Eustace Octave v Lane Pettigrew et al

• • SAINT LUCIA IN THE HIGH COURT OF JUSTICE (CIVIL) A.D. 1999 Suit No. 158 of 1990 Between: Eustace Octave Plaintiff v Lane Pettigrew Louis Hamal Defendants Appearance Mr. Evans Calderon for the Plaintiff Mrs Brenda Flemming Flossaic for Defendant .•.•......•........•.................•.....•...•...•.•••...••....•. Judgment delivered 16th September 1999 ............................•..••..•.•.........•.....•....•.......••••••. JUDGMENT d' Auver~ne J. This is an action shrouded in antiquity (from date of filing to judgment). By a writ of Summons endorsed with a Statement of Claim the Plaintiff claimed against the Defendants jointly and severally the following: Special Damages - $61,884.91 Interest thereon form 5th February 1987 to date of payment General Damages The Costs hereof The said writ was filed on the 7w day of June 1990 and on the day of June 1990 an appearance was entered on behalf of the first Defendant. The second Defendant was never served. On 1 t h day of July 1990 a defence was entered on behalf of the said Defendant and on the day of March 1992 an amended defence was entered pursuant to an order of the Court. Facts The Plaintiff gave evidence on his own behalf and called no witnesses whereas Robert Fagan and Lane Pettigrew gave evidence on behalf of the defence. The Plaintiff s case is that he was employed by to construct on the compound of the Hotel known as Club Mediterranean hereinafter referred to as the Hotel the following: (a) Tenis Club House Project (b) Vendor's Market Project (c) Scenery Store (d) Pool pump room (e) Modification to interior room (f) Timber Framing to lobby area He said that there was a verbal agreement between the first Defendant and himself that the labour cost for the above mentioned was $106,100.00 and that he would supply all the material for the construction of (a) to (f) enumerated on page 2 and he would be re- Imbursed.by the said Defendant. He said that he received $59,169.00 towards the labour cost leaving a balance of $46,931.00 and $32,450.78 in respect of the purchase and transportation of materials but that the Defendants have refused to pay the balance of $14,953 .91 which is still owing with regards to the latter despite his repeated request for the payments The Plaintiff tendered seventeen (17) documents illustrating the was contracted to do for the Hotel and two other exhibits which showed that he had submitted quotations for (a) to (f) mentioned earlier. Under Cross examination he admitted receiving $128)97.69 company but denied receiving cheque dated 1 December 1986 in the sum of $49,424.07. He said "I received the amount of$128,797.69 in many different payments in material and labour but I did not receive cheque $49,424.07 I never went to Barclays Bank in December to cash any cheque" I pause here to note that under cross examination the Plaintiff said I had a .r Hamal. Yet the latter is named as a Defendant in the case. The defence's case is that the fIrst Defendant was not an employee of Hotel Holiday Village (St Lucia) Ltd but was engaged by the said Hotel as a Consulting Architect; that as a consulting architect he acted as for the said Hotel and that the Plaintiff was one of approximately ten contractors who were employed by the Hotel to execute work on Its property. That as an agent, the first Defendant submitted architectural drawings to the Plaintiff who intum would submit written quotations to the Hotel. The first Defendant Lane Pettigrew told the Court he \;v'as a of the American Institute of Architects and he gave the Court an explanation of his Contract which had been tendered as an exhibit by Robert Fagan better known as Bob Fagan who worked for the Hotel as general manager during the period under review. During the explanation of the contract much emphasis was placed witness on Clause l.5.3, 1.41, l.5.7, 1.58 which will be set out later in this judgment. He categorically denied that the Plaintiff tendered any bills to him for payment nor did he ever pay the Plaintiff "one single penny for any of any kind". The witness said that while performing his duty of inspecting and valuing which he had not done and that he was over valuing, charging too much for some of the work that he did" He gave a few examples of work done and valued by the Plaintiff he had to reduce substantially. He denied even assisting in accepting bids for the Plaintiff but admitted that he had in the past checked materials delivered on site as being those listed on a receipt tendered by Plaintiff. He said that after this was done the Plaintiff would "then take the receipt to the owner with whom he was contracted and it was the owner's responsibility to reimburse Mr Octave against the amount shown on the receipt." Robert Fagan's evidence was in conformity with that of the first Defendant. He told the Court that the Plaintiff had a verbal agreement with the Hotel. He submitted eight cheques which showed that the Hotel had paid the Plaintiff a total of $128,817.65 and a ledger to show that the amount of $49,424.07 was debited from the Hotel's account on 16th of December 1986, whereas the cheque made out to the $49,424.07 to the Plaintiff was dated 1 December 1986. I pause here to note some of the clauses mentioned above in the terms and conditions of the first Defendant's contract between the Company and himself. 