Supreme Court
Action No. 9 of 1983
5th December, 1983
Rajasingham, J., Q.C.

Mr. Denys Barrow for the Plaintiff.
Mr. B.Q.A. Pitts for the Defendant.

Sale of goods - Oral agreement - Balance due on sale price.

J U D G M E N T

The Plaintiff's action is for the sale price of a deep freezer sold by him to the Defendant at a price of $800. The Defendant, while acknowledging the sale, states that the price she agreed to pay was only $500. The parties agree that the Defendant had paid a sum of $250 towards the price of the deep freezer. Counsel for the Defendant stated in Court that the Defendant had deposited the sum of $250, which she says is the balance due, in the Registry to the credit of this case.

The Plaintiff gave evidence and said that he had discussed the sale of the deep freezer with his daughter-in-law, the daughter of the Defendant, in the presence of his son. His daughter-in-law told him her mother, the Defendant, was interested and went downstairs with him to see it. The Plaintiff says he asked his son what he could sell it for and his son told the daughter-in-law, whose name was Betty, he could sell it for $800. The Plaintiff says he told Betty that "if they came up with cash off the barrel" he would give it to her for $600. He told her that if he had to "work on it" he wanted $800. He said there was no further discussion. One day when he returned from the farm the freezer had been removed. That was on the 13th of May, 1983. He and his wife went to Belize City on the 14th of May, 1983, to the Defendant's house. He added that between the date of his discussion with Betty and the date of removal of the freezer, he had worked on the freezer. On the 14th May, 1983 which was a Saturday, the Defendant paid him $250 and, he says, promised to send the balance through her daughter on Monday. She did not do so.

In cross-examination the Plaintiff agreed that he had made no agreement with the Defendant personally. He said that prior to going to her house he did not know her. This makes the message conveyed to the Defendant by her daughter important. He says he knows of no agreement made between the Defendant and his wife, but agreed she had authority to do so. He denied that the Defendant, when she paid the $250 on that Saturday, said she was paying half the agreed price.

The Plaintiff's wife gave evidence and she said she heard Betty tell her husband her mother was interested in the freezer, but that when they went downstairs later she did not go with them. She said the freezer was removed on a Friday which she thought was the 14th of May. She said they went to Belize City on the Saturday. She denies discussing price with the Defendant. She denied the freezer was delivered on the 8th of May, 1983, a Sunday. She said it was delivered on the 14th, a Friday. She said the Defendant never came there before that date. She is corroborated on this by the Defendant's daughter, Elizabeth Gentle. She said she discussed nothing with the Defendant when she came for the freezer. She denied any discussion about the Defendant paying half the money. Mrs. Olivera said that the Defendant told her that that was the only time she had free and the owner of the vehicle had picked her up and brought her so she could take the freezer, and that she did not get the time to go for the money before she came. Mrs. Olivera let the Defendant remove it without payment. Mrs. Olivera remembered that when they went to Belize City she did not have to introduce her husband because they met the Defendant's son at the door and the son knew her husband. She corroborates her husband by saying there was nothing said of paying half the price when the $250 was paid, and states that the defendant said that was all the money she had till Monday. She agreed Defendant held it out to her and she said it should be given to her husband.

There was a lot of reference to matters that happened thereafter but as they do not have any reference to the price I do not intend to deal with that evidence in any detail, except to note that all attempts to recover the freezer were made by Mrs. Olivera and that those attempts failed. That evidence was presumably led to show that it was Mrs. Olivera who took an active part in matters concerning this freezer. The Defendant also said that on the last occasion Mrs. Olivera sought to remove the freezer the Defendant had the money to pay the balance but Mrs. Olivera would not listen and wanted to remove the freezer. I do not believe this evidence as from her manner it appeared to me to be an invention made on the spur of the moment.

