Supreme Court
Action No. 353 of 1997
4th September, 2000
Meerabux, J.

Miss Lisa Shoman for the Plaintiff
Mr. Dean Barrow, S. C. for the Defendant

Debt for goods advanced on credit - Evidence establishing Defendant indebted to Plaintiff - Court finding for Plaintiff on basis of evidence.

J U D G M E N T

This case reveals how not to mix business with friendship because the moment to truth will arise to test the friendship.

The pleadings are not exemplary averments but I should not visit the sins of the attorneys on their clients.

The plaintiff's claim is for the sum of $98,746.50 being the sum owed for goods sold and delivered by the plaintiff to the defendant, or in the alternative: against the defendant as drawer of two cheques made out for $52,462.50 and $46,282.00 respectively, drawn upon the Belize Bank Limited and made payable to the plaintiff which were dishonoured and still owed to the plaintiff.

The defendant in her defence denies owing the plaintiff $98,746.50 for goods sold and delivered and also denies drawing two cheques in the sum of $52,462.50 and $46,282.00 which were dishonoured.

PLAINTIFF'S EVIDENCE

The Plaintiff's evidence may be summarized as follows:

In about June 1992, he operated two business stores in Belize under the name of Cherish selling dry goods, clothing, electronics, as well as a wholesaler. He lived in Kings Park together with one Kalil Mamud and his common law wife the defendant. He described his relationship with Kalil Mamud as "like brothers". In 1993 Mamud helped him in running his business and in addition carried out some wholesale business on his own from one of the plaintiff's stores.

In December 1993, he took over Sam's Family business in San Ignacio, Cayo and Mamud moved to San Ignacio with the defendant and ran the business for him assisted by the defendant.

The defendant in the second half of 1995, opened Bismilla Store in San Ignacio with stock from his Sam's Family Store which she paid for. In early 1996, he closed one of his stores in Belize City and the defendant with whom he had a good relationship agreed to take his stock of "dry goods, footwear, electronics, cosmetics, clothing, things,here and there, appliances, TVS, refrigerators, stoves, blenders, washing machines", valued at $52,462.00. This stock was delivered to her in San Ignacio, some by truck and some from his Sam's Family Store. The stock was listed on a legal pad which he gave to her. They had an agreement to pay for the stock at $1,000.00 per week with no interest, to be paid for in one year.

He left for India and on his tretun in April, 1996, he found that the defendant had made no payment to his account.

He prepared an invoice for the stock in the name of Bismilla Store for $52,462.00 dated 15th March, 1996 which the defendant signed in his presence. This is produced as Ex. G.S. 1.

The defendant failed to pay for the stock in spite of promises to do so. He closed the other Cherish business store in early 1997, and sent the stock to his Sam's Family Store in San Ignacio. With his consent the defendant took some of this stock valued at $29,000.00 from his Sam's Family Store. The defendant listed the stock she took on rough paper, he inserted the prices, produced as Ex. G.S. 2, and which is valued at $29,514.00.

In addition the defendant owed him $16,770.00 for payments to her store which was advanced by the defendant's boyfriend who managed his Sam's Family Store. He tried unsuccessfully for some time to get the defendant to pay the indebtedness to him and eventually the defendant signed and dated two cheques on 2nd May, 1997, for $52,452.50 and $46,285.00 respectively made out in his name for the sums owed but requested him not to cash the cheques until she had obtained a loan from the bank. Mamud learnt that he had these two cheques and left his management of Sam's Family Store, moved out of the house they had occupied together, went to live with the defendant and worked with the defendant in Bismilla Store. He took over the management of his Sam's Family Store and deposited the two cheques to his account on 9th July, 1997, but which cheques were later returned to him dishonoured.

The size of Bismilla Store was about 10' x 30' or 35', a good size to do business. The defendant previously worked as a cashier at Liberty Store and sought his advice in running her Bismilla Store.

He denied keeping the defendant's cheque book after she opened her account at Belize Bank, denied the defendant left pre-signed cheques with him but admitted he wrote some cheques but stated these cheques were for monies he spent for the defendant in Belize City and denied she asked him for the two missing cheques.

Xaida Copo worked in Sam's Family Store as a shop assistant to Mamud and also assisted the defendant in running Bismilla Store.

