Supreme Court
Action No. 473 of 1996
15th March, 2000
Shanks, J.

Mr. Leo Bradley for the Plaintiff
Mr. Dylan Barrow for the Defendant

Distribution Agreement - Debt due by virtue of Agreement - Termination of Agreement.

J U D G M E N T

1. This is a claim for $13,174.80 for the supply of soft drinks by Pebco to a distributor in the Orange Walk District, Mr. Carballo, in the period up to July 1994. The Defence states that only $7,282 is due and outstanding and counterclaims for a failure to pay agreed costs of $11,940 for repair and fuel costs for a van provided under the distribution agreement and for damages for premature termination of the distributorship.

2. Pebco called the company accountant Mr. Acosta to prove the debt of $13,174.80. He produced the accounts receivable ledger for Mr. Carballo which showed various charges and credits from 17 September, 1993 to 27 July, 1994 ending with a balance of $13,174.80. In the particulars of the claim set out in the Writ, the sum of $13,174.80 was said to be made up of amounts due under seven specific invoices. Mr. Carballo produced receipts issued by Pebco in respect of two of those invoices, which, after credit is given in respect of them, leaves only $7,622. Mr. Bradley for Pebco sought leave at the end of the trial to amend the particulars of the claim so as simply to claim an amount due on a running account rather than by reference to specific invoices. Mr. Dylan Barrow for the Defendant resisted this amendment on the basis that Mr. Carballo had pleaded his Defence and came to court ready to deal with certain specific invoices. Had he been warned that the claim arose on a running account he might have taken steps to check the whole account to see if he agreed with the final figure. I think Mr. Barrow is right to say that his client would therefore suffer irremediable prejudice if I were to allow an amendment and I therefore refuse Mr. Bradley's application. It follows that Pebco have established a sum due in these proceedings of only $7,622.

3. I turn to the counterclaim. It was common ground that at the outset of his distributorship Mr. Carballo was provided with a rather old van by Pebco. Mr. Carballo told me that in discussions with Pebco's then manager, Gustavo Perera, in 1993 Mr. Perera had said that he would in due course be provided with a smart truck and that in the meantime Pebco would pay for repairs, servicing and fuel for the van. Mr. Perera gave evidence to the effect that he thought the distribution agreement with Mr. Carballo would have been in writing (unfortunately, the Plaintiff was not able to produce a written agreement) but that it would only have covered some rural areas of Orange Walk District; he accepted that a vehicle was made available for the purposes of the distribution and that Pebco had committed themselves to provide some support for major work on the vehicle; but he thought that running and fuel costs would have to be borne by Mr. Carballo himself. Although Mr. Perera's evidence was somewhat tentative, I am afraid that Mr. Carballo did not persuade me on the balance of probabilities that there was ever an agreement to pay for fuel or routine maintenance or repairs. I reach this view for the following reasons:

   (1) although both witnesses appeared entirely honest and, as I say, he was somewhat tentative, I think Mr. Perera was the more businesslike and had a better memory for the commercial details;

   (2) I find it somewhat unlikely that Pebco would have given an open-ended commitment to pay for all the fuel used by one of their distributors;

   (3) at no stage before his counterclaim was brought in November 1996 did Mr. Carballo make any claim for these expenses.

I therefore reject the counterclaim for $11,940.09. Although it was accepted that Pebco had agreed to pay something towards major work on the van, the only major work which Mr. Carballo told me about (the repair of the van's transmission) was apparently done by himself and his son and he did not give evidence as to what the $2,053 claimed in respect of repair expenses related to.

4. I turn to the damages claim. It was Mr. Carballo's evidence in relation to this that at some time in 1995 after his credit with Pebco had been cut off and the van had been repossessed but when he was still buying (on a C.O.D. basis) soft drinks from them, Mr. Perera said to him that if he built a satisfactory warehouse he would be given an exclusive distributorship for the whole Orange Walk District and that he agreed to do this on the basis that he would then have no competition in the area. Mr. Carballo said that on the strength of this he borrowed $10,000 from the Belize Bank in June 1995 and then constructed a warehouse 24 x 30 feet in size. Although he asked for his distributorship agreement Mr. Perera had left by then and a Mr. Gonzalez was given the Orange Walk exclusive distributorship. Mr. Perera accepted that there were discussions about a warehouse and the possibility of an exclusive distributorship but said that no commitment was made. Even on the basis of Mr. Carballo's evidence alone I do not think there was a sufficiently firm or certain agreement for those facts to give rise to any kind of damages claim. In any event, I was given no evidence as to the terms of a possible exclusive distributorship agreement or as to the damage which Mr. Carballo might have suffered in consequence of not being given such an agreement. I should also say that no claim was put forward for any damages based on a failure to give notice of termination of the existing distributorship. I therefore also reject Mr. Carballo's claim for damages.

5. There shall be judgment for the Plaintiff for $7,622 with interest at 12% from July 1994.

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