Supreme Court
Action No. 165 of 1977
13th September 1978
Malone, C.J.

Mr. Denys Barrow and Senator S. W. Musa, for the Plaintiffs
Mr. D.B. Courtenay, for the Defendants

Action for conversion and return of Caterpillar D 8H tractor and damages for its detention or alternatively damages for its conversion - Second Plaintiff buying tractor from second Defendant taking possession of tractor and not returning it to Second Plaintiff despite demand for return of same.

J U D G M E N T

Of the parties to this Action, the principals are the 1st Plaintiff and the 1st Defendant who are, respectively, the local managers of the 2nd Plaintiff and the 2nd Defendant, which are two companies each owning equipment used in land clearing operations. The Plaintiffs claim that the 2nd Defendant, having by its agent, the 1st Defendant, sold and delivered to the 1st Plaintiff as agent of the 2nd Plaintiff, a Caterpillar D 8H tractor, wrongfully took back the tractor and despite demand made for its return, has retained it. The Plaintiff's Action is thus one of conversion which seeks the return of the tractor and damages for its detention or, alternatively, damages for the conversion. There is also a claim for damages for trespass to the tractor. The Defendants, whilst admitting that the tractor did pass into the possession of the 1st Plaintiff, say that it did so by reason of an oral agreement of partnership, which was made on behalf of the 2nd Plaintiff and the 2nd Defendant, by the 1st Plaintiff and 1st Defendant respectively and not because of a sale. They aver that the agreement of partnership was later determined so that they were entitled to retake possession of the tractor as they allege that the tractor was, at all material times, the property of the 2nd Defendant. The Defendants therefore deny the alleged conversion. The Defendants further allege that the Plaintiffs have not accounted to them, as they should have done under the partnership agreement, for moneys coming into the Plaintiff's hands from the employment of the tractor and that the Plaintiffs occasioned loss to them by removing certain parts of the mechanism of the tractor so damaging the tractor. Consequently, by way of counterclaim, the Defendants seek an account from the Plaintiffs, the payment of expenses incurred by them in repairing the tractor and damages.

It is not open to question that there were discussions between the parties relating to the sale of the D 8H tractor. The first intimation that the 1st Plaintiff, as agent of the 2nd Plaintiff, might be interested in buying and the 1st Defendant, as agent of the 2nd Defendant, in selling the tractor took place in December, 1976, or early January, 1977. By that time the 1st Defendant was settled in Belize, having come here from Jamaica, and was living on the ranch of the 2nd Defendant in the Cayo District. A principal shareholder in the 2nd Defendant's company is a Mr. Edward Drew. At that time Mr. Drew was, to use the word of the 1st Defendant, "extricating" himself from Jamaica of which country he, like the 1st Defendant and 1st Plaintiff, is a national and was engaged in settling himself in San José, Costa Rica, where he now resides. The 1st Plaintiff, whose father came to Belize early in July, 1977, was also in the process of resettling himself in Belize. Much of the Plaintiff's equipment was in Miami, Florida. Like the 1st Defendant who had sold out the bulk of his equipment in Jamaica between 1970 and 1971, the 1st Plaintiff had also been engaged in land clearing operations in Jamaica. In fact, he had known the 1st Defendant there and had, in 1970, bought a D 6 tractor for $6,500.00 J., from the 1st Defendant. Because Mr. Drew was constantly on the move in the process of resettling himself, and so too was the 1st Plaintiff, as he did not settle in Belize until towards the end of July, 1977, when the first tentative discussions relating to the D 8H tractor had reached the stage at which more serious discussions were necessary, it was agreed that Mr. Drew, the 1st Plaintiff and the 1st Defendant should meet in Miami, Florida. To this point there is no dispute as to the facts nor is it in dispute that a meeting did take place between the three gentlemen at the "Everglades" hotel in Miami at which a Mr. Witty, who is an American citizen and an acquaintance of the 1st Plaintiff, was present. The exact date of that meeting is not known, but it would seem to have taken place either towards the end of January 1977 or in early February of that year. Subsequent to that meeting, an agreement of sale (Ex. C.A. 1), was prepared by Mr. Barry Smith, the solicitor of the 1st Plaintiff in Grand Cayman, from notes (Es. S.S. 9) supplied by the 1st Plaintiff, but it was never the intention of the parties at any time that any agreement verbally reached was only to have effect if expressed in a duly executed written agreement. There is no pleading to that effect and indeed the evidence of the parties makes it clear that there was no such intention.

Thus, the 1st Plaintiff said that he requested his solicitor to draw up an agreement because he thought it good business practice to have the agreement made at the "Everglades" hotel expressed in writing, but that the contract was not made specifically subject to the execution of a written agreement. Whilst Mr. Drew said in examination in chief:

"1st Defendant and I had no discussion about reducing any agreement we came to with the 1st Plaintiff into writing",
and in answer to the Court said:

"Basically the sale of the tractor was a cash deal. We never discussed a written agreement in Miami".