1.41 The Architect, following the Owner's approval of the Construction Documents and of the latest Statement of Probable Construction Cost, assist in awarding the preparing contracts for construction. 1.5.3 The Architect shall be a representative of the Owner during construction Phase, and shall advise and consult the Owner. Instructions to the Contractor shall be forwarded through the Architect. The Architect shall have authority to act on behalf of the Owner the extent provided in the Contract Documents unless otherwise modified by written instrument in accordance with Subparagraph 1.5.16. 1.5.4 The Architect shall visit the site at intervals appropriate to the stage of construction or as otherwise agreed by the Architect in become generally familiar with the progress and quality to determine in general if the Work is proceeding in accordance Contract Documents. However, the Architect shall not be required to make exhaustive or continuous on-site inspections to check or quantity of the Work. On the basis of on-sIte observations as an architect, the Architect shall keep the Owner informed of the progress and quality of the Work, and shall endeavor to guard the Owner against defects and deficiencies in the work of the Contractor. 1.5.5 The Architect shall not have control or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, for the acts or omissions of the Contractor, subcontractors or any other persons performing any of the work, or for the failure of any of out 1.5.6 The Architect shall at all times have access to the work wherever it is in preparation or progress. 1.5.7 The Architect shall determine the amounts owing to the Contractor based on observations at the site and on evaluations of the Contractor's Applications for Payment, and shall issue Certificates for Payment m such amounts, as provided in the Contract Documents. 1.5.8 The issuance of a Certificate for Payment shall constitute a representation by the Architect to the Owner, based on the s observations at the site as provided in Subparagraph 1.5.4 and on the comprising the Contractor's Application for Payment, that the Work has progressed to the point indicated; that, to the best of the Architect's knowledge, information and belief, the quality of the work is in accordance with the Contract Documents ect to an Work for conformance with the Contract Documents upon Substantial Completion, to the results of any subsequent tests required by or performed under the Contract Documents, to minor deviations from the Contract Documents correctable prior to completion, and to any specific quali fications stated in the Certificate for Payment); and that the Contractor is entitled to payment in the amount certified. However, issuance of a Certificate for Payment shall not be a representation that the Architect has made any examination to ascertain how and for what purpose the Contractor has used the; moneys paid on account of the Ar~uments s Learned Counsel for First Defendant contented case should be dismissed with costs to the First Defendant following: Firstly that Plaintiff pleaded and viva voce Defendant was indebted to him in the sum of $61,884.91 but produced any voucher to substantiate claim nor __ '~T" ri~"" of the materials, the cost of which he was That he admitted receiving the sum of $128,81 actual when added) "1 agree that 1 received in all the amount $1 but denied receiving the sum of $49,424.07 denominations of were cheque clearly shows back of the cheque. That the Plaintiff was fully aware that he contracted Mediterrian and not the First Defendant hence the reason brought an action against Club Mediterrian which was dismissed on ground of abandonment and then sought to bring the same action the First Defendant. That the First Defendant was an agent and was therefore not liable to a can agency. Article 1615 of the Civil Code ofSt Lucia. Learned Counsel argued that the Plaintiff was well aware that the First Defendant was an architect and that he had no personal contract the (Plaintiff) for when ever the First Defendant checked, delivered goods against any receipt given to him by the Plaintiff, after the checking the said receipt was returned to the latter who would produce it elsewhere for payment. She quoted. Halsbury's Laws of England 4th Edition Volume 4 Para 1343. Which provides. As these is no contractual relationship between the architect or and the Contractor the on(v liability that can be incurred towards in negligence, and when the architect or engineer is acting as agent for the employer he can incur no personal liability provided that he honestly and within the scope of his employment. She further contended that the denial by the Plaintiff of the the back of the cheque dated 17th December 1986 when that signature appears to be identical with his signature on all the other cheques can be proved by the provision set out in Halsbury's laws of England 4th Edition Vol 17. Paragraphs 89 and 124.

