Marshall v Lindsey

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: Redhead, J.
• Judgment Date: 01 January 1992
• Neutral Citation: MS 1992 HC 2
• Docket Number: 62 of 1990
• Date: 01 January 1992

High Court

Redhead, J.

62 of 1990

Marshall

and

Lindsey

Appearances:

Mr. J. Kelsick for the Plaintiff.

Miss E. Henry for the Defendant

Contract — Contract for the repairing of the plaintiff's house which was damaged by Hurricane Hugo — Plaintiff claims various sums paid to the defendant for tyres, money paid for bringing workers to Montserrat from Trinidad and insurance payments — Claim succeeded for amount due from purchase of tyres — Defendant denied that plaintiff advanced any money to bring Trinidadians to work in Montserrat — Plaintiff not entitled to be reimbursed as importation of Trinidadian labour was at his request and his action — Defendant had communicated his intentions to leave the plaintiff's employ before he received the plaintiff's letter and was dismissed by plaintiff — Judgment for plaintiff.

Redhead, J.

1 The plaintiff is a retired businessman. The defendant is a building contractor.

2 Hurricane Hugo struck Montserrat on the 17th September, 1989. It did quite a lot of damages. The plaintiff's house was damaged. As a result he hired the defendant to repair his roof and to do some additional work on his house.

3 The plaintiff and the defendant entered into a written contract. It is my view that because of the way the case was conducted. I should refer to most of the contract which is in the following terms from clause 2 of the contract reads as follows:-

“It is agreed that Emmanuel Lindsey construction company will during the period of this agreement repair and remodel the house Woodlands (known as “Sedpoint”) and owned by Austin C. Marshall as well as the former Radio Antilles house in Olveston known as “Windsong” and owned by Monarch Bicycle Company (Antigua) Ltd., and or any other construction or remodelling projects as specified by either Austin Marshall or Monarch Bicycle Company.

4 This agreement calls for the fulltime, except one hour a day, service of Emmanuel Lindsey to personally act as contractor to hire, tire and to be fully responsible for all employees, labourers and tradesmen to make payment of wages to all personnel, and to comply with any and all Government Laws and Regulations including taxes social security and insurance for the duration of this contract. As part of this contract Mr. Lindsey agrees to hire and supervise an independent electrician and sub-contractor needed for the construction, subject to approval by Mr. Marshall and to provide all trucking needed for the projects. In addition agrees to provide all tools to be used on the lob, to be responsible for transport costs including truck repairs and tire replacement and to provide all maintenance of his truck and concrete mixer. It is further agreed that Mr. Lindsey will hire an adequate and well qualified crew of carpenters, masons and labourers available to do the necessary and will also make his best efforts to secure maximum productivity while maintaining the lowest costs for the construction.

5 This contract is for labour only and all bills for such labour submitted by Mr. Lindsey will be promptly paid upon approval by Mr. Marshall. Mr. Marshall agrees to supply all materials needed for the construction projects. Mr. Marshall has the right to cancel this agreement with notice should Mr. Lindsey not perform the remodelling and repairs satisfactorily or should Mr. Lindsey not be on the job full time during the duration of this contract.

It is agreed that this contract while initially covering two different houses with two different owners can be extended to complete those projects it necessary or to include additional projects should all parties agree.

Signed Austin Marshall

Acting for himself and

Monarch Bicycle Co. (Antigua) Ltd.

Signed Emmanuel Lindsey

19th October, 1989”

6 There was the AGREEMENT FOR PAYMENT whereby Mr. Lindsay will receive a weekly salary of $600.00 EC: for his fulltime services and an additional monthly trucking fee of $2,100.00 up to an annual total of ($25,200.00) fuel and driver will also be paid, however any outside trucking fees will be deducted from the $2100.00 each month.

7 At the end of this contract, Mr. Lindsey will also receive 10 per cent of the total labour costs paid out on the jobs as well as 5 per cant of all payments made to sub-contractors for the jobs.

8 Austin C. Marshall acting on behalf of himself as well as Monarch Bicycle Company (Antigua) Ltd., agrees to make prompt payment to bills including labour to be submitted weekly by Mr. Lindsey, as well as for any extras agreed upon.