It is the contention of the Plaintiffs that the prime purpose of the "Everglades" hotel meeting was to agree upon a price and that, in fact, agreement on that was reached. The agreed price was, they say, $35,000.00 U.S., and was the price agreed to be paid for the D 8H tractor and an attachment called a rake blade which can be used with that tractor. Whilst not denying that to reach agreement on the price was the prime purpose of the "Everglades" hotel meeting, Mr. Drew and the 1st Defendant place the emphasis a little differently. They maintain that they had, between themselves, agreed in advance of the meeting at the "Everglades" hotel upon a price of $50,000.00 U.S., for the tractor alone so that the prime purpose of the meeting was to find out if the 1st Plaintiff would accept the price. The price, the 1st Plaintiff said, was arrived at by reference to a booklet (Exhibit S.S. 1) he had in Mr. Witty's presence purchased in Miami and which shows the prices obtained at recent auction sales in the U.S.A. for tractors and other earth-moving equipment. To ensure that the prices quoted related to the particular D 8H tractor he was interested in buying, the 1st Plaintiff said that he enquired of the 1st Defendant what was the serial number of the D 8H so that he could refer to the prices quoted relating to tractors similar to the D 8H and which carried a similar serial number, as those would be tractors manufactured at about the same time as the D 8H. That portion of the 1st Plaintiff's evidence is supported by Mr.Witty. To a limited extent, it is also supported by the 1st Defendant and Mr. Drew. The 1st Defendant agreed that the 1st Plaintiff did refer to the booklet in question and that he, the 1st Defendant, did supply him with the D8's serial number, although he had no recollection of the 1st Plaintiff using the serial number to arrive at a price, but supposed now, having seen the booklet, that the 1st Plaintiff must have done so. Mr. Drew agreed that the 1st Plaintiff did produce the booklet but that he, Mr. Drew, could recall taking the booklet and throwing it on a bed as he told the 1st Plaintiff that the Defendants wanted $50,000.00 U.S., for the tractor. When the booklet is studied, it will be found that the average of the prices quoted for D 8H tractors with comparable serial numbers to the D 8H in question is in fact $34,000.00 U.S. Apart from the discussion as to price, Mr. Witty could not recall that anything else relating to the sale of the tractor was discussed but, having no interest himself in the tractor and having attended the meeting for a purpose unrelated to the tractor, he did not participate in the negotiations concerning the tractor, nor was he particularly interested in those negotiations. He was, however, quite positive that the 1st Plaintiff did not make a first offer of $25,000.00 U.S. as the 1st Defendant and Mr. Drew allege, but that he offered $34,000.00 - $34,500.00 U.S. and settled at $35,000.00 U.S., and that there was no discussion over a price of $50,000.00 U.S. The 1st Plaintiff however recalls other matters being discussed. He enquired, he said, if he could have time in which to pay the full purchase price and he said that agreement was reached on a down payment of $15,000.00 U.S., to be followed within six months by the balance of $20,000.00 U.S. According to the 1st Defendant, there was no discussion of the kind in his presence at the meeting at the "Everglades" hotel; but he says that he left the meeting before it ended to accompany Mrs. Aquart on a shopping expedition. Mr. Drew, however, agrees that there was mention of the $15,000.00 U.S. That, he says, came up after the lst Defendant had left the meeting and that it was he, Drew, who raised it. He says that he put it to the 1st Plaintiff that to show his good faith and that his intentions were serious he should, if he wished to continue the negotiations, make a deposit of $15,000.00 U.S. In substance, that is the evidence of the discussions which took place in Mr. Drew's bedroom at the "Everglades" hotel. There may also have been some further discussion relating to repairs to the tractor and its insurance.

The scene then shifts to Grand Cayman. The 1st Plaintiff says that he flew there a day or two after the meeting at the "Everglades" hotel with the 1st Defendant and Mrs. Aquart for the prime purpose of making the $15,000.00 U.S. down payment and that Mr. Drew did not accompany them. It is, however, denied by the 1st Defendant that the 1st Plaintiff flew with him and Mrs. Aquart. He says, and in this he is supported by Mr. Drew, that he, Drew and Mrs. Aquart flew together and that the 1st Plaintiff came the next day, by which time Mr. Drew had left. Whether or not Mr. Drew went on this occasion to Grand Cayman is not of importance, nor is it of importance whether the 1st Plaintiff flew there on his own or not. What is of importance is that he met the 1st Defendant in Grand Cayman and that a cheque of the 11th February, 1977, (Ex. S.S. 2), drawn on the Bank of Nova Scotia at Georgetown, Grand Cayman, for $15,000.00 U.S. which was deposited to the credit of the 2nd Defendant on the 18th of that month. That this payment was made by or on behalf of the 2nd Plaintiff cannot be open to question, as on the 1st March, Mr. T.A. Wylie, a Director of the 2nd Defendant resident in Grand Cayman where the 2nd Defendant is registered, wrote to the 1st Plaintiff acknowledging the receipt of the $15,000.00 U.S. That letter (Ex. S.S. 4), the 1st Defendant said in examination-in-chief, was written upon instructions given by him to Mr. Wylie after he had received a copy of the agreement which, as I earlier mentioned, the 1st Plaintiff had instructed his Solicitor, Mr. Barry Smith, to prepare. But he says that he did not see the letter until these proceedings were begun in September, 1977. In his letter of the 1st March, Mr. Wylie also refers to that agreement and to a letter (Ex. S.S. 3), of the 20th February, 1977, from the 1st Defendant to Mr. Passailaigue, the Assistant Manager of the 2nd Defendant in Belize, authorising him to release the D 8H tractor to the 1st Plaintiff.

Mr. Wy1ie's letter of the 1st March, 1977, is of so much importance in this case that I shall recite its full text which is as follows:

"Dear Steve,
Colin will hand-deliver this letter to you in Be1ize sometime in the next week. He reminded me that I have not acknowledged the receipt of the sum of U.S. $15,000.00 paid by you to us as a down payment on the purchase of our Caterpillar D 8H tractor located on the ranch in Belize. I hereby acknowledge the receipt of these funds and wish to apologize for the delay in delivering the signed purchase agreement to you. Colin has been advised by his partner, Mr. Edward Drew, that this contract should not be signed until it is approved by our lawyer and signed by Edward. The problem is that Edward is constantly on the move and cannot be located at the moment. As soon as he arrives in the Cayman Islands, I will have him execute the contract.