The Defendant gave evidence and stated that her daughter Elizabeth ascertained the price from Mrs. Olivera, her mother-in-law, and told her it was $500. She said she went to Hattieville herself and verified the price as being $500. This was sometime in April, 1983. She said she went again on the 8th of May with a vehicle and told Mrs. Olivera she had not brought the money and asked if it was alright for her to take it. She said her pay day was the 13th and she would make the first payment then. She says she told Mrs. Olivera she was going to make a first payment of $250 and pay the rest later, and Mrs. Olivera agreed to that. She said she does not know the Olivera's son Raymond, although she herself earlier referred to Mrs. Olivera as her daughter's mother -in-law; perhaps Betty's husband was another son. She said she next saw Mrs. Olivera when she came on the 13th to collect the money. She gave them the $250; she says she offered it to Mrs. Olivera because it was Mrs. Olivera she had made her arrangement with. Since she had never before met Mr. Olivera, I am inclined to believe she may have done so as Mrs. Olivera was the person she knew. It is of no great significance to my mind. She said she then stated "This leaves a balance of $250". She said she said this to both. Then she made a curious slip. She had earlier said that when she offered Mrs. Olivera the money, Mrs. Olivera asked her to give it to her husband; now she said that Mrs. Olivera smiled when she said "that leaves a balance of $250" and "took the money". In cross-examination of the Plaintiff when it was suggested that the money had been given to Mrs. Olivera and the Plaintiff denied it, Counsel asked Plaintiff whether it had not been offered to Mrs. Olivera and Mrs. Olivera had not asked that it be given to Plaintiff. The same suggestion was made in cross-examination of Mrs. Olivera. Both Mrs. Olivera and Mr. Olivera agreed that that was how it happened, and Plaintiff says he received the payment. The defendant went on to speak of Mrs. Olivera's attempts to collect the balance money or repossess the freezer and her refusal to give it up and of a frustrated attempt to pay the balance due.

In cross-examination she said she first learnt of the price from her daughter. She says she did not take her daughter's word on the price so she went to discuss it personally with the seller and to ascertain who would transport the freezer. In cross-examination she says it was agreed on the first visit that she would pay in installments and would pay the first installment on the 13th when she was paid. This varies from her position in examination-in-chief where she said that when she went there on the 8th of May, the second visit and the day she collected the freezer, she told Mrs. Olivera she had not brought the money and would make the first payment on the 13th, her pay day. She now said in cross-examination that she had been merely reminding Mrs. Olivera of what she had said on the first visit. This raises a strong probability that Mrs. Olivera is right and there was only one visit. She went on to say that she only paid half at first because she had other uses for the money she had with her. At this stage of the cross-examination I had the distinctive impression that she was ad-libbing freely.

The Defendant called her daughter, Elizabeth Gentle. She says she told her mother of the deep freezer and of the price being $500. She too says Mrs. Olivera told her the price was $500. She says she told her mother "of it in April" and it was brought to her mother's house on the 8th of May, 1983. In cross-examination she agreed at first that Mr. Olivera had said he wanted $800 if he fixed it up, and then later prevaricated about when and in whose presence it happened. She added that she knew of only one occasion when her mother went to Hattieville (where the plaintiff had the freezer) and that was on the day she brought it back. This supports Mrs. Olivera's evidence. In re-examination she did not really change this piece of evidence. If that is true and it means that in fact the Defendant did not go earlier in April, it means she did not discuss price with Mrs. Olivera; because even she does not say she discussed the price on the day she went to collect the freezer.

I was struck by the contrast between the manner in which Mr. & Mrs. Olivera gave their evidence and the manner in which the Defendant gave evidence. I am afraid I found the defendant most evasive and unconvincing. Her daughter was very uncomfortable and unconvincing in the witness box.

On the evidence I am satisfied that the only time any price was mentioned was when the Plaintiff told Elizabeth Gentle that he would accept $600 as is or $800 after he had worked on it - repaired it. His assertion that he worked on it is uncontested. I am satisfied that this price was conveyed by the daughter to the Defendant.

I, therefore, hold that the freezer was sold at $800 by the Plaintiff to the Defendant and that the Defendant knew that to be the price when she collected it on the 13th of May, 1983. I give judgment for Plaintiff in a sum of $550. If the Defendant has deposited a sum of $250 to the credit of this case, from the Defendant to the Plaintiff, the balance sum due will be $300. I award costs to the Plaintiff.

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