DEFENCE

Leonardo Chan, truck driver, testified that he knew the plaintiff and admitted that in 1996 he made a freight delivery of 119 boxes from Belize City to the plaintiff's store in San Ignacio. He did frequent deliveries for the plaintiff and at present for the defendant. The deliveries he made for the plaintiff were boxes of all sizes and he delivered the goods mostly the same day, not the next day. He delivers all kinds of items, small, large, TV, shoes, refrigerators and stoves.

Xaida Copo testified that in 1997 she worked at Sam's Family Store in San Ignacio. The plaintiff was the owner and Mr. Kalil Mamud managed the store. She knew the defendant.

When shown Ex. G.S. 4 (itemized list of goods) she stated that she prepared pages 1 and 5 for the inventory of the shop and that she did this every three months to see what the shop needed on the instructions of the plaintiff and sometimes by Mr. Mamud and can't recall when she prepared it.

She worked at the plaintiff's store, Sam's Family Store, from December 1993 untill 1998 and saw much more of Mr. Mamud and little of the plaintiff.

The defendant had a store in 1997, and she helped the defendant in that store. She cannot say whether the goods list in Ex. G.S. 2 (list of goods) were for the defendant's store or when it was prepared but admitted that some of the goods from the plaintiff's Sam's Family Store went to Bismilla Store. The plaintiff gave her notice to quit the job after a misunderstanding about some money.

The defendant Wilma Vanegas testified that she owns the Bismilla Store in San Ignacio and lives with her common law husband Kalil Mamud who owns his own store Sam's Variety Store. She know the plaintiff very well and came to know him in 1992, through Mr. Mamud. They lived together with the plaintiff in Belize City for a period of two to three years "as brothers and sister" and admits that the plaintiff gave her some $3,000.00 U.S. when she traveled to the U.S.A. in May 1994. She returned to Belize in 1995, found that Mamud was managing Sam's Family Store in San Ignacio, and assisted Mamud occasionally in running the store. She opened Bismilla Store in April 1996, with the plaintiff's assistance who advised her in running the store, authorized Mamud in his absence to give her stock of $60,000.00 from Sam's Family Store with no agreement as to repayment. The goods came in the plaintiff's name but invoices were made out in her name for Bismilla Store and when a customer needed a T.V. or fridge the plaintiff gave her the items from Sam's Family Store. She gave the plaintiff weekly cash payments of $600.00 or $800.00, depending on the sales. On 16th June, 1996, accompanied by the plaintiff she opened her first chequing account at Belize Bank Ltd. He helped her to use her cheque book and she gave him signed cheques to pay her bills in Belize City. However, she noticed that she was "over paying for goods received" and informed her common law husband Mamud.

In February/April 1997, she noticed that two cheques were missing and asked the plaintiff about these cheques who told her that he had the cheques to pay taxes and the accountant for Bismilla Store. She also told him that she would cease making weekly payments because she was not getting the goods for the money paid. He denied this and she and Mamud moved out of his house which created more conflict between them.

At the end of June, 1997, her common law husband Mamud ceased working for the plaintiff which made matters worse.

When shown Exs. G.S. 3 and 4 (two cheques) she admitted the signatures on the cheques were hers but denied typing the contents, that is, name of the plaintiff and sum of $52,462.50 on the cheque.

She denied receiving stock worth $29,000.00 and denies owing any of these sums of money to the plaintiff. She also denied receiving the 119 boxes as shown on the invoice Ex. G.S. 1 but admitted her signature is on the said invoice to help the plaintiff to avoid paying VAT but when she signed it, it had no date nor total.

She admits her writing is on pages 4 and 6 of Ex. G.S. 4 (list of goods) but stated this was the inventory she helped the plaintiff in taking at Sam's Family Store.

She states that the plaintiff's handwriting are on Ex. W.V. 4 - the cheque stubs 1 -10 Exs. W.V. 1, 2 and 3. The three cheques Exs. W.V. 1, 2 and 3 has her signature but the writings on the cheques are those of the plaintiff's - bills for B.E.L., cellular phones and Hop Sing which he deducted for goods given to her store.

Mamud who was a man with experience of store management also assisted in running her business. When she opened her store she sold footwear, cosmetics, gifts items and sometimes TVS but customers asked her for TVS, stoves and fridges even though they were not in her store she would send them to Sam's Family Store.

She opened her Bank account in September 1996, and after the plaintiff showed her how to write eight or nine cheques she knew what to write and what was going in and out and in September/October 1997, she wanted her cheque book back.