In the mean time, we have delivered to you a letter addressed to Donny Passailaigue in Belize which authorises him to release the tractor to you and it is my understanding that you have taken delivery of it and are presently using it. This is satisfactory to us and we shall attempt to get the paper work completed as soon as possible.

Yours truly,

Mayan Ranchos Ltd.
T. A. Wylie
Director"

In describing the $15,000.00 U.S. paid by the 1st Plaintiff "as a down payment on the purchase of our Caterpillar D 8H tractor …", Mr. Wylie flatly contradicts Mr. Drew's evidence that the agreement he made with the 1st Plaintiff at the "Everglades" hotel in the absence of the 1st Defendant was that a deposit of $15,000.00 U.S. was to be made by the 1st Plaintiff to show that his intention to purchase the tractor was serious. In fact, in describing the $15,000.00 U.S. payment "as a down payment on the purchase of our Caterpillar D 8H tractor", Mr. Wylie fully confirms the 1st Plaintiff's evidence that it was agreed that a $15,000.00 U.S. down payment was to be made by him at once towards the purchase price of $35,000.00 U.S. There is no suggestion that Mr. Wy1ie, who was not present at the "Everglades" hotel, got his instructions from the 1st Plaintiff. The evidence is that he was instructed by the 1st Defendant. One would then expect Mr. Drew and the 1st Defendant to be at odds on this point, but the fact is that they are not. For, according to the 1st Defendant, when after the "Everglades" hotel meeting the 1st Plaintiff did not show up in Grand Cayman on the day agreed upon, Mr. Drew and himself discussed what was to happen with regard to the further negotiations as Mr. Drew could not spare the time to wait for the arrival of the 1st Plaintiff. Then, said the 1st Defendant, "It was agreed between Drew and I that 1st Plaintiff was to put a deposit of $15,000.00 U.S. to show his good faith. Apparently, in my absence from the "Everglades" room Drew and the 1st Plaintiff had discussed this."

So that before any instructions could have been passed to Mr. Wylie, the evidence of the Defence is that the 1st Defendant, although not present when Mr. Drew made his proposal to the 1st Plaintiff with regard to the $15,000.00 U.S., had been told by Mr. Drew what that proposal was. It is then very surprising to find that Mr. Wylie should have failed to fol1ow the instructions given to him by the 1st Defendant. That it is an instance of Mr. Wylie failing to carry out the 1st Defendant's instructions is the only conclusion to be drawn from the evidence if one accepts the evidence for the Defence which, on this matter, comes solely from the 1st Defendant. For although the 1st Defendant had, in his examination-in-chief, stated, in reference to the letter of the 1st March, that Mr. Wylie had carried out his instructions, he underwent a change of opinion in cross-examination when he said that Mr. Wylie was wrong in describing the $15,000.00 U.S. as a down payment. His instructions to Mr. Wylie were, he said, that Mr. Wylie should merely acknowledge the receipt of the $15,000.00 U.S. It comes then to this, that the defence is inviting me to resolve this important conflict in its evidence by finding that Mr. Wylie, who it did not call to explain his letter, made a mistake in describing the payment of the $15,000.00 U.S. as he did. That would not be an easy finding to make in any eventuality. It becomes the more difficult when regard is had to other features of the case apart from the fact that no evidence was given by Mr. Wylie. Thus, the first feature that might be mentioned is that, as Mr. Wylie is said to be an accountant and a Director of the 2nd Defendant, it would seem unlikely that, unless he had been so instructed, he would be so inexperienced as to describe the payment as he did when, according to the 1st Defendant, he knew nothing of the details of the transaction. Then again, I ask myself, is it to be believed that the 1st Defendant did not see this letter until September 1977? To my mind, the fact that it was he who instructed Mr. Wylie and the fact that the letter was, as he said, delivered by him to the 1st Plaintiff, suggest very strongly that he must at least have perused it. In support also of a finding that the letter records the instructions of the 1st Defendant are these further considerations. The letter, in its last paragraph, refers to the note of the 20th February 1977, and expresses the belief that the tractor had been delivered to the 1st Plaintiff. It is now known, however, that when Mr. Wylie wrote his letter, the tractor had not by then been delivered to the 1st Plaintiff. Had there been evidence that the 1st Defendant knew at the time when Mr. Wylie wrote his letter that the 1st Plaintiff had not made use of the note of the 20th February, as in fact he had not, there might have been cause to believe the 1st Defendant when he said that Mr. Wylie, in expressing in the letter the belief that the Plaintiffs were then using the tractor, was making a presumption of his own. But there is no such evidence. The note of the 20th February 1977 was delivered at the 1st Plaintiff's request to him by the 1st Defendant in Miami. The expectation then was that the 1st Plaintiff would get to Belize ahead of the 1st Defendant. In fact he did not. Consequently when the 1st Defendant instructed Mr. Wylie, he would know that the 1st Plaintiff had received the note of the 20th February, but he was not to know that the 1st Plaintiff had made no use of it. It therefore seems to me that the passage in Mr. Wylie's letter, "It is my understanding that you have taken delivery of it and are presently using it," might well be expressing the presumption of the 1st Defendant which had been passed on by him to Mr. Wylie. Indeed, as according to the 1st Defendant, Mr. Wylie knows nothing of the day to day affairs of the 2nd Defendant, it would seem to me the more likely that he was simply recording the presumption of the 1st Defendant. For why, as a presumably capable man, should he make such a presumption of his own volition? I can think of no good reason. Nevertheless, before making a finding on this matter, there is yet another feature to be considered. The evidence of the 1st Defendant is that he received the draft agreement prior to instructing Mr. Wylie to acknowledge the receipt of the $15,000.00 U.S. It is his evidence also that on first seeing the draft agreement in the presence of Mr. Wylie at Mr. Wylie's office in Grand Cayman, he was struck by the fact that the figure stated in the draft agreement as the purchase price was $35,000.00 U.S. He then felt, he said, that in changing the price to that figure, the 1st Plaintiff whom he considers to be a man who - to use his own words - "tries to beat you down constantly over the months," was trying one on. Having noted the price the 1st Defendant must also have seen, as it follows immediately after the price, that the agreement provided for the price to be paid by an initial installment of $15,000.00 U.S. to be followed later by the balance of $20,000.00 U.S. If the truth is that his reaction to the price stated in the draft agreement was as he described it, then to instruct Mr. Wylie to acknowledge the receipt of the $15,000.00 U.S. does not seem conduct consistent with that reaction. More consistent with that reaction, it would seem to me, would have been an instruction which directed Mr. Wylie to return the $15,000.00 U.S. and/or to say in no uncertain terms that the $15,000.00 U.S. was not a down payment, that $35,000.00 U.S. was not the agreed price and that the draft agreement was not acceptable. So, too, if he has spoken the truth about his reaction to the price stated in the draft agreement, then the passage in the letter which implies that the cause for the delay in delivering the signed purchase agreement was Mr. Drew's insistence that the agreement should be approved by the 2nd Defendant's lawyer and signed by Mr. Drew also seems inconsistent with that reaction. But of course, not everyone reacts in the same way and both Mr. Drew and the 1st Defendant have given evidence that they spoke or both spoke and wrote to the 1st Plaintiff expressing their disapproval of the draft agreement. I shall therefore now examine that evidence to see if it can be accepted as true, and I shall begin with Mr. Drew.

