Supreme Court
Action No. 81 of 1979
26th February, 1982.
Alcantara, J.

Mr. Michael C.E. Young for the Plaintiff.
Mr. Wilfred P. Elrington for the Defendant.

Contract - Oral contract for repair of a motor vehicle - Dispute as to the terms of the contract - Whether contract was to effect necessary repairs to the motor vehicle or to do repairs to certain specifically identified spots on the motor vehicle - Contract price - Determination of contract price where there is a dispute - Time - Whether time was of the essence to the contract - Defendant averring he detained the motor vehicle in exercise of a lien - Whether Defendant entitled to detain Plaintiff's motor vehicle as a lien for uncompleted work done on the motor vehicle by the Defendant.

J U D G M E N T

Once, a man had a car and a friend. Now he has neither the car nor the friend. The man is the Plaintiff. He owned a 1968 Chevrolet, which was registered as a taxi. He wanted it repaired after it had been involved in an accident. The friend is the Defendant who is a car repairer, and does paint and bodywork.

An agreement was entered between the Plaintiff and Defendant to repair the car. The terms of the agreement are very much in dispute. The Plaintiff in his pleadings, paragraph 2 and 3 of the Statement of Claim, alleges:

"2. By oral contract made on or about the 13th November, 1978, the Defendant agreed to effect necessary repairs to the body of the said car D-3441, including the replacement of the front windshield (windshield to be supplied by the Plaintiff) for a price of $600.

3. It was a term of the said agreement that the said repairs would be completed within two weeks of delivery of the car to the Plaintiff."

The Defendant does not admit paragraph 3 of the Statement of Claim, and further alleges the following in paragraph 3 of his Defence:

"3. By oral contract made on or about the 15th November, 1978, the Defendant agreed to effect repairs to certain specifically identified spots on the body of the said car D-3441 and to replace the front windshield at the price of $750."

What the Court has to decide on the evidence is what were the terms of contract or agreement, and specifically three matters:
A. What was the contract price: $600 or $750?
B. What was the work contracted for: to effect necessary repairs or to effect repairs to certain specifically identified spots?
C. Was time the essence of the contract?

On the evidence, I am satisfied that time was not originally of the essence of the contract in the sense that the work had to be performed within 14 days. I find, however, that it was a term of the agreement that the repairs should be executed diligently and expeditiously. The Plaintiff wanted the repairs done whilst he was in Mexico for a fortnight, commencing on the 21st November, 1978. The Defendant was aware of this and it was agreed that he would do his utmost to have the car ready immediately or soon after the Plaintiff's return from Mexico.

As regards the contract price, I find that the Plaintiff is mistaken on this point. There was an initial contract for $150 for the repair to the front left fender which had been damaged by the accident. Then there was another contract for $600 for the repair to the car. I am satisfied on the evidence that both sums were cumulative. On this I accept the Defendant's evidence in preference to that of the Plaintiff. I think he, the Plaintiff, is mistaken as to the total figure arrived at. I therefore find that the contract price was for $750.

Insofar as the work required to be done to the car, I accept the Plaintiff's evidence on the matter. There was never any question of only specific 'spots' to be repaired. There were two specific items: the fender and the windshield. In cross-examination, the Plaintiff said that the Defendant told him, "For the sum $600 I am going to look over your car thoroughly, general repair, spray. When I give the car back to you it is going to look new." Here are some extracts of what the Defendant himself said in examination-in-chief which support the Plaintiff's contention:

"He asked me if I could repair whole car, because it was in bad condition. We then made agreement. Asked me how much the whole work.

Both of us examined car and I told him I would do the patching whatever I could see on car. I did not give any specific time for concluding work as the car was in bad condition."

I accept the Plaintiff's version of what happened, apart from the fact that I hold he is mistaken as to the contract price. Therefore, I find that the work to be carried out on the car is that alleged by the Statement of Claim.

Having spelled out the contract, I now come to the breach and the claim.

The Plaintiff is claiming (a) damages for breach of contract to repair the Plaintiff's car D-3441, (b) damages for wrongfully detaining the said motor car, and (c) the return of the said car or its value. He is in fact claiming a total of $4,850.

The Defendant's version of the contract is different, but that has already been decided by me. His defence as to the breach is that there was no breach and that all the work he had undertaken to do had been completed by the month of January. He further alleges in paragraph 5a as follows:

"The Defendant avers that the said motor car is being detained in exercise of a right of lien on the said car to which the Defendant was and is entitled."

The Defendant is also counterclaiming for the balance of the contract price: for $450. He admits having received $300 as an advance. The Defendant further alleges that more work than contracted for was required and that the Plaintiff refused to pay for this additional cost, and also refused to supply the Defendant with the windshield or with money to buy rubber for the windshield which the Defendant had undertaken to replace. He is saying that, due to the Plaintiff's breach of contract and repudiation of the same, he has suffered damages, and he is claiming damages.

Having seen and heard the Plaintiff and the Defendant in the witness-box, I prefer the evidence of the Plaintiff to that of the Defendant; therefore I accept the Plaintiff's evidence whenever it conflicts with that of the Defendant, except to the question of the contract price. But first as to the question of the lien. What is the law on the matter? Counsel for the Defendant has referred me to the following authorities: Charlesworth's Mercantile Law 13th Ed. p. 381 and to Halsbury's (not quoted), Ender & Watson's Buildings Contracts & Practice 6th Ed. p.184.