When shown Ex. W.V. 4 (cheque book stubs) she admitted stub No. 10 was dated 6th November, 1996 and that two other cheques in the plaintiff's handwriting are still in the book. She denied plaintiff gave her cheque book in November 1996.

Further, she admitted writing on stub No. 13 on 14th May, 1997, although the plaintiff had the cheque book from November/December 1996 to January/February/March until September 1997. She never asked the bank for another cheque book and was still depending on the plaintiff for advice.

She noticed in February/April 1997, that two cheques were missing but never reported it to the Police. She never knew that she had to pay taxes for the store but paid Trade License. The plaintiff told her that the two cheques were for taxes but she did not ask him for what kind of taxes nor told the Bank to stop these missing cheques.

She denied she received the goods and signed the invoice, denied taking delivery of the goods listed in Ex. G.S. 4, and denied she gave plaintiff the two cheques for monies she owed him.

She admits between May/October 1997, she wrote about ten cheques and her common law husband Mamud wrote the others. The defendant maintains she gave plaintiff blank cheques between May and October 1997 and he told her what to write even after she asked him about the two missing cheques. She states she paid $500.00 per week as rental for the shop, paid the plaintiff $600.00 to $800.00 per week for the stock and denied she sold TVS, stoves and fridges.

I have to decide these issues on a balance of probabilities.

On her own admission there is irrefutable evidence before me that the defendant signed Invoice Ex. G.S. 1 which is here reproduced.

"G. S. Trading

Cherish

Import & Export, Whole Sale & Retail,
Electronics, Cosmetics, Footwear & Clothing

P.O. Box 1162, No. 17 Orange St., Belize City, Belize, C.A.
Tel: 501-2-70011, Fax : 501-2-71005
Branch: No. 16 Orange St., Belize City, Belize, C.A.
Tel: 501-2-72443
121 Front St., Sea Palace Hotel, Philisburg, St. Marteen (N.A.)
Tel/Fax: 011-5995-25201

0174

Date March 15th 1996

____________________________________________________

However, the defendant has denied receiving the 119 boxes; denied it had any date or total and that she signed it in September/October 1996, not as stated 15th March, 1996, and that she signed it at plaintiff's request to avoid him paying VAT.

This oblique reference to fraud on the part of the plaintiff was not pleaded and I have to completely disregard this allegation.

I find the defendant to be a mature woman who on her own admission completed Primary Education and spent two years at Secondary School level at Sacred Heart R.C. School. In addition she worked for some years as a cashier at Liberty Store in Belize City, assisted her common law husband Kalil Mamud in managing the plaintiff's Sam's Family Store, lived with her common law husband who was an experienced store manager and she herself managed her own Bismilla Store.

I find it incredulous that the plaintiff with whom she admitted herself and her common law husband Mamud lived together as a family in Belize City, who on her own admission gave her $3,000.00 U.S. to travel to the U.S.A. and whom she admitted not only assisted her in opening her own business Bismilla Store by authorizing $6,000.00 worth of stock to be given from his Sam's Family Store, but who advised her in running and managing her infant business - an undoubted friend - would present an undated invoice to the defendant with no figure as to the value of the items.

I find it even more incredulous that the defendant who lives with her common law husband Mamud an experienced store manager for years having worked in the plaintiff's stores in Belize City and in San Ignacio, would sign such invoice Ex. G.S. 1 (Invoice) without consulting Mamud.

I do not believe that the defendant was innocent and naïve to have signed an undated figureless invoice - Ex. G.S. 1.

I accept the plaintiff's evidence on this issue and believe that the defendant signed the said invoice Ex. G.S. 1 and knew fully well what she was signing.

I believe further and accept Leonardo Chan's evidence that in 1996, he delivered 119 boxes from the plaintiff's business in Belize City to his Sam's Family Store and accept and believe the plaintiff's evidence that these 119 boxes which included "assorted cosmetics & shoes, slippers & sandals and ear rings, TVs, tape recorders & stove and assorted Merchandise" as listed on Ex. G.S. 1 were delivered to the defendant Bismilla Store pursuant to the agreement he had with the defendant "with whom he had a close relationship and her common law husband Mamud" that she would take the stock from Cherish Store which he had closed down on certain agreed financial terms.