In his examination-in-chief, Mr. Drew said that on the 26th March 1977, he was in a barber's shop at Miami Airport when he was paged by the loud hailer and as a consequence met the 1st Plaintiff. The latter, who explained that he was on his way to Belize requested, he said, a note from him authorizing the 1st Defendant to deliver to him the D 8H tractor. Knowing of the note of the 20th February 1977, Mr. Drew considered this an unusual request and did not grant it. Later that afternoon or the next day, he said that he was telephoned at his hotel by the 1st Plaintiff. He then took the opportunity, having previously learned from the 1st Defendant that the price stated in the draft agreement was $35,000.00 U.S., to tell the 1st Plaintiff that he was concerned that the figure should have been stated as the price and concerned that in the draft agreement, certain conditions had been expressed which had not been discussed. To that, he said, the 1st Plaintiff replied that $35,000.00 U.S. was not his final offer and that there was room for discussion. Mr. Drew flew, he said, to Grand Cayman two or three days later where he saw the draft agreement and explained to Mr. Wylie that it was not in accord with the discussions that had taken place. Then on the 4th of April, 1977, he says, he wrote from San José to the 1st Plaintiff as follows:

"Dear Steve,
I have recently seen the draft agreement of sale for the Cat D8; the price of $35,000 is completely unacceptable and not what we discussed in Miami.

I suggest that you continue further discussions re purchase of the Cat D 8H with Colin at the ranch. I remember clearly that the price Colin and myself were discussing was U.S. $50,000 plus $5,000 for the bush rake.

Yours faithfully,
E.G. Drew."

The 1st Plaintiff denied that there was a meeting between himself and Mr. Drew at Miami Airport or that he had telephoned Mr. Drew and declared that he had not received the letter of the 4th April (Ex. E.D. 1).

The 1st Plaintiff's passport carries the stamp of the immigration officer of Belize which bears an arrival date of the 22nd March, 1977. The second "2" of the "22" is written over either a wholly or partially formed figure. As all that is visible of the wholly or partially formed underlying figure is a stroke from about the mid point of the tail of the "2" upwards to the main curve of the "2", it would seem that the underlying figure was either a "1" or a "7". Mr. Drew thought it to be a "7". In my view, it is not a "7" and for two reasons, neither of which is dependent upon me being a handwriting expert for I make no claim to be one. The first is that every 7 made by the immigration officer within the stamp in which the date "22.3.77" appears is obviously crossed in its midsection in the German manner. In all there are four 7s as in addition to the date "22.3.77", there is also the date "21.4.77" which is the date by which the 1st Plaintiff would have had to leave Belize had he not been granted an extension of time. In fact, as another stamp in his passport shows, he left Belize on the 6th April, 1977. Had the figure underlying the second 2 been a 7, I venture to think that apart from seeing the stroke I have mentioned, a stroke denoting the crossing of the "7" would also have been visible. But that is not to be seen and the "2" has clearly not been so formed as to obliterate such a stroke had it been there. It therefore suggests that the "2" overlies a "1". Again, if the underlying figure had been a 7, it is most unlikely that the time granted to the 1st Plaintiff to remain in the country would have ended on the 21.4.77 as that would have allowed him an odd period of 24 clear days. I venture to think that I can take judicial notice from my own experience as a traveller that such odd periods are not normally granted. On the other hand, had it been a 1, the date of the 21.4.77 is readily understandable as that would allow him a clear calendar month in the country. I therefore do not accept the insinuation that the 1st Plaintiff has altered the entry date on his passport from the 27.3.77 to the 22.3.77. I think that what happened was that the immigration officer on the 22nd of the month began to write the 21st, then remembering it was the 22nd, changed the "1" of the 21st to the "2" of 22nd. Had Mr. Drew been uncertain as to the date of his meeting with the 1st Plaintiff, my finding that the 1st Plaintiff was in Belize on the 26th March, might not have been of significance. But Mr. Drew was not so uncertain as to detract from the significance of that finding. In the course of his cross-examination, he did waiver a little from the date of the 26th, suggesting that he might have miscalculated by a few days. But eventually, he stated he was pretty sure that it was the 26th and the reason he gave for being of that opinion was that his passport had entry stamp for Miami dated the 26th and an exit stamp from Miami and an entry stamp into Grand Cayman two days later. Having regard to Mr. Drew's earlier evidence that the meeting took place on an occasion when he had arrived in Miami and was going two days later to Grand Cayman and that it was towards the end of March, I am driven to conclude by the evidence of the 1st Plaintiff's passport, that there was no meeting and that Mr. Drew has either fabricated it or is quite mistaken. As regards the letter of the 4th April, 1977, that is linked by Mr. Drew to the events he related of the 26th March. As I accept the evidence of the 1st Plaintiff that those events did not take place, I also accept his evidence that he did not receive the letter of the 4th April. And because in the circumstances I cannot exclude the probability that the letter is itself a fabrication, I am unable to give to it any weight. Indeed, when regard is had to Mr. Drew's version of the discussions at the "Everglades" hotel, with particular reference to his explanation for the payment of the $15,000.00 U.S., (which I shall in due course show to be absurd) it would seem to me that the greater probability is that the alleged meeting and the letter of the 4th April are fabrications of Mr. Drew.

