Supreme Court
Action No. 381 of 1980
25th April, 1983
Alcantara, J.

Mr. Glenn Godfrey for the Plaintiff.
Mr. Dean Lindo, S.C. for the Defendants.

Damages - Trespass to land - Conversion of goods - Alternative claim on contract - Licence to Defendant - Time not of essence of agreement - Quantum of Damages.

J U D G M E N T

This Action has had a somewhat chequered career. The original indorsement to the Writ of Summons was for "A reasonable price for a quantity of logs sold to the Defendants by the Plaintiff."

Leave was sought and obtained after appearance, but before delivery of the Statement of Claim to amend the indorsement to the Writ to read:

"The Plaintiff's claim is for damages for trespass to land and conversion of goods."

The Action came for hearing on the 28th March, 1983. After the Plaintiff had given evidence and was being cross-examined, Counsel for the Plaintiff sought to amend the Writ again and also the Statement of Claim. Leave was granted.

The Statement of Claim has been amended to claim "damages for trespass and/or conversion of goods, or in the alternative a reasonable price for the said logs." The Writ should also have been amended to base the alternative claim on contract or quasi contract. It was not. However there was an undertaking by Counsel to have it suitably amended. In order to get on with the case I decided to proceed on the strength of such undertaking.

There is no dispute that an agreement was entered between the Plaintiff and the first Defendant for the purchase by the Plaintiff of 7,500 acres of land situated at Big Falls, Toledo District for the sum of U.S. $301,885. The agreement dated 27th April, 1979 has been made an Exhibit. The subsequent conveyance of the land has not, but nothing arises out of that.

It is common ground that when the property was bought there was a quantity of lumber on the land which had been cut down by the Defendants. A quantity of lumber is set out in the particulars of claim. The Defendants in their pleading do not make an issue of the quantity and there is a formal admission that the logs or lumber was removed by the Defendants.

The Plaintiff's case is that when he bought the property he gave leave and licence to the Defendants to remove the lumber from the land, but on condition that they did so before the start of the rainy season that year. He further says that the lumber was not removed when it should have been, and consequently, the Defendants had no right to remove the lumber without paying for its value.

The Plaintiff's alternative case is that by virtue of an agreement dated 25th April, 1979 he gave leave and licence to remove the logs, but that the Defendants undertook to pay a reasonable sum for the said lumber or logs.

The Defendants' case is that the agreement to remove the logs was made with the first Defendant personally and that there was no question of any payment. It was not one agreement, but two different ones, and not only to remove lumber, but also to cut down trees. Although the Plaintiff has pleaded an agreement to base his claim for the payment of the lumber the only evidence-in-chief he gave in relation to it is this:

"At the time of agreement he asked about the logs he had down. Trees he had felled. I told him to go ahead and remove trees he had down if he could finish by the rainy season".

At the end of the case for the Plaintiff one thing was clear. There was no case against the second Defendant, the wife of the first Defendant. There is no evidence whatsoever that she took part in any of the transactions, or was a party to them. The claim against her stands dismissed with costs.

On the evidence I have come to the following conclusions.

1. The Plaintiff gave a licence to the Defendant to remove from the land the Plaintiff had bought, the lumber that the Defendant had already felled and was lying on the ground prior to the actual conveyance of the land.

2. Although the Plaintiff set a time limit, before the commencement of the rainy season, for the removal of the lumber, time was not the essence of the agreement.

3. At no time was there a contract that should the Defendant fail to remove the lumber in time, the lumber would become the property of the Plaintiff and the Defendant would have to pay for it.

4. The licence given by the Plaintiff was only in respect of lumber lying on the ground.

5. Apart from the question of the pine boards, there was never any agreement that the Defendant could continue to fell down trees at his discretion for his own use and benefit.

6. There was a second agreement extending the time within which the Plaintiff could cut, saw and remove the lumber lying on the ground. This was an extension of the licence originally given.

7. The second agreement did not authorize or include in retrospect the trees that had been felled down by the Defendant after he sold the land to the Plaintiff.

8. On the Plaintiff's own admission he felled 60 trees which he subsequently cut, sawed and removed. This he was not entitled to do.

The law of conversion in relation to lumber was considered by this Court in the case of Stephen Stedman v. Harold Kratzer, 4th March, 1983. I refer myself to it.

I find that the felling of these 60 trees was a conversion of property which was in the possession of the Plaintiff. It was his land, they were his trees. The Plaintiff is entitled to succeed on this ground.

Although I have been given the value for board feet, cubic feet and tons of different types of timber, I have little guide on how to assess the value of 60 trees, especially when I have not been told what type of lumber it was. Adopting a rule of thumb in respect to rosewood, which I am told that it fetches $250 U.S. per ton, and that a tree weighs between a half to a ton, I come to the conclusion that a tree already felled and hauled might be worth $150 U.S. As the trees might have included other less expensive types, $100.00 U.S. per tree on an average is not far fetched. I will deduct a half for labour and expenses leaving me with $100 per tree. 60 trees by $100 each is equivalent to $6,000. I accordingly give judgment for the Plaintiff against the first Defendant in the sum of $6,000 and costs. For the sake of clarity now or in the future when the Court talks of dollars they are always in Belize dollars. When the intention is to refer to any other currency which uses the dollar as a unit, then the particular nationality of the dollar would be specifically mentioned.

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