Supreme Court
Action No. 102 of 1980
22nd July 1982
Rajasingham, J., Q.C.

Breach of contract - Waiver by Plaintiff of prepayment of advance but Defendant failing to pay advance - Defendant also failing to pay for hire of tractor and lowboy under same contract - Contract lawfully terminated by Plaintiff.

J U D G M E N T

The Plaintiff claims a sum of $4,647.64 for the hire and transport of a D7 tractor and the hire of a lowboy to the Defendant. The Defence claims that the Plaintiff terminated the hire in breach of his agreement with the Defendant and thus caused pecuniary damage to the Defendant. The Defendant counterclaimed for a sum of $5,000.00 as special damages but led no proof of that claim.

The hire of the two vehicles is not contested. In fact the Defendant does not deny that a sum of $262.64 is due for the hire of the lowboy and the gasoline supplied for it. It is the terms of hire that have become an issue between the parties. The Plaintiff's Managing Director, Mr. Polack, states that he required an advance for the hire of the D7 tractor, and the Defendant agrees that an advance was required but states that he explained to Mr. Polack that he himself would only be paid by Government on the contract to build a road on the basis of work completed at the end of every two week period and hence he, the Defendant, could not raise an advance. Curiously enough the D7 tractor was in fact supplied without the pre-payment of an advance. Mr. Polack explains the reason for this being the delay in supplying the tractor owing to its having to undergo repairs, a delay Mr. Polack says was of four weeks duration, but which the Defendant says was nearer to three months. However, the real matter in issue would appear to be whether an advance was required to be paid in due course after the hiring had commenced. Mr. Seawell himself admits to paying an advance to the other hirer, Stedman. I am satisfied therefore, that an advance appears to be the normal practice unless for reasons such as acquaintance it was waived. The parties in this Action were not so acquainted and in the circumstances I am inclined to believe Polack when he says that all he waived was the requirement of pre-payment. The Defendant has not, by correspondence or even in the pleadings, challenged this position. In fact he ignored all correspondence.

There is no doubt that the Plaintiff's Action in withdrawing his D7 tractor played a part in the Defendant losing his contract, but Polack's Action was justified in view of Defendant's default both in paying an advance and in paying the hire regularly. It would appear that the Defendant set out to do the contract without capital and in the expectation of paying from receipts, but events overtook him and caused him to default.

I allow the Plaintiff's claim of $4,647.64 with costs. I dismiss the Defendant's counterclaim.

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