The evidence of the 1st Defendant with regard to his speaking about the draft agreement to the 1st Plaintiff is quite brief. It is as follows:
"I spoke to the 1st Plaintiff about this agreement in Miami at a later date. I told him I was not in agreement with the terms and I was awaiting Mr. Drew to get back from Cayman Islands to find out if this is what, he, Drew, had discussed with 1st Plaintiff in my absence."

It is not clear what date the 1st Defendant had in mind and except that he said that when he instructed Mr. Wylie to write the letter of the 1st March, he had already seen the draft agreement, it is not known from him when it was that he did see that agreement. There is, however, evidence from Mr. Drew in cross-examination that he recalled the 1st Defendant saying before the 18th February that he had seen the draft agreement. There is also evidence from the 1st Plaintiff that he handed to the 1st Defendant a copy of the notes supplied by him to Mr. Smith when he delivered the cheque for $15,000.00 U.S. The 1st Defendant's movements after the meeting with the 1st Plaintiff in Grand Cayman following upon the discussions held at the "Everglades" hotel were described by him as follows: from Grand Cayman he returned to Miami where he delivered to the 1st Plaintiff the note dated the 20th February, 1977. From Miami he went to Canada, then to Jamaica and then to Grand Cayman before returning to Miami. He must have reached Grand Cayman on or before the 1st March as that is the date of the letter he instructed Mr. Wylie to write. He must also have got to Miami from Grand Cayman before the 22nd March as I have found that the 1st Plaintiff came to Belize on that day and it is agreed by the parties that when the 1st Plaintiff came to Belize, the 1st Defendant was already in Belize. Therefore it follows that if there was a meeting in Miami at which he expressed his dissatisfaction with the draft agreement to the 1st Plaintiff, that meeting must have been on or about the 20th February or some time after the 1st March and before the 22nd of that month. If Mr. Drew is right that the 1st Defendant had seen the draft agreement before the 18th February, or the 1st Plaintiff is right that a copy of his notes for Mr. Smith had been delivered to the 1st Defendant before that day, or both are right, then I could not believe the 1st Defendant that on or about the 20th February he told the 1st Plaintiff that he was not in agreement with the terms of the draft agreement. For, if before the 18th February the 1st Defendant thought that the 1st Plaintiff was trying one on and knew that the price stated in the draft agreement or notes had not been agreed, it is inconceivable, to my mind, that he would have authorized delivery of the tractor to the 1st Plaintiff on the 20th February. To do so would be to play right into the hands of the 1st Plaintiff, as the impression would be created that he, the 1st Defendant, was acknowledging that there had been a sale. Nor could it be suggested that the delivery was a consequence of a partnership agreement as it is the evidence of the 1st Defendant that discussions to form a partnership did not begin until the end of March or early in April. As the 1st Defendant did deliver the note of the 20th February to the 1st Plaintiff, the conclusion must be either that he had not seen the draft agreement or the notes before the 20th, or that if he had, he is not to be believed that his reaction was as he described. In the latter event, as I have said, I could not believe his evidence that he then told the 1st Plaintiff that he was not in agreement with the terms of the draft agreement. Having regard to the evidence of Mr. Drew and the 1st Plaintiff, the conclusion last mentioned would seem the most probable.

For the time being, however, I will suppose that the 1st Defendant had not, by the 20th February, seen the draft agreement or the notes, and so will turn to consider whether the second of the two possible meetings in Miami took place. To do so, it is necessary to refer to some further facts. It is admitted by the 1st Plaintiff that he did not, in fact, make use of the note of the 20th February because he said that by the time he arrived in Belize, the 1st Defendant was already there. According to the 1st Plaintiff, the tractor was delivered personally to him by the 1st Defendant and he, the 1st Plaintiff, made arrangements for it to be transported from the 2nd Defendant's ranch to Belmopan where there was work for it on a project known as the CASA project. The tractor got there on the 30th March. On the 14th April, however, the tractor was taken to Mount Pleasant and the 1st Plaintiff says that was done at his request. In support of their case, the Plaintiffs called as a witness Mr. Carillo, the tractor's driver, at all material times. He said that about Easter time when the tractor was at Belmopan, the 1st Defendant came to him one morning with the 1st Plaintiff and informed him that from then on he should look upon the 1st Plaintiff as his boss. Save that he agrees that the tractor was taken to Belmopan and later moved to Mount Pleasant, the 1st Defendant disputes this portion of the Plaintiff's evidence. According to him, the tractor was never delivered to the 1st Plaintiff and it was he, not the 1st Plaintiff, who arranged for its removal to Belmopan. Further, he said, it was taken to Mount Pleasant at the request of Mr. Halcrow, the manager of Mount Pleasant, and because of discussions which had taken place between the 2nd Plaintiff and 2nd Defendant. Those discussions, he said, had begun towards the end of March or early in April and in April had ended in an agreement of partnership. According to the 1st Plaintiff, such discussions did take place, but they took place between the months of June and August and did not end in an agreement or partnership.

