Sylvia Osborne, Bertram Osborne and Cedric Osborne as Administrators of the Estate of M. S. Osborne, deceased Defendants/Appellants v James Teisheira Plaintiff/Respondent [ECSC]

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: GORDON, C.J. (Ag.),CECIL LEWIS, J.A.,ST. BERNARD. J.A. (Ag.),Acting Chief Justice
• Judgment Date: 07 May 1970
• Judgment citation (vLex): [1970] ECSC J0507-1
• Docket Number: Civil Appeal No. 1 of 1970
• Date: 07 May 1970

Between:

Sylvia Osborne, Bertram Osborne and Cedric Osborne as Administrators of the Estate of M. S. Osborne, deceased

Defendants/Appellants

and

James Teisheira

Plaintiff/Respondent

[1970] ECSC J0507-1

Before:

The Honourable the Acting Chief Justice

The Honourable Mr. Justice P. Cecil Lewis

The Honourable Mr. Justice St. Bernard (Ag.)

Civil Appeal No. 1 of 1970

IN THE COURT OF APPEAL

K. Allen for Defendants/Appellants

J.C. Kelsick for Plaintiff/Respondent

GORDON, C.J. (Ag.)

1 This appeal has arisen out of an action brought by the plaintiff/respondent against the defendants/appellants as administrators of the estate of M.S. Osborne, since deceased, in the Supreme Court for $2,725.00 with interest thereon at 5% being the value of a motor car which was damaged on the 8th January, 1966, by a car owned by the deceased and driven by his servant or agent Allen Shinn. Consequent on the accident the plaintiff/respondent brought an action against the defendant/appellant which was heard on the 3rd December, 1969, before Louisy J. The late M.S. Osborne having previously admitted liability, the issue at the trial turned solely on the question of quantum of damages. On the 31st January, 1970, judgment was entered for the plaintiff/respondent for $1,920.00 and costs. The appellant now appeals against this judgment.

2 On the 25th January, 1966, the late M.S. Osborne paid to the piaintiff/respondent the sum of $710.00 which according to a receipt signed by the latter and tendered in evidence at the trial, was in settlement of the claim for damage to his car M 455. The plaintiff/respondent, while admitting having received this sum of $710.00, stated that the sum in questionwas not by way of a full settlement, but only in respect of that portion of his damages which related to the loss of use of his car. This amount he stated was arrived at on the basis of 71 days—the estimated period within which he could have obtained a new car—at $10.00 per day, viz:—$710.00. His claim for $2,725.00 he based on the value of the car at the time of the accident.

3 In his judgment which the learned trial judge delivered on the 31st January, 1970, he stated thus:

"I have come to the conclusion on the evidence that there was a misunderstanding as to what was being agreed; whilst the plaintiff was talking about loss of use for his car, M.S. Osborne was talking about settling the matter in respect of damages to the plaintiff's car. It appears to me that the plaintiff and M.S. Osborne were notad idem, consequently there was no agreement between them for loss of use, nor for the payment of $710 and the plaintiff keeping the wrecked car."

4 Counsel for the defendants/appellants filed four grounds of appeal but before this Court he argued the single ground that the trial judge was wrong in law in coming to the conclusion that the parties were notad idem since the agreement was set out in the unambiguous document which was admitted by the plaintiff.

5 He argued in support of this ground of appeal that although the document was tendered in evidence at the trial by the plaintiff/respondent, it did not support his contention that the amount there mentioned was paid solely in respect of loss of use of his car, but that it indicated in clear and unambiguous language that the amount was in settlement of the damages which resulted from the collision. The document which was signed by the respondent expressed the intentions of the parties to it, and as such the learned trial judge erred when he drew the inference that the parties to the agreement were notad idem and rejected the agreement.

6 Counsel for the respondent in supporting the trial judge's inference that the receipt, worded as it was, did not accurately represent the decision arrived at by the parties at their meeting, urged that all the surrounding circumstances strongly supported the inference drawn by the trial judge. Indeed the evidence of Bertram Osborne, one of the appellants, who was present with his father M.S. Osborne, since deceased, when the arrangement was concluded and the receipt drawn up,supported the conclusion when ne stated "$710.00 was assessed on the basis of loss of use."

7 In paragraph 7 of his statement of claim the plaintiff/respondent averred as follows:—

"On or about the 25th day of January, 1966, the said M.S. Osbourne in the presence of and with the assistance of the third named defendant admitted liability of the late M.S. Osborne for the injury and loss caused to the plaintiff by the negligence of the first named defendant and paid to the plaintiff the sum of $710.00 East Caribbean Currency in settlement of his claim for loss of the use of his motor car."

8 to which the appellants replied in paragraph 3 of their defence thus:—

"The defendants deny paragraph 7 of the plaintiff's Statement of Claim and instead the second third and fourth defendants say that on the said 25th day of January, 1966, the plaintiffs negotiated and settled with the third named defendant for the said sum of $710 East Caribbean currency and accepted the said sum on the understanding that this said sum was payment in full for damage done to the plaintiff's car by the car owned by M.S. Osborne, deceased, and further say that no further or other consideration was mentioned or contemplated for the payment of the said sum."

9 From these pleadings it was manifest that the main issue between the parties would revolve around the receipt and what its significance was. When in the course of his evidence the respondent produced the receipt, albeit by consent, it did not support his contention or what he had pleaded, for the receipt read thus:

"Plymouth, Montserrat

25th January, 1966.

Received from M.S. Osborne the sum of Seven Hundred and ten Dollars ($710.00) in settlement of claim for damage to Car M 455 caused in accident with Car M 294 on Richmond Road on 8th January, 1966.

Sgd. Jas. P. E. Teisheira"

10 By way of explanation as to how he came to sign the document, the respondent stated, inter alia:

"I read the receipt but I had just come out of the sun" (a statement which I am unable to understand)—"Receipt satisfied me". "When I signed receipt I did not understand that I was receiving $710.00 for damage to car including loss of use."

11 It seems passing strange that a man such as the respondent was at the time, a foreman of the Public WorksDepartment, who, as he stated, went to the appellant with one Fenton for the sole purpose of negotiating the quantum of damages for the loss of use of his car, should have signed the document, worded as it was in fact worded, if it misrepresented the agreement which had been concluded.

12 In the absence of any pleading alleging mistake, fraud or any such kindred allegation, the proper approach of a Court to the construction of a document is to collect the intention of the parties from the instrument as a whole, but where by the use of general words such intention is clearly and unequivocally expressed every Court is bound by it.

13 In this case the trial judge without making any finding of fact as to the credibility of the witnesses, proceeded to draw inferences from the evidence which was before him, but in so doing, as counsel for the appellants with justification submitted, he did not give the necessary consideration to the effect of the receipt.

14 This Court is in an equally good position as the trial judge to draw inferences from the primary circumstances which have been disclosed by the evidence.

15 Here, despite the respondent's contention that he went to the meeting solely to discuss the question of damages relating to the loss of use of his vehicle, he left the meeting after having collected a cheque for $710.00 and after having signed a receipt which made no...