9 The evidence reveals that the contract was drafted by the plaintiff and it is my view that the terms were very much in his favour. The defendant signed it so nothing turns on that.

10 The plaintiff is claiming from the defendant the sum of $3.540. being the sum paid by the plaintiff to Equipment and Supplies Limited for tyres which the defendant had credited from that company and which sum the plaintiff was called upon to pay. The plaintiff having guaranteed payment of this sum which the defendant refused to pay.

11 The plaintiff also claims from the defendant the sum of $3,300. being the sum advanced to Carib World Travel on the defendants' behalf and at his request in order that three Trinidad workmen whom the defendant had contracted to work with him might be flown from Trinidad to Montserrat.

12 The plaintiff claims a further sum of $3,100, being the sum paid by the plaintiff for a policy of Workmen's Compensation Insurance Finally the plaintiff claims the sum of $736 being the cost of six inch blocks belonging to the plaintiff, the defendant having taken the said blocks from the plaintiff's property.

13 I first turn to consider the claim for $3,540. for the tyres. The plaintiff said in his evidence that on or about 19th October, 1969 the defendant approached him and told him that the tyres on his truck were so bad that they were almost inoperable. The plaintiff said that the defendant told him he had tried to buy tyres from Equipment and Supplies Limited and that he did not have the money and that they would not sell him the tyres on credit. The defendant told the plaintiff that Equipment and Supply was willing to sell the tyres to him, if he the plaintiff would guarantee payment.

14 The plaintiff said that as a result to guaranteed payment of the tyres. The form of “guarantee” is as follows:-

TO WHOM IT MAY CONCERN

15 Based on a contract that Emmanuel Lindsey has signed to repair my house, the tyres for his truck will be paid for by January I 1990.

16 Sgd: Austin Marshall”

17 Bruce Farara, the Managing Director of Equipment and Supplies gave evidence on behalf of the plaintiff. He said on 19th October, 1989. The defendant came to his place of business and asked him personally for credit, he refused. A few days afterwards he received a hand written note from the plaintiff. The defendant brought the note himself. According to this witness the plaintiff was guaranteeing the payment of the tyres. The tyres were sold to the defendant. Farara's understanding is thug the defendant would pay for the tyres and failing, he Farara would call on the plaintiff for payment. Farara said he did call upon the plaintiff to make payment because the defendant did not pay. Farara said he received payment from the plaintiff for the tyres.

18 Miss Henry submitted that the document cannot be regarded as a guarantee for the following reasons: It is not signed by the defendant, it is not dated. It does not say, as Farara admitted, that the defendant would pay for the tyres.

19 In support of her admission Learned Counsel referred to LAWS OF ENGLAND VOLUME 20 4TH EDITION PARAGRAPH 119 where the Learned Authors say:-

20 ‘The statute of Frauds (1677) provides that no action is to be brought by which to charge the defendant upon any special promise to answer for the debt, default or miscarriages of another person under the agreement upon which the action is brought, or some memorandum or note in writing signed by the party to be charged with it or some other person there-unto lawfully authorised by him.”

21 Mr. Kelsick argued that even if the Court found that the document could not satisfy the requirements of the Statute of Frauds and that the plaintiff could not recover under the guarantee. The plaintiff could still succeed because he is claiming for a reimbursement for money paid on his behalf for his own use and benefit. I agree.

22 I now turn to consider the plaintiff's claim $3,300 which he said he paid on behalf of the defendant to Carib World in order to bring three Trinidadians to work in Montserrat.

23 The defendant in his defence denies that the plaintiff advanced $3,300 on his behalf. But claims that the plaintiff brought the said workers to Montserrat and reimbursed himself out of the wages spent on their airfare.

24 In evidence the plaintiff denied bringing the workers to Montserrat. He also denied ever reimbursing himself from the men's wages. The evidence however does reveal that, the three Trinidadians worked on the plaintiff's house when they came to Montserrat. The plaintiff denied in evidence that the three men came on his instructions. He further said -

“I did not suggest to the defendant that I would pay for the tickets for the three men and the money would be deducted from their wages. The defendant suggested that arrangement. I agreed to that…I...