If, in fact, there was a delivery of the tractor to the 1st Plaintiff in April or in March, which was not because a partnership had been brought into being or was about to be brought into being, I could not believe the 1st Defendant that he expressed to the 1st Plaintiff dissatisfaction with the draft agreement, as it would be inconsistent of him to be authorizing the delivery of the tractor after seeing the draft agreement of which he disapproved. So then, the question to be decided is this: Was there a partnership?

The basis of the partnership agreement was, the 1st Defendant said, that each partner agreed that its equity in the partnership would be the equipment it put into the partnership and that the hourly rental rates charged for any given piece of equipment would determine its value. The 1st Defendant explained that method of calculation and the consequences that flowed from it in the following words:

"If, for example, the 1st Plaintiff had machines that totalled $100.00 per hour, we would put in matching machines. If we could not do that, the profits would be divided pro rata. The rental figure was not to apply just to each job but if, for example, on any given job the 1st Plaintiff's machines worked and mine did not, I would get my share and vice versa."

When asked if apart from equipment the partners were to put anything else into the partnership, the 1st Defendant replied, "Yes. Supervision and Mayan Ranchos were to make available their facilities for repairs. The cost of these operations were to be split in the same manner as the profits."

According to the 1st Defendant, the equipment which was proposed the 2nd Defendant should put into the partnership was:

"the D 8H tractor;
a D 6 tractor;
a 955 truck type loader; and
two dump trucks."

The equipment which the 2nd Plaintiff was to put in as its share was not, it seems, finally settled. It would seem, according to the 1st Defendant, that it was initially agreed that the 2nd Plaintiff should put in -

"a 922 loader;
a D 5 tractor; and
a T D 20 tractor",

that later it put in a compressor and that there was discussion concerning a D7 tractor of the 2nd Plaintiff. The 1st Defendant was certain that the $15,000.00 U.S. payment made on behalf of the 2nd Plaintiff by the cheque dated the 11th February, 1977, was not discussed. "If", he said, "the 1st Plaintiff and ourselves had agreed on a sale of the D8 tractor, he would have been credited with the $15,000.00. But if not he would have got it as a credit in relation to work done by us on his equipment."

This agreement was not reduced into writing. The reason being, according to the 1st Defendant, that by the time it was made, "we had been dealing with the 1st Plaintiff for months. He was regarded by us a close friend and associate. There was no need to have everything in writing."

I find the explanation questionable in view of the fact that by then, if the 1st Defendant is believed, the 1st Plaintiff had tried to pull what might be described as a fast one. What is more questionable is that Mr. Drew who, as I understand it, is the largest shareholder of the 2nd Defendant, had nothing to say about the nature of the partnership whilst the concept of it held by Mr. Passailaigue, who claimed to be its accountant, differed from that of the 1st Defendant. According to Mr. Passailaigue, the arrangement was one whereby expenses were shared on the basis of the rental value of the equipment put in by each party, but each party, after deducting expenses, retained the earnings of its equipment. In other words, there was a sharing only of the expenses but not of the profits. That would not be a partnership. Produced in evidence as Ex. D.P. 3, was a book initially described by Mr. Passailague as the account book of the partnership. Later he said that the book did not give a full record of the accounts of the partnership, but merely showed cash received and cash spent so that it might be described as a cash book. But whatever its proper description, it is the only book of the partnership. The first feature that strikes me about this book is that it includes the rentals earned by a tractor called the "Komatsu". What is significant about that is that the "Komatsu" was not partnership property. It was the property of the 1st Plaintiff's father. It was looked after and its operation was supervised by the Defendants, but its rentals accrued to Mr. John Steadman. Its inclusion was explained by Mr. Passailaigue in the following words:

"Ex. D.P. 3 was started before the Komatsu started to work. The Komatsu went on to the same site and all the fuel was there so the Komatsu rental was thrown in. We separated it later on."