89.Handwriting in general. The proof of handwriting may .. require either lay or expert evidence, or both, depending upon the point at issue. A person's handwriting may be proved by the opinion of witnesses who are acquainted with it 2 The knowledge necessary for this purpose may at party write, or (2) received communications purporting to come from him 4 in answer to those addressed to him by the witness, or (3) observed documents purporting to be in the party's handwriting in the ordinary course of business5 .•• '" ............ '" Proof of handwriting. Except vli'hen judicial notice is taken official signatures], or where an apparent or purported signature is deemed by statute to be the actual signature], the handwriting3 or signaturi of unattested documents may be proved in the following (1) by calling the writer,' or (2) by a witness who saw the docurnent written or signed; or (3) by a witness who has a general knowledge of the writing, acquired in any of the ways mentioned earlier) " or (4) by comparison of the disputed document with other documents proved to judge's satisfaction to be genuini,· or (5) by the admissions of the party against whom the document is tendered7; or (6) in particular Dva document purporting to be a solemn declaration in a prescribed forrn made before a prescribed person . She said that Bob Fagan as manager, of the Company would have received the drawn cheques of the Plaintiff and therefore he can be said to be "acquainted with" the Plaintiffs handwriting, She concluded stating that a post dated cheque is not invalid Halsbury's Laws of England Volume 3 (1) Para 163 2nd paragraph on page 143 Learned Counsel for the Plaintiff contended that the issues to be settled in his opinion were: (2) was the work done and paid for (3) who received the benefit of the Contract and o (4) who was liable for payment for the work done. He argued that the Plaintiff contracted with the First Defendant ana no one else who at the time was an undisclosed principal. He said was so, since the First Defendant not only accepted the Plaintiff s bids but showed him the paymaster's office where he presented his claim for payment. He further argued that the Plaintiff was not privy to and had no knowledge of the contract agreement between the Hotel and the First Defendant. He urged the Court to consider a St Lucian setting and .... elL'."",.,. the question whether an ordinary contractor like the Plaintiff would be aware of the inside knowledge of the working of a Hotel, such as Mediterranean Holiday Village (St Lucia) Ltd. Again he urged the Court to note that the First Defendant on oath said that the "owner of the project was Club-med." Therefore the First Defendant was the agent who employed the Plaintiff for his undisclosed principal. Learned Counsel boldly stated that from the evidence led by the Plaintiff there was no doubt that the work done by the Plaintiff was completed according to plans and bids but that he had not been fully paid. He drew reference to First Defendant's evidence .. "I held back money for ous $1200.00. " Learned Counsel further urged the Court to accept the Plaintiff was a truthful witness who admitted to receiving the amounts on the other cheques exhibited but denied receiving the $49,424.07 from cheque .... u .... ,,_u 1 i h December 1986. Learned Counsel argued that the work was done and the owner benefited therefore the First Defendant who acted for the undisclosed principal should be made to pay the Plaintiff for his labour and costs of materials and that the First Defendant would be at liberty to claim "indemnity" from his principal. He quoted the case of Thacker V Hardy (1878) 4 Q.B.D. 685 at 687 from Chitty on Contract 23rd Edition Vol 2 Page 118 'The Principal is under a du(v to indenznify agent liabilities incurred in the execution of his authority" Pople V Evans 19682 ALL E R Page 744 as authority that the under consideration was not barred as Res Judicata on account of previous suit filed by the Plaintiff against Club Mediterranean which was dismissed on the ground of abandonment. CONCLUSION: The Plaintiff has brought an action against the First Defendant for breach contracted certain projects on Club Mediterranean Hotel (St. Lucia) Ltd. The question therefore to be decided is whether the First Defendant acted as pnncipal or as agent in his dealings with the Plaintiff. It is the Plaintiffs contention that the