Elias v George Sahely & Company (Barbados) Ltd

• Jurisdiction: Barbados
• Court: High Court (Barbados)
• Judge: Douglas C. J.
• Judgment Date: 23 July 1979
• Neutral Citation: BB 1979 HC 37
• Docket Number: No. 879 of 1975
• Date: 23 July 1979

High Court

Douglas, C.J.

No. 879 of 1975

Elias

and

George Sahely & Co. (Barbados) Ltd.

Mr. David Simmons and Mrs. B. Waldrond for the plaintiff.

Mr. J. S. B. Dear Q.C. and Miss Kentish for the defendant.

Contract - Building contract — Performance

Douglas C. J.

1 The plaintiff carries on a business in Swan Street, Bridgetown, known as Everybody's Store. The defendant company owns the building where his business is housed. The plaintiff has been renting this building since July, 1960.

2 In either 1963 or 1964 the plaintiff decided he would like to buy the building. He spoke to Miss Gwen Sahely, who is connected with the company. She asked $150,000.00. He agreed but the sale did not go through. Then $200,000 was asked and he refused to buy at that price.

3 Again in 1969 or early 1970 Miss Sahely telephoned from St. Kitts, she said she wanted $300, 000 for the property. The plaintiff went to St. Kitts where he saw Miss Gwen Sahely and Mrs. Gloria Redman, who was formerly Gloria Sahely. He spent the night at their home. He says that when he got there they wanted $335,000. He refused to buy at that figure and returned to Barbados.

4 On the 10 ^th of February, 1975 Mrs. Gloria Redman telephoned the plaintiff from St. Kitts and told him that she had discussed the matter with her sister and that they decided to sell for $390, 000. The Plaintiff said he would buy at that figure and asked her to tell her lawyers to call him.

5 The plaintiff's evidence is that Mr. Clyde Turney, the defendant company's lawyer, telephoned him that same day and asked him if he was buying the building at 19 Swan Street. The plaintiff informed hIM that he was. Mr. Turney asked if it was for $390,000 and the plaintiff said yes it was. Mr. Turney then, according to the plaintiff, asked him to send a cheque for $39, 000.

6 The plaintiff, that same day, went to the bank, raised a loan of $39,000 and arranged to borrow $250, 000 to be repaid in seven years. The plaintiff then took the manager's cheque for $39, 000 which he had obtained from the bank to his lawyer, Mr. Henry Forde. Mr. Forde spoke to Mr. Turney on the telephone and then wrote him the following letter -

“Dear Sirs,

Re: Purchase of freehold premises known as Everybody's Store at Swan Street, Bridgetown from your client, Sahely & Co. Ltd. by Fauzi Elias (trading as Everybody's Store) or his nominees

Further to our conversation of this morning, I now enclose a cheque for $39, 000.00 drawn on Canadian Imperial Bank of Commerce by Fauzi Elias trading as Everybody's Store and payable to you as stakeholder in respect of the sale and purchase of the freehold premises, fixtures and fittings known as Everybody's Store. It is understood that the purchase price is $390, 000.00 of which the sum of $39, 000.00 is paid as a deposit to be held by you as stakeholder pending completion of the contract for sale. As I have discussed over the telephone the usual terms will apply.

I should be pleased if you would forward the Agreement for Sale to be signed by my client and if the contract will be between your client and Fauzi Elias (trading as Everybody's Store) or his nominees.

Please acknowledge receipt of this letter and let me have your receipt for $39,000.00.”

7 Mr. Turney never acknowledged in writing the receipt of the letter but he did send his firm's receipt for the money. The receipt reads -

“$39,000.00 BARBADOS 10-2-1975

Received from Fauzi Elias the sum of Thirty nine thousand dollars and ——— cents being deposit on Property at Swan Street, B'town agreed to be sold by George Sahely & Co. B'dos Ltd to Fauzi Elias and/or his nominees.

R.G. Mandeville & Co.

Per E. Clarke.

8 Mr. Forde describes the background to the letter as follows –

“10 Feb. 1975 I saw Mr. Elias in my chambers. I had a conversation with him. As a result I spoke to Mr. Turney at R.G. Mandeville & Co.

I said to Mr. Turney on the telephone that I had my client Fauzi Elias with me and that he told me that Mr. Turney was acting for George Sahely and Co. Ltd and that he had bought the premises at 19 Swan Street from George Sahely and Co.