That, of course, is no explanation. What in fact the book records, as Mr. Passailaigue agreed, is the earnings of all equipment, whether in partnership or not, which was under the management of the Defendants. As a means, therefore, of showing partnership accounts or cash transactions relating to partnership property, it is useless. Its evidential value in this case is that it confirms what the 1st Plaintiff has said. Namely, that as he was moving back and forth between Miami and Belize whilst the 1st Defendant was settled in Belize and because, as he thought, the 1st Defendant was assisting him to resettle in Belize, the management of his equipment and that of his father was entrusted to the 1st Defendant until such time as he could take it over. That aspect is borne out by the book in relation to the D 8H tractor. There is only one entry in the book with respect to the D 8H tractor. It is an entry of the 22nd April and records the sum of $6,018.75 as rentals earned. As according to Mr. Passailaigue, the practice was to make up bills after the 15th and after the end of each month, and as the D 8H tractor worked on the CASA project from the 31st March to the 14th April, this sum represents its earnings to the 14th April. If there was a partnership, it is to be expected that the book would record those earnings. A like record would also be expected if there was no partnership, and the position was that the Defendants were managing the Plaintiff's equipment. Why is it that the entry of the 22nd April is the only entry in the book in relation to the D 8H and then, when the D 8H was moved to the Mount Pleasant project in April, the book has no entry in relation to it although the last entry in the book is for the 30th August and the D 8H worked at Mount Pleasant until the 26th September? Mr. Passailaigue's answer to that question was that no entries were made as the 2nd Defendant was not collecting the rent paid by Mount Pleasant. That of course provides no answer if there was a partnership. The significance of the fact that there is no entry after the 22nd is that the fact substantiates the Plaintiff's case that because there was no partnership and because the D 8H tractor was the property of the 2nd Plaintiff and rentals were being paid to the 1st Plaintiff, these rentals did not have to pass through the book which is a book of the 2nd Defendant. On the other hand, when the D 8H tractor was working on the CASA site and the rentals were being paid to the 1st Defendant, they had to be recorded in the book as the Defendants had to account to the 2nd Plaintiff for the rentals earned by its tractor. Precisely the reverse situation arose in the case of the D 6 tractor which, it is not disputed, is the property of the 2nd Defendant. In the first fortnight of April when the D 8H tractor was working at Belmopan on the CASA project, the D 6 was working at Mount Pleasant. It was because the D 6 could not handle the work at Mount Pleasant that it was moved to the CASA project and the D 8H brought to Mount Pleasant. What became of the rentals it had earned on the Mount Pleasant project? If there was no partnership and these rentals had been paid to the 1st Plaintiff, then he should have passed them on to the Defendants. That is precisely what the 1st Plaintiff says he did do and produced in support a cheque (Ex. S.S. 6) for $2,000.00 made in his favour and endorsed by him to the 2nd Defendant. Mr. Passailaigue acknowledged that the cheque in question was for work done by the D 6, but was then obliged, in order to maintain his position that a partnership existed, to say that the partners did not share in profits.

More could be written to show why it was that there was no partnership. Thus if as Mr. Passailaigue says, the partnership book was opened on the 6th April because that was the date on which the partnership began, why does it not reflect the payment of the $15,000.00 U.S.? For if, as the 1st Defendant said, the 1st Plaintiff was to get the $15,000.00 U.S. as a credit in the event of there being no sale, then surely, when the partnership was formed, that credit would be reflected in the partnership book. The fact that it is not reflected is another strong reason for saying that there was no partnership. I do not, however, think it necessary to go further into this matter as I am fully satisfied that there was no partnership. There was certainly a close association because the 1st Defendant was helping the 1st Plaintiff and his father to resettle in Belize. In that capacity he assisted in clearing through customs their personal belongings and the equipment which the 1st Plaintiff sent down from Miami and both stored and managed that equipment. Because of that close association, confidences were exchanged and it accounts for the friendly and self-revealing nature of much of the correspondence in this case that has been produced to prove a partnership (Exs. S.S. 8A - H). It accounts too, I think, for Ex. S.S. 5, a scrap of paper on which the 1st Defendant recorded and hourly rates of pay of a mechanic and welder employed by him so that the 1st Plaintiff would know to what charges equipment of his maintained or repaired by the Defendants in his absence was subject. Because also of that close association, I accept the testimony of the 1st Plaintiff that beginning in June, suggestions leading to discussions were made with regard to the formation of a partnership. But as I have said, a partnership was not formed. Having then come to that conclusion, I am satisfied that the 1st Defendant cannot have told the 1st Plaintiff in March that the draft agreement did not represent what had been agreed. To my mind, the evidence of the 1st Defendant that he did express his disapproval of the draft agreement to the 1st Plaintiff is like Mr. Drew's evidence to that effect of fabrication. Nothing of the kind was said because the draft agreement, in substance, reflected their agreement. Those fabrications merely give added weight to other reasons I have earlier stated that lead me to conclude that the letter Mr. Wylie was instructed to write by the 1st Defendant expresses the truth of the matter. Indeed even without that letter, I think it would be reasonable to hold that the explanation given by Mr. Drew and the 1st Defendant for the payment of the $15,000.00 U.S. is false. For the payment is described as an "earnest" to show that the 1st Plaintiff intended seriously to pursue the negotiations. As to its effect, the 1st Defendant said in cross-examination that there would be an obligation on the Defendants not to sell the tractor in the meanwhile to anyone but the Plaintiffs. So that, as the 1st Defendant admitted, the Plaintiffs were given an option to buy. But an option which had not to be exercised within any given time limit and in the event of the Plaintiffs deciding not to buy, the $15,000.00 U.S. deposit was to be refunded by the Defendant. To my mind, the explanation of the payment is not only not true, but as I have earlier said absurd, because it is not credible that Mr. Drew, who is an experienced businessman, would put forward as a business proposal, a proposition which was restrictive to his company's business interests and of advantage only to the Plaintiffs.

As of the 20th February, 1977, when the 1st Defendant wrote the note authorizing Mr. Passailaigue to deliver the tractor to the 1st Plaintiff, the facts as I find them were the following:

1. The 1st Plaintiff on behalf of the 2nd Plaintiff had agreed to buy the D 8H tractor and its rake blade from the 2nd Defendant and the latter had agreed to sell.

2. The purchase price of $35,000.00 U.S. was agreed and it was further agreed that it should be paid off by a down payment of $15,000.00 U.S. with the balance of $20,000.00 U.S. to be paid in six months.

3. The down payment of $15,000.00 U.S. was to be paid on the 11th February, 1977, and credited to the account of the 2nd Defendants on the 18th February, 1977.

4. On the 20th February, 1977, the 1st Defendant, acting on behalf of the 2nd Defendant, authorized the delivery of the tractor to the 1st Plaintiff.

