Supreme Court
Action No. 44 of 1997
10th April, 2000
Shanks, J.

Ms. Samira Musa for the Plaintiff
Mr. Rodwell Williams, S.C. for the Defendant

J U D G M E N T

Contract - Breach of contract - Defective Goods - Goods allegedly collected by Defendant's Agent - Defendant still liable to pay for the goods.

1. This action was brought to recover U.S. $25,135.00 allegedly due under seven invoices for goods sold and delivered over the period October, 1995 to July, 1996. By the time of trial only the first two of those invoices were still in issue, namely No. 2680 for $7,739 U.S. dated 9th October, 1995 and No. 2688 for $3,774 U.S. dated 24th October, 1995.

   INVOICE 2680

2. Invoice 2680 is for a quantity of plastic bottles. The Defendant's Managing Director (Mrs. Molina) told me that she received these bottles but that the bottles had a strong smell of paint and were therefore unfit for their purpose and that customers returned them. She said she made oral and written complaints and that she spoke to the Defendant's Mr. Arturo Vielman who came to Belize from Guatemala and looked at them and accepted that they could not be used for water. He would not agree to take them back until he had returned to Guatemala but, she said, he later told her to throw away or burn the bottles. She said that there were still a large number of bottles in her warehouse and that she still had some that customers had returned. She did not know if she had them all but she still had many.

3. The Plaintiff's Mr. Jorge Miralbes told me that there had indeed been a complaint and a sample of the bottles had been returned to Guatemala. The lab there had tested them and said they were fine. Unfortunately this evidence was pure hearsay and there was no written report to substantiate it. He also produced in Court a bottle which he said came from this consignment which had been found in a local market containing vinegar, but he was not able to demonstrate that this bottle came from the consignment in question. It was not in dispute that a discount had been offered in respect of the consignment for whatever reason; the Defendant told me there was a written offer to accept half price.

4. Although the Plaintiff's attempt to answer this complaint therefore wholly failed for lack of proper evidence, the onus still remained on the Defendant to show that the goods were indeed unfit for their purpose and that they had been rejected. Although it would have been simple enough to bring detailed evidence to substantiate the complaint (like one or more of the bottles) and to show exactly how many bottles had been sold on to customers, how many had been returned and how many were still in the warehouse and to bring some documents to substantiate the complaints by customers and by the Defendant, none of this was done. I am left with some unsatisfactory and vague evidence that some bottles smelt of paint and some bottles were returned by customers. In the circumstances I am not prepared to assume in the Defendant's favour that the whole consignment was unusable and in fact unused or that it was all rejected. I have no material to help me decide the true position save that the Plaintiff apparently offered a 50% discount. Though it is a very "rough and ready" way to proceed, I therefore think substantial justice will be done if I simply say that the Plaintiff is entitled to recover half its claim on invoice 2680, or U.S. $3,869.

   INVOICE 2688

5. Although it was implicitly accepted that the Defendant had ordered the goods listed in invoice 2688 it was Mrs. Molina's evidence that they had never been received by the Defendant. Although she said she thought she raised this complaint in writing, again she produced no document to substantiate her complaint.

6. Mr. Miralbes gave evidence that under their contractual arrangements it was for the Defendant to collect the goods from the factory in Guatemala City. He produced a series of export documents which he said showed that the goods in question must have been made. Although he was not able to produce a document showing conclusively that the goods had been received by anyone acting for the Defendants he was adamant that they must have been picked up by one. Mrs. Molina's evidence was that the Plaintiffs were obliged to deliver the goods at the Belize/Guatemala border. I have no hesitation in preferring the evidence of Mr. Miralbes as to the contractual arrangements. He was a clear and careful witness as opposed to Mrs. Molina who was vague and appeared ready to say whatever came to her head; further, she accepted that she generally paid a shipping agent in Belize City freight charges which included charges payable to a Guatemalan transport company which brought goods from Guatemala City to the border.

7. Assuming the obligation was on the Defendants to collect the goods in Guatemala City, there are three possibilities consistent with the Defendant never having received the goods in Belize City: either the goods were collected by an agent for the Defendant and lost by the agent before they reached the border, or they were never collected and the Defendant is in breach of the obligation to collect the goods, or the Plaintiffs handed them over to the wrong person. I am satisfied on the balance of probabilities that it is more likely that the first or second of these possibilities actually occurred. In either of those cases, the Defendant is still obliged to pay for the goods specified in the invoice. I therefore find the Defendant liable to pay U.S. $3,774 in respect of invoice 2688.

8. There shall be judgment for the Plaintiffs for $7,643 and four and half years interest at 12%, making a total of $11,770.

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