Supreme Court
Action No. 138 of 1979
26th April, 1983.
Alcantara, J.

Mr. Edwin Flowers, for the Plaintiff.
Mr. Michael C. Young, for the Defendant.

Building Contract - Claim for price of glass blocks - Defendant alleging that he paid the price to the son of the Plaintiff, who was acting as agent for his father - Court rejecting allegations of Defendant.

J U D G M E N T

The Plaintiff's claim is for $1,646.84 for the price of goods sold and delivered. There is no dispute that 124 glass blocks were sold and delivered to the Defendant. The Defendant puts the Plaintiff to the proof as to the value of the glass blocks. I find as a fact that the true value is that claimed by the Plaintiff.

The Defence is that the goods supplied have been in fact paid for. Paragraph 1 of the Defence reads as follows:

"The Defendant satisfied and discharged the Plaintiff's claim by payment before action to the Plaintiff's agent, Luis Avilez.

The history of the Defendant's dealing with the Plaintiff is that the Defendant wanted the Plaintiff to enclose the downstairs of his house. The Plaintiff was and had been a building contractor. About 18 years previously the Plaintiff had built the Defendant's house. The enclosure was built, but there is a dispute as to who was the contractor, the Plaintiff or his son, Luis Avilez. This is very important as there was a settlement of account by the Defendant with Luis Avilez. The question to be answered is whether in settling accounts, Luis Avilez acted on his own behalf or on behalf of his father, the Plaintiff.

According to the Defendant, he contracted with the Plaintiff although it was the son who executed the work. Payment for the work was made to the son as agent for the Plaintiff and the payment included the 124 glass blocks.

According to the Plaintiff he was not a party to the contract and he had not been paid for the 124 glass blocks. Although he was at the relevant time still a building contractor he wanted to retire from this line of business. He did inform the Defendant that he did not want to do the work and passed the Defendant to his son Luis Avilez. He admits that he did give advice to his son about the execution of the work, but he had nothing to do with it. During the work the Defendant came to the Plaintiff's office and saw how some glass blocks had been fitted into the construction of the Plaintiff's own house. The Defendant wanted some for his building. In fact the Defendant's evidence is that he wanted the glass blocks even before he saw them. The Plaintiff undertook to procure them from Mexico and did so. They were duly delivered to the Defendant's house and incorporated in the new building. On another occasion the Plaintiff gave some advice as to the flooring and in fact gave the Defendant a number of cement tiles free.

The son, Luis Avilez, has gone into the witness-box and has denied ever receiving advice from the father. Similarly he has denied ever receiving cement tiles from the father. Neither the Plaintiff nor the son are particularly good witnesses and have contradicted one another on more than one occasion

The Defendant in his Defence pleads, inter alia, as follows:

Paragraph 3 "Before completion and during the course of the said works the Plaintiff and the Defendant agreed on the one hand to drop certain items from said Bill of Quantities for which the Defendant would be given credit……………"

Paragraph 4 "As the said works progressed the Defendant at the request of the Plaintiff made payments from time to time by cheque to the Plaintiff's agent, the said Luis Avilez…………………"

Paragraph 5 "At a date uncertain subsequent to the 20th November, 1975, the Plaintiff and the Defendant, together with Plaintiff's clerk, Mr. Simon Gongora, reviewed together and agreed upon what works had been done and what materials had been supplied by the Plaintiff and what work remained to be done."

The Defendant has gone into the witness-box and has given evidence not only about the formation of the contract with the Plaintiff Pedro Avilez, but also about what transpired subsequently in order to corroborate that the contract was with the father and not with the son.

What the Defendant says happened after the contract support the allegations in the Defence's pleadings but is contrary to what the Plaintiff says happened.

I have said before that the Plaintiff Pedro Avilez is not a particularly good witness. Nonetheless his evidence on the vital issues has the ring of truth. The Defendant is a much better witness, but in his evidence on the vital issues the ring of truth is not there. I therefore prefer the evidence of the Plaintiff and draw support for my decision from the fact that all payments were made to Luis Avilez and all receipts made in the name of Luis Avilez. Also from the fact that neither the Bill of Quantity nor the first draft said to have been in the name of Pedro Avilez have been produced by the Defendant although mentioned in support of his case.

I come to the conclusion that the Plaintiff Pedro Avilez was not a party to the building contract and that Luis Avilez was not his agent. The contract was entered into between Luis Avilez and the Defendant. Consequently the Plaintiff succeeds in his claim. Judgment for the Plaintiff in the sum of $1646.84 and costs.

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