First Defendant contracted with the Plaintiff . disclosing his principal and therefore is answerable to the Plaintiff. The First Defendant on the other hand states that he acted as agent as can be seen by Article 1.53 of his contract (noted earlier) The Plaintiff admitted that he knew that the First Defendant "was an architect but did not know whether he owned Club Med." A perusal of Paragraph 3 of the Statement of Claim of Case 69 an exhibit in this case (that case was deemed abandoned) reads. Paragraph 3 the Plaintiff contracted with the said company through their Architect and Manager one Lane Pettigrew and Louis Hamal use of Vieux Fort for the construction of certain benefit of the Hotel. In my judgment the logical conclusion is that the Plaintiff was aware that the First Defendant was not the owner of Club Mediterraean, that the Hotel did not and does not belong to him but that he was an agent of the Hotel. Art 1615 of the Civil Code provides An agent acting in the name of the principal and within the bounds of third Paragraph 137 of Halsbury's Laws of England 4th Edition volume 1 (2) provides Ri2hts and liabilities of Principal As a general rule, any contract made by an agent the authority of his principal may be enforced by or against the principal vvhere IUS name or existence was disclosed to the other contracting party at the time when the contract was made. Paragraph 170 of Halsbury's aforesaid provides where an making a contract discloses both the existence and the name principal on whose behalf he purports to rnake the agent not, as a general rule. liable on the contract to the other contracting party, whether he had in/act authority to make it or not but a personal may be imposed upon him by the express terms of the contract, ordinary course of business, or by usage, and will of warranty of authority in cases where he had no authority. Para2raph 1343 Liability of architect to contractor As there is no contractual relationship between the architect or engineer and the contractor the only liability that can be incurred towards him is in negligence, and when the architect or engineer is acting as agent for the employer he can incur no personal liability provided that he acts honestly and wIthin the scope of his employment. There is no evidence before this court that the First Defendant had exceeded his agency or that he was negligent. Therefore 1 have no alternative but to conclude that the First Defendant acted as agent within the bounds of his agency and theretore IS liable to the Plaintiff. The claim is that the First Defendant is indebted to the Plaintiff in the sum of$61,884.91; $46,93l.00 balance on labour from the agreed sum of$106,100.00 and $14,953.91 balance from the purchase cost and transportation of materials. "He who alleges must prove" The Plaintiff exhibited two bills one which showed an amount $27,300.00 and another for $27,000.00 which amount to $54,300.00. This Plaintiff told the Court "I do not remember receiving cheques from Holiday village totaling $128,797.65 and latter said" Correct I Court in Re-examination that I received $128,797.69. 1 received the amount of$128,797.69 in many different payments in material and labour. I agree that I received in all the amount $128,797.69 but I did not receive cheque for $49,424.07. The above is confusing but it is clear that Plaintiff has failed to substantiate his claim for the sums stated for labour and for the cost and transportation of materials. The Plaintiff in his evidence made copias references to his indebtedness a cheques will show that three of them were endorsed to National Commercial Bank and one clearly states that the amount was endorsed to the account of Pierre Enterprises at the above mentioned bank. I agree with Learned Counsel for the First Defendant that Mr Bob Fagan through his acquaintance with Plaintiff and the Plaintiff s handwriting he can prove the Plaintiffs handwriting and I believe him when he said that he recognised the Plaintiff s signatures on all the cheques. Finally with regard to the cheque dated 17th December 1986 and drawn on the 16th December 1986 the authorities show that post dated cheques are not invalid. Based on the above my order is as follows. ( 1) This case is dismissed. (2) Costs to the First Defendant to be agreed or otherwise taxed . .. ~'~ Suzied'Au~~ \~ High Court Judge

Suit No. 158 of 1990 D’Auvergne, J. delivered 16/09/99