Burnup & Sims (Barbados) Ltd v Smith et Al

• Jurisdiction: Barbados
• Court: High Court (Barbados)
• Judge: Sir William Douglas, C.J.
• Judgment Date: 23 December 1976
• Neutral Citation: BB 1976 HC 29
• Docket Number: No. 153 of 1973
• Date: 23 December 1976

High Court

Douglas, C.J.

No. 153 of 1973

Burnup & Sims (Barbados) Ltd.

and

Smith et al

Appearances:

Mr. J.S.B. Dear, Q.C. and R.G. Mandeville & Co. for plaintiffs

Mr. H. de B. Forde and Mr. V.O. Smith for first defendant

Mr. W.H.A. Hanschell, Q.C. and Mr. Peter Williams for second defendant

Contract - Supply of services on building sites — Outstanding amounts owed.

Sir William Douglas, C.J.

1 The plaintiffs are suppliers of concrete and provide ancillary services at building sites. On the 24th of April, 1973, they took out a writ claiming the sum of $10,246.99 from the first defendant (hereinafter referred to as “the contractor”) in respect of the supply and delivery of premixed concrete to a site at Roebuck Street in the city of Bridgetown. By his defence, the contractor alleged that any materials delivered to him during the months of May, June, July and up to the 21st August, 1972, had been fully paid for, that save for these materials, no materials had been sold to him, further that if other materials were delivered by the plaintiffs to him, those materials were for and on behalf or on account of Mr. Hubert Dowell, (hereinafter for convenience, referred to as “the owner”). In the alternative the contractor pleads that if he ordered materials other than those delivered to him up to the 21st of August, 1972, then those materials were ordered for and on behalf of and on account of the owner.

2 In consequence of this defence the plaintiffs obtained leave to join the owner as second defendant and filed an amended statement of claim seeking to recover against the contractor for materials supplied to him at his request and in the alternative, against the owner for materials supplied to the contractor as agent of the owner at the contractor's and owner's request. In his defence the owner denied that materials had been supplied to the contractor as his agent as alleged.

3 The plaintiffs' managing director, Mr. Garrett, says in evidence that he learned in 1973 that there was an outstanding balance in his firm's books in the name of Mr. Dowell. He spoke to him and was told that it was the contractor's duty to settle the account. Mr. Garrett pointed out to him that all billings and statements were sent out in his name and at no time had he been informed either verbally or in writing that these bills were not to his account. He was referred to the owner's solicitor, Mr. Hutchinson, who had been paying the contractor the money to settle accounts. This latter told Mr. Garrett that the contractor had exceeded the contract price and that he had advised the owner to make no further payments on the project.

4 The plant supervisor of the plaintiff company, MR. Richards, recalls that Mr. Belle, an employee of the contractor telephoned him “on behalf of Mr. Smith for Mr. Dowell” and ordered concrete for the old Purity Bakery building. Mr. Harvey, another employee, explains the company's system of issuing delivery tickets, and the signing of acceptance notes for labour done on any site. Mrs. Lawless, who at the relevant period was employed in the plaintiff company's accounts department, gives evidence of various entries in the ledger, especially in respect of payments in the Dowel account.

5 From the evidence of these witnesses and from the documents produced by them it is clear to me that the plaintiffs supplied the building materials, equipment and labour for which they have sued and therefore they are entitled to recover the amount claimed, viz. the sum of $10,246.99. Indeed it should have been obvious from the beginning that the only issue in this case is which of the defendants is liable to pay it, or if both are liable, in what amounts.

6 The contractor's evidence is that in September, 1971 he arranged with the owner for the renovation of the old Purity Bakery building in Roebuck Street. The contractor's version of the arrangement is as follows:

“We went through the necessary arrangements and discussions, price, operations and so forth. I was to provide the necessary materials on the job and labour. I would provide these by payment through Mr. Dowell…

Mr. Dowell was kept informed. I visited Mr. Dowell's house every week from the time the job started. I would discuss the paysheets, materials coming in and progress of the job…

I told Mr. Dowell the order [for concrete] was placed He told me it was all right, that he made the necessary contact and arrangements so don't worry my head … sometimes Mr. Dowell's wife or children would bring down the monthly statements. Sometimes he would give them to me when I visited on Wednesdays or Thursdays…

We compiled our wages, costs of concrete, send any stones or anything on the job. If it came to X dollars, he would ring Mr. Hutchinson to issue me a cheque for the money for wages, concrete, etc. …

… Burnup & Sims would get receipt to Mr. Dowell and he would give me the official receipt he received from Burnup & Sims.”

7 It is in regard to building operations after the 21st of August, 1972 that there is entire disagreement between the defendants. The contractor says that up to roof level, he paid for the concrete with money obtained each week from the solicitors. When the roof stage was reached, he told the owner that he proposed to cast the roof in three stages. To this the owner replied...