Mercer v Dyer

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: Lewis, C. J.
• Judgment Date: 15 November 1968
• Neutral Citation: MS 1968 CA 2
• Docket Number: Civil Appeal No. 2 of 1968
• Date: 15 November 1968

Mercer

and

Dyer

Lewis, C.J. Gordon, J.A. Lewis, J.A.

Civil Appeal No. 2 of 1968

West Indies Associated States Supreme Court. Court of Appeal

Debt - Liability

Held: The appellant was entitled to judgment having regard to the fact the totality of the evidence that the respondent was indebted to him. Appeal allowed. Judgment entered for plaintiff/appellant in the sum of $10,197.18.

Facts: This was an appeal against the judgment of the trial judge in the High Court dismissing the appellant's claim for $10,197.18, the balance of an account for goods sold and delivered to the defendant/respondent. The respondent's husband had carried on business with the appellant, both of them being merchants.

Lewis, C. J.

1 This is an appeal against the judgment of Mr. Justice Berridge sitting in the High Court in this territory on the 4 ^th July, 1968 dismissing the appellant's claim for $10,197.18, the balance of an account for goods sold and delivered to the defendant - respondent between the 23 ^rd October, 1960 and the 6 ^th August, 1962

2 The respondent's husband had carried on business with the appellant. Both of them were merchants in Montserrat, the appellant carrying on business on a much larger scale than his customer. The respondent's husband died on the 22 ^nd October, 1960 but even before his death the respondent, according to her evidence, had commenced to carry on a small business separate from her husbands. After his death she continued the two businesses, but in May, 1961 she paid off the debt which her husband had left in favour of the appellant, and she continued to carry on the business for herself on the same premises, and I presume with the balance of the stock which had existed in the husband's business, and also the business which she had started in 1959. She sirs that she supervised one business herself, and the other business was supervised on her behalf by Joseph Dyett. At some stage a dispute arose between herself and Joseph Dyett and in order to arrive at a settlement of this dispute she sent through her lawyer to the appellant to find out how the account stood. The appellant, no doubt with the very greatest confidence in her, allowed her to have the ledger sheets relating to her account. Those ledger sheets were handed to her lawyer. They were eventually returned. There is no evidence on the record at all to suggest that at that stage she challenged any of the items in the account as being incorrect. The appellant in his evidence said that up to that time there was no dispute between them about the account. She used to come to buy goods, or Joseph Dyett used to come to buy goods. Sometimes she bought cash, sometimes she took goods on credit. When she took goods on credit the amount was made up on an invoice in duplicate. The original was handed to her or to her agent and the duplicate was kept. From those duplicates, his evidence is, the ledger account way made up. On looking at the ledger account one sees that the account is made up in great detail, in fact in greater detail than is the custom in some businesses, because not merely the total of the invoice is entered, as some businesses do, just enter the number of the invoice and the total, but each item of goods on that slip is put down in the ledger account. Now this is extremely important in this case because quite clearly when those ledger sheets were handed to her lawyer she was able to look through the whole of that account and see in detail what it was that was entered in the account as having been purchased on credit by her. Well, it seems, and one can only suspect that this arises out of the dispute between herself and Dyett, that she decided she wouldn't pay this account. I say one can only suspect because there is no direct evidence about it, but there must be some motive, which led her to repudiate and terminate an account, which had been going on for such a long time.

3 Eventually an action was brought against her in two capacities, against her...