Supreme Court
Action Nos. 37 and 60 of 1974
Action No. 131 of 1979
11th October, 1982
Moe, CJ.

Mr. Edwin Flowers for the Plaintiff.
Mr. Dereck Courtenay, S. C. for the Defendant.

Contract - Non-payment of promissory notes - Discharge from liability - Section 46 and section 89 of Bills of Exchange Ordinance, Chapter 209 - Sufficient presentment Counterclaim for an account - Costs.

J U D G M E N T

The Plaintiffs in these three Actions heard together claimed certain sums from the Defendant as maker of various promissory notes, which they claimed were duly presented for payment, but have not been paid. The Defendant denied that the notes were duly presented and submitted that he is discharged from liability on these claims on the ground that the requirements stipulated by section 46 of the Bills of Exchange Ordinance, Cap. 209 or under section 89(ibid), have not been fulfilled.

By section 89(1), where a promissory note is in the body of it made payable at a particular place, it must be presented for payment at that place in order to render the maker liable. The note, Exhibit J.H. 1, in its body was made payable at the Bank of Bermuda, Ltd., Hamilton. But the evidence is that it was presented at the Royal Bank of Canada, Belize City. There is no evidence that that note was presented as required under the section presentment, according to which it is essential, and I uphold the submission of the Defendant with regard to the note. The notes, Exhibits J.H.2 and 3 in their bodies were payable at the Royal Bank of Canada, Belize City and according to the evidence were there presented for payment (See Exhibit J.H. 11).

Section 46 on which the Defendant further relied provides as follows: "-- (1) Subject to the provisions of this Ordinance, a bill must be duly presented for payment, and if it is not so presented the drawer and endorsers shall be discharged. (2) A bill is duly presented for payment which is presented in accordance with the following rules: -- (a) where the bill is not payable on demand, presentment must be made on the day it falls due." One provision of the Ordinance in the light of which subsection 2(a) is read is section 14 which provides for a grace period of three days, and by virtue of which the note Exhibit J.H. 2 made payable on 9th November, 1973; the note Exhibit J.H. 3 made payable on 9th November, 1974 was due and payable on the 12th November, 1974. By section 46(5) an instrument is presented at the proper place if it is presented at the place of payment specified in the instrument, and section 46(4) requires that the presentment be made either to the person as payer or to some person authorized to pay or refuse payment on his behalf if with exercise of reasonable diligence such persons can there be found.

There is evidence that the note Exhibit J.H.2 payable on the 12th November, 1973 at the Royal Bank of Canada was put in the hands of the Bank for collection. The Bank sent the Defendant a letter dated 10th November, 1973 requesting payment. The Defendant answered by letter dated November 15th, 1973 refusing to pay. Thus, on the 12th November, 1973 when the note is regarded as being due, it was at the Royal Bank of Canada and the Defendant was aware that it was there for payment. I held that in these circumstances there was sufficient presentment in respect of that note Exhibit J.H.2. The Defendant has failed to pay and the Plaintiff is entitled to recover the sums due on that note being $20,900 with interest from 9th November, 1973 at 8-1/2% per annum until payment.

With regard to the note Exhibit J.H. 3, the inference drawn from the evidence is that on 12th November, 1974 when it was payable it was at the proper place for payment, i.e. the Royal Bank of Canada. There is no evidence before me that the Bank at any time requested of the Defendant payment of this note before issue of the Writ. I am unable to find on the evidence before me that the note was presented on the day it fell due. I, accordingly, also uphold the Defendant's submission with respect to that note Exhibit J.H. 3.

The Defendant counterclaimed for an account as to what is due to him from the Plaintiffs by way of bonuses, and for an order for payment of the sum found due. It was common ground between the parties, (the Defendant pleaded and the Plaintiffs admitted) that the Defendant was entitled to 10% of the profits, before payment of taxes, of the enterprises of the Plaintiffs; and further he was employed by the Plaintiffs from 1st October, 1960 until 9th November, 1972.

There is evidence that the Defendant was paid bonuses during and for the period of employment. The issue, which arose, was whether the 10% was properly calculated. Was it 10% of the net as shown in the financial statements of the respective enterprises, or was it 10% of the net profit with certain sums added back to and/or subtracted from that amount?

The Plaintiffs put in evidence an agreement Exhibit J.H. 4 between the parties which provided as follows, "We also agree to further pay you a bonus of 10% of the profits before taxes from our enterprises of which you are in charge." As judicially defined, profits mean profits after deducting the expenses of earning it. But there seemed to have been some question raised between the parties as to whether the Defendant's bonus was to be calculated according to the definition of profits just quoted. The Defendant maintains that his bonus is to be calculated differently and the Plaintiff's accountant, Mr. Tattersfield, gave evidence that the above clause of the agreement relating to bonus was not clear. This evidently was the position because the Plaintiffs sent to their accountants a letter Exhibit J.H. 9, which set out how the yearly bonus due to the Defendant was to be calculated. The letter Exhibit J.H. 9 itself shows that it was clarifying how bonus was to be calculated in respect of years previous to the year in which the letter was written. There is no dispute as to whether the letter sets out an agreed position and I hold that the Defendant is entitled to bonus as set out in that letter Exhibit J.H. 9. I find that the calculation is to be as followed: --

1. Take the net profit

2. Add back management fee to Bullmark

3. Add back any interest earned by the respective enterprise

4. From that amount deduct amortisation figure per year of $7,755(for 10years)

5. Also deduct bonus earned by Ford Young        ________________
   

   10% of

   _________________

The resulting figure is bonus for the Defendant.

By the two letters Exhibits J.H. 4 and J.H. 9, the Defendant is entitled to bonus on the profits of the enterprises of which he was in charge. By his evidence he was in charge of the timber division only as from 1971, and from that year was entitled to a bonus of 40% of the profits of that division. This rate of bonus was not disputed by the Plaintiffs. The rate of 10% will apply, therefore, in respect of the years 1961- 1971 inclusive. For the year 1972, the Defendant gets 40% of the profits of the timber division only.

An account taken in accordance with the formula as above is set out as an Appendix hereto. The calculations do not include any sums relating to interest since I found that interest earned was already taken into account in keeping with the formula. For I held such sums were already added back since the sums were subtracted from the operating costs to arrive at the net profit. While the Defendant urged addition back of agency fees, I did not accept this as being in accord with the formula set out in Exhibit J.H. 9 and the amortization figure was used for a ten year period in keeping the terms of the said Exhibit. There are no calculations for the years 1970 and 1971, which were loss years, and an estimated amount is included for years 1966 as indicated in Exhibit 1A-1. I find that there is due and owing as bonus to the Defendant the sum of $70,262.33, and the Defendant will have an order for payment of that amount. The Plaintiff to have 1/3 of his costs. The Defendant to have 2/3 of his costs.

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