of course, it may just be delays in the mail.

However, you must realise that we all have bills to pay, and in accordance with normal business practice, I have to charge monthly interest on overdue accounts. Accordingly I am enclosing a revised account. It you have already sent the money, please disregard this account.

Please note that it takes six weeks for a personal cheque on an overseas account to clear, so to avoid further interest charges, please remit by bank draft or certified cheque.

Yours sincerely,

Sgd: David K. Hodd M.S.A.A.T”

11 The plaintiff again wrote the defendants on 21st January, 1967 referring them to letter of 30th March, 1987 and reminding them that his fees were due. He sent them a further revised fees account. The plaintiff received no response from the defendants. On 16th December, 1988 the plaintiff issued a writ of summons against the defendants claiming his fees, interest of $1,638. up to that time and costs.

12 The defendants by their defence deny that they entered into oral agreement or any agreement with the plaintiff. By paragraph 4 of their defence they plead as follows:-

“The defendants further stated that any work done or carried out by the plaintiff, was not done at the request of the defendants, but was done or carried out by the plaintiff, gratuitously, solely with the hope of attracting the defendants as future clients.”

13 The defendants further pleaded that the plaintiff., when he offered the sketch to them without expressly or impliedly made known to them that they were under no obligation to renumerate or reward the plaintiff in anyway, and that the defendants repeatedly advised the plaintiff that they were not building any structure in Montserrat in the near future acid possibly never.

14 The defendants further allege by their pleadings that it was only in winter of 1987 upon receiving a bill from the plaintiff, that the defendants were informed in anyway that the plaintiff was purporting to charge them for alleged work and interest for same.

15 The first named defendant (hereinafter referred to as the defendant) said in evidence that when he returned to Montserrat in March, 1967 after receiving the first sketch plan from the plaintiff, he telephoned the plaintiff because he wanted to speak to him because he had heard “rumblings” about his owing the plaintiff. He met with the plaintiff at the golf course, he, the defendant, asked the plaintiff what money he owed him, the plaintiff continuing in his evidence the defendant said:-

‘He said for the sketch I sent up to you. At that point, no price was mentioned. The plaintiff wanted to know what we did not like about the two storey plan. He said let me do something else for you…”

16 At this point in time we wanted to know how much it was going to cost me he said $200. We went back, not the same day. Carol and I met the plaintiff at his office. We went over a few things about the drawings. He said he would get the sketch to me before we left, I paid him the post dated cheque at his office.

17 I make the observation that when the defendants allege in paragraph 4 of their defence that the work carried out by the plaintiff was done gratuitously is not borne...