The passage in Halsbury's 3rd Ed. Vol. 24 para. 283 which I think Counsel wanted to refer me to is: "No lien arises until the work has been completed, but if completion is prevented by the owner the lien arises for the work actually done. If the owner defaults on his contract the workman is entitled to complete his work and then claim his lien on the completed article."

Counsel for the Plaintiff has referred me to the following authorities - Chitty's Vol. 1 para.1141, Dilby v Barnsley 174 English Reports p. 377 for the proposition that -

"Where chattels are bailed to an artisan for the purpose of executing work upon them, at an agreed price, the bailor may reclaim chattel before such work is fully executed; and the bailee has only a lien upon them to the extent of what would be a fair price for so much of the work as has been actually executed."

I am also quoting from a passage in Chitty on Contract Vol .2 paragraphs 201 and 203:

"Where a chattel is bailed to the bailee in order that he may perform work upon it for reward, it is a bailment for hire of work and labour. The duty of the bailor to pay the agreed price, or a reasonable remuneration upon a quantum meruit, depends upon general principles of the law of contract.

Since the workman is to be remunerated he must perform the work in a workmanlike manner.

Where a workman is to be paid for work done on a chattel bailed to him he has at common law, after completion of the work, a lien on the chattel for the remuneration due to him.

If the bailor countermands his order for work before it is completed the workman has a lien for the work actually done."

Now as to findings of fact on the question of breach of contract. When the Plaintiff returned from Mexico the car was not ready. I accept the Plaintiff's evidence on this point. This is what he has to say: "On following day I went to Ovalo's to get car. Saw car. No work had been done."

I accept the Plaintiff's evidence that he visited the Defendant's workshop thereafter on a number of occasions and that nothing was being done to his car. Then some work was done on it. Eventually, the Plaintiff wrote a letter which has been exhibited in this case. It reads:

"Mr. Salvador Ovalo

Dear Sir,

I am very sorry about the present situation that has developed between you and I. In relation to arrangement made between us in respect of the repairs of my automobile plate # 3441.

In the month of November 1978 I personally handed you my automobile for you to do a general repair. You promised to deliver it back to me fifteen days later. I then gave you an advance of $200.00, seven days later you got $100.00 more from my daughter which amounted to the total of $300.00. Balance $450.00.

Today 30th January, 1979 you are inconsistent by not repairing and delivering my automobile which has caused me a lot of inconveniences and loss of moneys. I have visited your workshop and have observed my automobile deteriorating more each day.

Therefore to make sure I recover my money and expenses involved, also my property my automobile, I hereby inform you through this media that if in seven days from this 30th January, 1979 you don't deliver my automobile I will instruct a lawyer to take legal action against you before a court of justice.

I am sorry that I have to take this course but your negligence and decadent principles oblige me to do so."

Time was here made of the essence of the contract due to the behaviour of the Defendant.

When the Plaintiff wrote this letter the Defendant was already in breach of contract, in not proceeding to execute the repairs diligently and expeditiously as he had undertaken. The fact that the Plaintiff refused to give more money or to hand over the new windshield does not help him at all. He was already in breach of contract, and I so find.

About three weeks after the letter exhibited was written the Plaintiff once more went to the Defendant's workshop. This is what the Plaintiff has to say, which I accept: "I asked the Defendant to let me have key to car, and battery so to take car with me. Refused to give me keys, adding that no one can touch car. I have not received car to this day."

The Defendant's reply to all this is that the major work to the car had been done, and that the further delay was caused by the Plaintiff's refusal to hand over the new windshield to be fitted. There had been a shortage of acetylene gas but the delay was not directly attributable to this, but to the fact that for a long time the car had been left untouched. It was only after a number of visits by the Plaintiff to the Defendant's workshop that some work was done on the car.

I find that the Defendant was in breach of contract and that the Plaintiff was justified in repudiating the contract as he did.

Can the Defendant successfully plead a lien? The answer to my mind is no. He is certainly not justified in claiming it on the basis that he had completed his work, because he had not. Neither is he entitled on the quantum meruit because, although the Plaintiff repudiated the contract, he never countermanded it before the breach by the Defendant. In fact, he gave him seven days to complete, which in the circumstances of the delay in this case was a reasonable period.

I therefore find for the Plaintiff. The damages claimed are not agreed. So I have to decide what amount of damages flow from the breach of contract.
There is no doubt that the Plaintiff is entitled to the return of money advanced: $300.

He is also entitled to the return of his car or its value. The evidence before me is that the car is a total wreck or worthless. I find that he is entitled to the value of the car $2,000, instead of the return of the car plus the loss of value. The Plaintiff is also claiming loss of profits as a grocer and loss of profit as a taxi proprietor for a period of 25 weeks. The evidence adduced does not justify the amount claimed in the Statement of Claim. It does justify an amount for the loss of the use of the car for that period, which I would estimate at $1,000 at the rate of $40 a week. Adding up the different figures it comes to a total of $3,300.

I give judgment for the Plaintiff in the amount of $3,300 with costs.

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