The tractor, I also find, was delivered with its rake blade to the 1st Plaintiff towards the end of March and was in operation for his purposes until the 26th September 1977. As it is admitted by the Defence that the Defendants on the 26th September, 1977 removed the tractor from the possession of the Plaintiffs and that a demand for its return was made by the mother of the 1st Plaintiff, those admissions, coupled to the findings made, dispose of this Action. For they establish that an unconditional contract for the sale of specific goods, in a deliverable state, was entered into by the parties and that, after delivery of the goods, the Defendants wrongfully converted the goods. Of course, the fact that the $20,000.00 U.S. representing the balance of the purchase remains unpaid does not affect the foregoing findings. It is merely a fact of which account must be taken in determining damages. The 2nd Plaintiff is then entitled to the return of the tractor and rake blade which now are in the Defendants' possession, and it only remains to determine what, if any, damages should be awarded.

In Clerk and Lindsell on "Torts", 12th Ed. (1990) appears the following passage at p. 993:

"Where the chattel detained is one which is normally let out on hire by the Plaintiff, and where it is used by the Defendant, the Plaintiff is entitled to a reasonable sum for the hire of the chattel during the period of its detention; and this sum will not be affected by the actual benefit obtained from the chattel by the Defendant during that period, nor by the fact that during some part of the time of wrongful detention the Plaintiff would not have been able to find a hirer."

As I said, the D 8H tractor removed from Mount Pleasant on the 26th September, 1977, then, Mr. Passailaigue said it was parked for some time but has since October, 1977, been gainfully employed by the Defendants. It is agreed by the parties that it is hired at the rate of $75.00 per hour and according to the 1st Plaintiff it could not have worked on the Mount Pleasant Project in October, 1977, as work on that project was stopped for that month by Mr. Halcrow because of rain. The Writ in this Action was lodged on the 17th December. Upon those facts it would seem to me, having regard to the passage cited from Clerk and Lindsell, that the Plaintiffs are entitled to damages in an amount that represents a reasonable sum for the hire of the D 8H tractor in November and until the 17th December. The period in question must end, I think, with the date on which the Writ was lodged and cannot include the period after that day to the present, even though the tractor has been employed in that time, as I consider myself bound by the judgment of the Court of Appeal in Roque Ramirez v Antonio Ahuja (1975) Civil Appeal No. 2 decided on the 2nd November, 1976. In that case the Court ruled - and I quote from the judgment of Hogan J. A., at page 15 that:

"Even with the commendable aim of avoiding multiplicity of actions, I do not think that a court would be justified in giving judgment in this case for an amount not claimed in the writ and which was not due when the writ was issued."

The 1st Plaintiff estimated that on average the gross earnings per week of the D 8H tractor were of the order of $390.00. To arrive at a net earning per week, the 1st Plaintiff considered that from the gross earnings should be deducted $156.00 being the wages of the operator and $516.80 for fuel and lubricant. In as much as the operator is paid at the rate of $3.00 per hour, it will be seen from the above figures that the Plaintiff calculated the number of hours worked per week as 52. His evidence is in large measure supported by Mr. Carillo, as the latter said that the working day was one of 10 hours. Mr. Carillo did, however, add that a working day of 10 hours was dependent on there being break downs and that stoppages because of rain were most likely in the months of October and November. The Defendants, on the other hand, suggest that the gross earnings per week of the D 8H tractor is about $1,700.00 as they suggest that the hours worked per week are of the order of 22. Apart from those estimates of the number of hours worked on average per week, there is also the following evidence. The "Komatsu" tractor, according to the 1st Plaintiff, is hired at $55.00 per hour and, said Mr. Passailaigue, between the 13th May and the 16th September when it worked on the CASA project, its gross earnings were $45,760.00. On the basis of these figures, the average number of hours worked per week would have been 46 hours, if the period of the 13th May to the 16th September is calculated as a period of 18 weeks, or 49 hours if that period is calculated as a period of 17 weeks. Between the 31st March and the 14th April, at a hiring rate of $75.00 per hour, the D 8H earned $6,018.75 when working on the CASA project. In the same period, the D 6 tractor, which the 1st Plaintiff said was hired at $40 per hour, earned $2,086.60 when working at Mount Pleasant. On the basis of those figures the number of hours per week worked on average by the D 8H would then have been 40 and the number worked by the D 6 would have been 26. It is known, however, that the D 6 was not a suitable tractor for the work at Mount Pleasant. As that may account for its average number of hours worked in a week falling so far below the number of hours worked by the "Komatsu" and the D 8H, I do not think it safe to use the hours worked by the D 6 as a guide. On the basis of the figures relating to the "Komatsu" and the D 8H and having regard to the 1st Plaintiff's and Mr. Carrillo's estimates of the number of hours worked, I think it fair to say that 45 hours represents, on average, the number of hours worked in a week. I shall adopt that figure and, as it is agreed by the parties, I shall accept that the hiring rate of the D 8H tractor is $75.00 per hour. I shall accept the 1st Plaintiff's evidence that, on average, $516.80 was the sum spent per week on fuel and lubricant, and as the period involved is a relatively short one of six weeks and there has been no evidence of stoppages in that time, I shall make no allowance for break downs or for stoppages on account of rain. On the basis of these figures I find that for the six full weeks beginning with the 1st November and ending with the 17th December, the gross earnings of the D 8H tractor were $20,250.00. The operator's earnings would have been $810.00 over the same period and the amount spent on fuel and lubricant $3,100.80. Accordingly, the net profit over the six weeks would be $16,339.20. The 2nd Plaintiff, however, owes the 2nd Defendant $40,000.00 BZ., on the purchase price of the tractor, being in Belize currency the equivalent of $20,000.00 U.S. That amount will then be reduced by the damages to $23,660.80.

In the result, judgment is entered for the Plaintiffs on the claim and the counterclaim is dismissed. It is ordered that the Defendants return the tractor forthwith to the Plaintiffs and it is further ordered that the Plaintiffs pay to the Defendants $23,660.80. The costs of the claim and counterclaim to be taxed and paid by the Defendants.

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