Supreme Court
Action No. 13 of 1981
20th April, 1983
Moe, CJ.

Mr. Dean Lindo S.C. for the Plaintiff
Mr. Glenn Godfrey for the Defendant

Damages - Ownership of Property- Whether there was a partnership - No evidence of partnership - Quantum of damages.

J U D G M E N T

The Plaintiff claims from the Defendant the return or value of certain carpentry tools and thirty cement blocks of which he says he is the owner and entitled to possession and which the Defendant detains from him and also damages their detention. The Defendant admits he took delivery of the articles concerned from the Plaintiff but denies that the Plaintiff is owner and entitled to possession of them. He says they were delivered to him for and on behalf of a partnership which the parties and one Ronaldo Perez agreed to establish and were the Plaintiff's contribution to the partnership. He also counterclaims that the Plaintiff has wrongfully seized certain chattels belonging to the said partnership and refuses to return them. He therefore seeks an account of the partnership assets. He further claims a reasonable sum for work he did on an apartment under an agreement with the Plaintiff.

The Plaintiff's evidence was that he and the Defendant were going to build a building and start a boat business together. The arrangement was that the Defendant was to build the building for him and after the building was completed, they were going to be partners in a boat building business. The Defendant started the building. He paid the Defendant money in connection with building the building. The building was not finished because the Defendant stopped working on it. He bought tools to have the building finished and put them in the Defendant's house. The tools ended up in another man's house. He took away some of the tools. The others the Defendant wouldn't give him back. He says he has never formed a partnership with the Defendant. He, however, admitted there was a joint account at a bank in their names into which he deposited money. He kept a record of his expenses in a book which he labelled Eiley Boat Manufacturing Company which was going to be the name of the partnership. People regarded them as partners. They printed business cards, one of which was put in evidence, reading Eiley Boat Manufacturing Company Ltd., owners Norman Albert Eiley, Alex Van Carmichael, Manager Ronaldo Perez. The Defendant regarded himself as a partner and he regarded himself as a partner for a while. When he opened the joint account with the Defendant he regarded himself as a partner.

The Defendant's version is that he and the Plaintiff discussed a partnership agreement of a boat building company. He was to work his way to pay his share which was to be an agreed share. The Plaintiff was to contribute materials for the workshop and tools. He recounts distribution of the business cards, that he came to Belize City from time to time to see a lawyer about getting a lease for the land on which the workshop was being erected, that there was difficulty in getting the lease and the Plaintiff eventually bought the land. The Plaintiff brought the tools from the States and promised him that if for any reason the partnership broke up, he would have first refusal to buy the tools. He does not agree that partnership was to come into being when the building of boats began. He agrees that the Eiley Boat Manufacturing Company was never formed legally because the conditions for formation were not satisfied. He was not satisfied, but he didn't break up the partnership.

I found that the Plaintiff and Defendant intended to form a company, which would bear the name Eiley Boat Manufacturing Company Ltd. That company would carry on the business of boat building. The erection of premises in which the business would be carried on was commenced. The Plaintiff bought the land on which the premises were being erected, provided the materials and tools for use in its construction and paid the Defendant for his labour at a cost lower than normal rate. The Defendant provided his labour and sought out the materials. I found that all the activity by the parties just outlined was in preparation for going into the boat building business. But I was unable to find they were carrying on a business.

The Partnership Ordinance, CAP 211 by section 3(1) provides:

"Partnership is the relation which subsists between persons carrying on a business in common with a view of profit." By section 2, business includes any trade, occupation or profession. In the instant case, the parties were not carrying on a business in common far less with a view to profit. The evidence shows that the Plaintiff and the Defendant had taken certain steps with a view to carrying on business as a boat building company. Regarding themselves as partners, or people regarding them as partners did not mean there was a partnership in Law. An approved statement of the law set out in Lindley on Partnership 12th Ed. (1962) p. 20 was adopted in Keith Spicer Ltd. v Mansell (1970) 1 W.L.R. 333 and is as follows:

"Persons who are working together to form a company, although they may intend to become members of the company after its formation, are not partners if this be the only relation between them; they are, it is true, engaged in a common object, and that object is ultimately to acquire profit; but their immediate object is the formation of a company, and even if the company is not to be incorporated they are only in the position of persons who intend to become partners after the company is formed."

I, accordingly, hold there was no partnership to which it can be said the tools and cement blocks belonged. To whom do they belong? Both parties gave evidence that the Plaintiff bought them and handed them to the Defendant for use in the construction of the premises involved. I find that the Plaintiff is the owner of them. He has demanded them and the Defendant has kept them from him. He is entitled to their return or value. According to the evidence, I find the value to be $1,575.00. The Defendant's counterclaim for an account of partnership assets fails. One clarification, no evidence was given about how the claim for 30 cement blocks arose and the judgment is given in relation to the claim for the tools. In any event, I assumed the cement blocks were used in the erection of the building.

According to the evidence the Defendant has kept the tools since the Plaintiff's demand in the month of February 1981, or just over a year. The Plaintiff is entitled to damages for detention for the period. My assessment is based on the Plaintiff's evidence of a rental charge of $3,000 per year. This was not seriously challenged, but questioned to the extent to show the charges are comparable with rental charges in the U.S.A. I make an allowance for this factor and I assessed damages for detention at $2,000.

I turn now to the claim for a reasonable sum for the work done. The Defendant said that by a separate agreement he was to be paid $1,000 for the construction of the apartment forming part of the premises concerned or have that amount credited to his share of the partnership. He spent one month working on the apartment. The apartment wasn't finished. The Plaintiff claims that he paid the Defendant $4,200 for the sole purpose of completing the premises concerned including the apartment. He also said that the agreement was to pay the Defendant $40.00 per day for the work on the apartment. He said he paid this in about May, 1980 but it was not used for that purpose because after payment no more work was done on the building. He asked the Defendant for an account of the spending of the money but he didn't account. He wouldn't say anything. Under cross-examination the Plaintiff at one point said he put the $4,200 cash in the Defendant's account and insisted he made the deposit. He later said the cash was given to the Defendant and the Defendant put it in his account. The Defendant in his evidence denied such a payment and produced a statement of an account with the Bank of Nova Scotia for May 1980 which showed no deposit of any kind during that month to that account.

On the state of the evidence, I rejected the Plaintiff's account as to payment of $4,200 to the Defendant and found that the Defendant was not paid for the work which he did on the apartment portion of the building. According to both parties there was an agreement that the Defendant be paid separately for that work. The Plaintiff admitted that he agreed to pay $40.00 whereas the Defendant said he was to be paid $1,000 for the work on the apartment. I accepted the Defendant's evidence that he spent one month on the work he did on the apartment or 20 working days and also that the apartment wasn't finished. I think it fair and reasonable to award the Defendant $800.00 for the work on the apartment.

In the result, the Plaintiff will have judgment for the return from the Defendant of the tools listed in the Statement of Claim or payment by the Defendant of their value in the sum of $1,575.00. The Defendant is also to pay the Plaintiff $2,000 damages for detention of the tools. The Plaintiff to pay the Defendant the sum of $800.00.

As to costs, I think the order should be that the Defendant pay the Plaintiff three-fourths of the Plaintiff's costs.

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