Surely, if these goods were not delivered to the defendant's store, Mamud her common law husband, who managed the plaintiff's Sam's Family Store at the time and who close friendship with the plaintiff had come to an end, would have been an excellent witness on the defendant's behalf. The absence of his evidence speaks eloquently as to the truth of this matter.

Finally, Ex. G.S. 3 (cheque for $52,462.50) reads as follows: "Pay to the Order Gulab Sharma - Fifty two thousand four hundred and sixty two & Fifty cents only - dollars - Inv. No. 0174 dated March 15, 1996" (my emphasis). I find there is a clear connection with this cheque (Ex. G.S. 3) and the sum due on Ex. G.S. 1 (invoice ) for assorted stock valued at $52,462.50.

I believe and accept the plaintiff's evidence on this issue that the defendant typed out the contents of Ex. G.S. 1 and signed it for the sum of $52,462.50 for stock received. I do not accept the defendant's evidence on this issue because I find the defendant was not only a cashier for years at Liberty Store and therefore must have handled cheques; but most significant is that she signed this blank cheque without consulting or informing her common law husband Mamud, an experienced store manager.

I find it incredible that the defendant not only failed to report to the Police that this cheque, Ex. G.S. 3, (cheque for $52,462.50) was missing but also failed to report to the Bank in order to stop payment of the cheque but continued to seek the plaintiff's advice in running her business and in managing her chequing account.

With respect to the list of goods in Ex. G.S. 2 the defendant denies receiving these items while admitting that her handwriting was on pages 4 and 6 and state that these items were taken as Sam's Family Store Inventory.

Miss Copo, the shop assistant at Sam's Family Store, also admitted that she prepared pages 1 and 5 of Ex. G.S. 2 (list of goods) which were an inventory of Sam's Family Store but cannot say when the list was prepared or if it were for the defendant's store. However, she admitted that some goods from Sam's Family Store went to the defendant's store, Bismilla Store.

The plaintiff's evidence is a complete contradiction of the defendant's version of the events, stating that these goods were taken by the defendant with his consent from Sam's Family Store, valued at $29,514.00. Furthermore, she was indebted to him for a further $16,770.00 in payments to her store which was advanced by the defendant's common law husband Mamud from Sam's Family Store he managed for him.

Once again, I find it equally incredulous that the plaintiff with whom the defendant admitted lived with her and her common law husband Mamud "as a family", who rendered various acts of assistance to her not only in opening and running her store but advancing stock to her on credit, whom she trusted to manage her accounts rather than common law husband Mamud, would be telling lies against the defendant on this issue. I do not believe and accept the defendant's evidence. She is not a naïve and immature person.

I am further fortified in this view that the defendant owed the plaintiff the sum of $46,284.00 by reference to the cheque (Ex. G.S 4) for that sum of money which is more than a mere coincidence. I do not accept and believe the defendant's evidence that this was one of the missing blank cheques which she innocently signed.

Once again this oblique reference to fraud on the part of the plaintiff I must disregard since it was not pleaded.

The plaintiff denied he ever kept the defendant's cheque books whereas the defendant stated he kept it, wrote on the first ten stubs (Ex. W.V.4) and that the plaintiff had the cheque book from November/December until September 1997.

I find it strange that if the defendant and her common law husband Mamud moved from the plaintiff's house in April 1997, when there was a conflict already brewing and which she admitted grew worse as Mamud ceased working for the plaintiff in June 1997, why would she allow the plaintiff to continue to keep her cheque book.

I find from a perusal of Ex. W.V. 4 (stubs of cheque book) that it clearly reveals that the first ten cheques from 30th September, 1996, to 6th November, 1996, were written in a handwriting completely dissimilar to those remaining stubs of that cheque book. The defendant admits she wrote on some of the stubs whereas Mamud wrote the remainder. How could the defendant and Mamud write on 37 of the stubs of Ex. W.V. 4 for the period 14th May, 1997 to 9th September, 1997, after the plaintiff wrote on the first ten stubs (Court notes 30th September, 1996 to 6th November, 1996), if the plaintiff continued to keep and manage the said cheque books until September 1997. The defendant's evidence is so untruthful in every respect.

On this issue I believe and accept the plaintiff's evidence.

I therefore give judgment for the plaintiff in the sum of $98,746.50, with interest at 8% from 2nd May, 1997. Costs to be agreed or taxed.