Supreme Court
Action No. 181 of 1980
9th November, 1982
Alcantara, J.

Mr. Wilfred P. Elrington for the Plaintiff
Elmo Henderson in Person
Mr. Denys Barrow for Christino Dominguez Jr.

Agency - Defendants acting as agents of Plaintiff in purchase of
a motor vehicle - Defendants misappropriating a portion of the
purchase money - Defendants jointly liable for the
misappropriation.

J U D G M E N T

I have been impressed by the evidence of Mr. Herman Sanchez which puts this case in its proper perspective and simplifies the issue.

The Management Committee of the Corozal Division of the Belize Cane Farmers Association at a meeting decided to purchase a vehicle from the United States. As all the members of the Committee together with an official, the Administrator /Accountant, were going to the States on an educational tour no one was specifically appointed to make the purchase. It was left to the Chairman, Mr. Christino (Gregorio) Dominguez Jr., the 2nd defendant, to do the necessary. This he did; he extended a voucher for $17,148.75 for the acquisition of a Bank draft for US$8,500.00 for the purchase of the vehicle. The draft was at all times in the possession of the First defendant Mr. Elmo Henderson, the Administrator/Accountant. He took it to the States and cashed it there. I find as a fact that he was at all material times in actual possession of the monies belonging to the Association, the plaintiffs.

I also find as a fact that the second defendant had control and custody of the said money jointly with the first defendant.

Anyhow a vehicle was purchased in New Orleans for U.S. $4,337.04. I find as a fact that the vehicle was paid for by the first defendant out of money belonging to the plaintiffs. I also find as a fact that the negotiation for the purchase of the vehicle was conducted jointly by the first and second defendants. In fact the vehicle was registered in the name of the second defendant for the purpose of driving it down to Belize. The first defendant continued to have actual possession of the balance of the $8,500.00 and carried on defraying expenses with respect to the vehicle. This included a camper, accessories, fuel and 'mordidas'. I find as a fact that the second defendant still had joint custody and control of the balance.

The vehicle duly arrived in Belize. Import duty was paid for by second defendant and it was registered in the name of the Belize Cane Farmers Association. It was handed over to the plaintiffs together with receipts in respect of the purchase and other expenses.

About two months later a discrepancy was noticed showing that a balance of the original sum of $17,148.75 was not accounted for. Mr. Pedro M. Percy Jr., the Executive Secretary of the Management Committee of the plaintiffs was commissioned to carry out an investigation. He carried out a thorough investigation and found that notwithstanding that there were no receipts in respect of certain minor items, the sum of $3,858.48 was still not accounted for.

At another meeting of the Corozal Division at which both defendants were present, the Committee taxed them with this credit and asked for an explanation.

The answer given by the second defendant as related by Mr. Sanchez, which I accept, was that it was Henderson who was in charge and that he did not know anything about the money. The answer given by the first defendant as related by Mr. Sanchez, which I also accept was "I (Sanchez) asked him what happened with the shortage of money. I do not know anything about that. Asked for explanation. Said he had nothing to say. All he said was that the vehicle was bought and that the receipts were there in Dominguez' name, and that he did not spend any money."

The Committee did not find those explanations acceptable and consequently this action. I do not find the explanation acceptable either.

The first defendant has not given evidence. The second defendant has gone into the witness box. He is not a witness in whom I feel confident in placing any reliance and whenever his evidence conflicts with the evidence of Mr. Sanchez I accept that of Mr. Sanchez.

I find as a fact that both defendants had the control and custody of monies belonging to the plaintiffs. It was money stamped with a trust for the purchase of a vehicle. They were duty bound either to return the balance or give a reasonable and acceptable explanation of how it was spent. This they have failed to do. There is no doubt that the plaintiffs are entitled to have the $3,858.48 back. If there is a dispute as to the liability of either of them or the degree of liability it is up to the defendants to settle it out amongst themselves. Insofar as the plaintiffs are concerned they are entitled to have judgment for the full amount against both defendants with costs. This in effect means that they can proceed to recover the amount against one or the other or both defendants.

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