Samuel Scott Champion Custom Brokers et Al v Gladpole Simpson

• Jurisdiction: Jamaica
• Judge: DOWNER. J.A.: , PANTON, J.A.: , SMITH. J.A:
• Judgment Date: 30 July 2004
• Neutral Citation: JM 2004 CA 30
• Judgment citation (vLex): [2004] 7 JJC 3003
• Court: Court of Appeal (Jamaica)
• Date: 30 July 2004

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE DOWNER, J.A THE HON. MR. JUSTICE PANTON, J.A THE HON. MR. JUSTICE SMITH J.A

BETWEEN

SAMUEL SCOTT

1 ^ST DEFENDANT/APPELLANT

AND

CHAMPION CUSTOM BROKERS

2 ^ND DEFENDANT/APPELLANT

AND

CHAMPION INDUSTRIES EQUIPMENT AND SUPPLIES LTD.

3 ^RD DEFENDANT/APPELLANT

AND

GLADPOLE SIMPSON

PLAINTIFF/RESPONDENT

Alexander Williams

Carol Davis

CONTRACT - Sale of goods - Partly oral/Partly written contract - Recovery of price of goods sold and delivered but not paid for - Privity of contract - Discrepancies and inconsistencies in evidence

DOWNER. J.A.:

1 I agree with my brother Smith, J.A. that the appeal should be dismissed and the costs of the appeal should go to the respondent.

2 The learned judge set out his findings of fact at pages 57–58 of the Record and this was adequate in the circumstances of this case where the crucial decision depended on the evaluation of the letter of 23 ^rd September, 1988. Reid J found that it was not the full picture as it was written before the second and third shipments were delivered in Jamaica. In these circumstances he made findings of fact favourable to the respondent based on the oral evidence adduced by both parties.

3 The other important finding, implicit in the learned judge's summary of findings was that the contract which was partly written and partly oral was between the respondent Simpson and Scott and his two companies. Once these findings were made in the Court below, then Benmax v Austin Motor Co. Ltd. [1955] 1 All ER 326; Industrial Chemical Co. Jamaica Ltd. v. Owen Ellis [1986] 23 JLR 35 were rightly cited to show that the findings of fact found below, ought not to be disturbed. It is for these reasons together with those admirably set out by Smith JA, that the appeal should be dismissed.

PANTON, J.A.:

4 I agree.

SMITH. J.A:

5 The first appellant, Mr. Samuel Scott is a custom broker and the managing director of the second and third appellants. The second and third appellants are limited liability companies registered under the Companies Act.

6 The respondent, Mr. Gladpole Simpson is in the business of importing and exporting and is apparently the "alter ego" of Sunlite Export Trading Company which is registered in the United States of America and owned by him.

7 By Writ dated 19 ^th August, 1991, the plaintiff/respondent brought an action against the defendants/appellants to recover the price of goods sold and delivered.

8 On the 17 ^th November, 2000, Reid J gave judgment for the plaintiff in the sum of US$46,551.73 with interest at 15% per annum. The defendants have appealed to this Court on the basis of the following grounds:

• "1. That the learned trial judge failed to appreciate the weight of the evidence before him generally, and, particularly the effect of exhibit 1F being letter dated 23 ^rd September, 1988.

• 2. That the learned trial judge misdirected himself on the law, particularly that of privity of contract in holding or impliedly holding that the three defendants/appellants were liable to the plaintiff.

• 3. That the learned trial judge failed to appreciate that on the totality of the evidence as to the contracting parties, only 3 ^rd defendant/appellant could possibly be liable to the plaintiff/respondent.

• 4. That the learned trial judge, in coming to his decision, failed to appreciate the material discrepancies and inconsistencies in the plaintiff's/respondent's case.

• 5. That the learned trial judge erred in law in allowing into evidence. Exhibits 4A,4B,4C,5A, 5B,and 6 in that:

  • (i)} the said exhibits were purportedly copies of documents and were therefore not primary evidence of their contents;

  • (ii) the plaintiff/respondent failed to account for the absence at trial of the originals and had failed to serve the defendants/appellants with a notice to produce the originals of the exhibits.

• 6. That the learned trial judge gave no reason for his decision."

9

10 According to the plaintiff/respondent, he knew the second defendant/appellant as a customs broker who had on some previous occasions acted as such on his behalf. Thereafter, they developed a friendly and business relationship. In September, 1988, the plaintiff/respondent entered into an agreement partly written and partly oral with the first appellant and his companies, the second and third appellants, whereby he would supply them with tyres and PVC pipes and they would pay him the CIF value of the goods plus 15% mark up. It was also agreed that the first appellant would clear the goods. Pursuant to this agreement the respondent bought goods in the United States of America and consigned them to various companies based on instructions given by the first appellant. Many shipments of goods were made under this agreement.

11 It is the plaintiff/respondent's evidence that two-thirds of a shipment of two flatbeds of PVC pipes were returned at his expense because the pipes did not fit the specification. Some eleven exhibits were tendered in evidence by the plaintiff/respondent. These were delivery slips, bills of lading, invoices, import entries, agreed schedule of payments, agreed schedule of shipments, customs entry export forms, etc.

12 The plaintiff/respondent's evidence indicates that the cost of the goods sold and delivered pursuant to the agreement amounted to US$97,898.00 (the amount claimed in his Statement of Claim). The plaintiff/respondent testified that he received payments totalling J$270,000.00 or US$43,116.42 (calculated at the then exchange rate of US$1.00 =J$5.80).

13 In his Statement of Claim the plaintiff/respondent included a claim for $53,500 in respect of generators sold and delivered to the appellants. This claim was however abandoned at trial as according to the plaintiff/respondent, after the Writ was filed, part payments were made and some of the generators were returned.

14 Thus the plaintiff/respondent's claim, as was supported by his evidence, was for US$97,898.00 plus 15% mark-up making a total of US$112,582.70. It is not in dispute that the plaintiff/respondent credited the appellants with US$22,914.00 in respect of the PVC pipes which were of poor quality. This credit leaves a balance of US$89,668.70. From this amount must be subtracted the amount of US$43,116.42 which the plaintiff/respondent admitted was paid by the appellants. In the end the plaintiff/respondent's claim as substantiated by his evidence was for US$46,552.28.

15

16 Mr. Scott, the first appellant gave evidence for the Defence. The first and second appellants denied liability on the ground that they were not parties to the contract. The third defendant/appellant claimed that its liability for the pipes and tyres was $270,000 and that this amount had been paid in full.

17 In his evidence the first defendant/appellant stated that he was a customs house broker and the managing director of the second and third appellants. He knows the plaintiff/respondent and a company called "Sunlite Export Trading Corporation." He testified that in September, 1988, he, representing the third defendant/appellant, entered into an arrangement with Sunlite Export Trading Company concerning the importation of motor vehicle tyres and PVC pipes. According to the first defendant/appellant:

"Mr. Simpson (plaintiff/respondent) and I sat down and...