Supreme Court
Action No. 14 of 1979
21st March, 1983
Alcantara, O.B.E., J.

Mr. Michael Young for Plaintiff
Mr. Denys Barrow for Defendant

Contract - Oral Agreement - Terms of oral agreement - One who alleges must prove - Failure in burden of proof - Counterclaim - admission.

J U D G M E N T

It is really a pleasure to deal with a case as pleaded in this Action. Counsel have not only admitted what there was to admit, but have pinpointed the issues in this case with clarity and unambiguity.

The Plaintiff's claim for $1,764.87 which he paid to the bank under a guarantee, is admitted. The Defendant has put forward a counterclaim to the effect that:

"In or about the month of October, 1976 the Plaintiff and the Defendant entered into an oral agreement to carry on certain farming enterprises involving the growing, harvesting and sale of corns and beans and the rearing and sale of pigs and sheep."

This is admitted by the Plaintiff in paragraph 2 of his Defence to Counterclaim.

What is in issue only is the terms of the oral agreement and what, if any, is still owed by the Plaintiff to the Defendant. Plus, an allegation by the Defendant that the Plaintiff wrongfully carried away some pigs and sheep.

The Defendant's case is that according to the terms of the agreement the Plaintiff was to provide the money for the expenses and he, the Defendant, would provide the know-how and the land and that the proceeds would be divided equally.

The Plaintiff's case is that the net profits were to be divided in the proportion of 60:40 and not equally. That insofar as the corn and beans were concerned he would defray the expenses, but that insofar as the costs of feeding the pigs, but not the sheep, they were to be borne equally.

The only witnesses have been the Plaintiff and the Defendant. The Plaintiff has been able to produce as an Exhibit, an exercise book, wherein he kept a record of all the monies he either advanced or paid to the Defendant. The Defendant has said that he kept accounts of the partnership and of all the monies he received from the Plaintiff. He has not produced any accounts. This would not have been necessary if he had given viva voce evidence of his expenditure. His evidence however is:

"I can't recall exact figures" and "I can't recall money I spent,"

though maintaining that he spent his own money in relation to the farm. I am of the opinion that the Defendant never kept any accounts. The Plaintiff, on a number of occasions during the relevant period, did request the Defendant to show him the accounts so that he could ascertain the state of their joint enterprise. Somehow or other, the accounts were never made available to the Plaintiff.

On the principle that he who alleges must prove, I find that the Defendant has failed in his burden of proof to establish the expenditure of the sum of money alleged in his pleadings. The allegation in his counterclaim proves nothing. There is nothing in the pleading of the Plaintiff which can amount to an admission, whether explicitly or implicitly, that the Defendant expended the monies alleged by him.

On the other hand, the Plaintiff discharged his onus, insofar as the monies which he alleges were paid over to the Defendant.

Apart from the pigs and sheep, I would be entitled on the evidence before me to dismiss the counterclaim, but I think that I should make a finding as to the terms of the contract. Notwithstanding the fact that the Defendant has failed to satisfy me what, if any, money is owing to him, I am of the opinion that this was a 50:50 contract of the proceeds, not a 60:40 of the net profits. I come to this conclusion because, in the absence of any other evidence, it is normally, though not exclusively, the practice to enter into a joint venture of equal terms. The terms alleged by the Defendant accords more with the general practice than those of the Plaintiff. On this matter I prefer the evidence of the Defendant and I so find.

The last point is the question of the 7 pigs and 7 sheep that were taken away by the Plaintiff.

It is up to the Plaintiff to convince this Court that his action was justified, in the sense that according to the proper accounting of the partnership they belonged to him. This he has failed to do and therefore he must be held accountable. He has said in the witness-box that he took the pigs and sheep away because they were not been taken care of and were running wild. A preventive action. It is significant that when the pigs and sheep were running wild they were alive and healthy, whereas when they were taken into protective custody by the Plaintiff one pig and all the sheep left this world for the happy hunting grounds before being slaughtered and sold. Even if I were to accept the Plaintiff's explanation, which I do not, he was bound not only to inform the Defendant, but to account for any money which accrued. This he did not do. The parties are in disagreement as to the value to be placed on the pigs and sheep. The onus of proof on this matter is on the Plaintiff as he was the one who took the animals away. He has failed to discharge this burden as I do not accept his valuation. In the absence of any other valuation I accept the valuation of the Defendant. His evidence is that he is owed $743.75 for the pigs and $128.50 for the sheep. In my view he is entitled to succeed. I give judgment on the counterclaim for the sum of $872.25.

The result is judgment for the Plaintiff in the sum of $1,764.87 on his claim and judgment for the Defendant in the sum of $872.25 on his counterclaim. I think that the proper order as to costs is that each party should pay his own costs.

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