Mr. Turney confirmed that he was acting for George Sahely & Co. Ltd. He said he had already spoken to Mr. Elias himself. I told him I had a manager's cheque for $39, 000 from the Canadian Imperial Bank of Commerce and that the understanding was the price was $390, 000. I told him I would be sending over the cheque with a covering note.

I sent over the cheque and a letter. I told him I would want a receipt ……

When Mr. Turney and I spoke, I said that it is my understanding that the usual terms would apply. He confirmed that was so and we discussed specifically that his client would bear ¹/₂ stamp duty, transfer tax would be paid by his client, marketable title would be given.

He said that that was his understanding.

Mr. Turney raised with me, he recalled to my memory, the fixtures in the premises that did not belong to Mr. Elias. He said it was his understanding that they were selling the premises ‘as is’.

We went on to discuss how soon the matter could be completed. He said it would take some time. I told him that my client was borrowing money from the Canadian Imperial Bank of Commerce and I needed some evidence to send to them. They were pressing for the title deeds. I told him I would send a copy of my letter and a copy of the receipt to the Canadian Imperial Bank of Commerce. I said that until all the conveyancing work was done it would be useful to send one of his standard form agreements which I would have signed and sent to the Canadian Imperial Bank of Commerce in addition to the other two documents I was sending.”

9 Mr. Turney's recollection of the events leading up to the letter of the 10 ^th of February, 1975 and the receipt issued by his firm is entirely difficult. In his evidence Mr. Turney says –

“In 1975 I was contacted by Mr. Henry Forde January or February. He said a client of his was purchasing Everybody's Store from Sahely's.

I told him I had no instructions on that point and that I would have to refer the matter to my clients. One is resident in St. Kitts. The other is resident in Barbados. I referred the matter.

Nothing else said as I remember. I don't recall the price being mentioned.

Terms and conditions of sale not discussed at all. As far as I recall, Mr. Forde did not mention usual terms and conditions. No question of any standard form of contract was mentioned.

[Exhibit 1] This was on occasion of another conversation I had with Mr. Forde as a result of certain instructions received by me that letter is dated 10.2.75.

It was a telephone conversation.

I informed him that if his client wanted to make an offer to purchase he should do so in writing. He mentioned the figure his client was prepared to pay — $390, 000. I did not indicate if that sum was agreeable to my client.

No discussion on terms and conditions.

There was no mention of fixtures and fittings.

At end of second conversation no understanding as to where we had reached.

I received letter and a cheque. Receipt issued from my firm.

I communicated with my clients.

If terms were acceptable my next step would have been to prepare a contract for sale and send it along with title deeds to Mr. Forde. ……. No agreement for sale was ever prepared by me. The offer was not acceptable to my client.”

10 From the evidence it would appear that although, according to Mr. Turney, the offer was not acceptable to his client, he did not so inform Mr. Forde in writing and he did not return the plaintiff's deposit.

11 On the 28 ^th of May 1975, Mr. Forde wrote to Mr. Turney in these terms –

“Dear Sirs,

Re: Purchase of freehold premises known as Everybody's Store at Swan Street, Bridgetown from your client, Sahely's & Co. Ltd. by Fauzi Elias (trading as Everybody's Store) or his nominees.

I write with reference to the contract evidenced by a memorandum in writing as contained in a receipt dated the 10 ^th day of February 1975 for the purchase by my client, Fauzi Elias and/or his nominees, of No. 19 Swan Street, Bridgetown, from your client, George Sahely & Co. (Barbados) Limited of Bridgetown, Barbados of freehold property comprising the store No. 19 Swan Street, Bridgetown.

As attorney-at-law and agent for the purchaser, I hereby give you as attorneys-at-law and agents for the vendor, notice that the purchaser is ready and willing and hereby offers to complete the sale and purchase, to pay the balance of purchase money and to do or procure to be done all such acts deeds and things as may be reasonably required to complete the sale and purchase of the said property upon the vendor executing all necessary assurances and doing and procuring to be done all such acts deeds and things as may be reasonably required to be done and as provided by the said contract.

As attorney-at-law and agent as aforesaid, I hereby give you, as attorneys-at-law and agents as aforesaid, further notice that if this matter is not completed by the vendor on or before the 20 ^th day of July, 1975 (as to which time is hereby made of the essence) the purchaser will seek specific performance of the contract and will proceed to enforce his rights against the vendor as the purchaser may be advised.”

12 This letter produced no reply from Mr. Turney nor any other result, although there appears to have been some further discussion between the parties. Mr. Forde's evidence is -

“I said I understood that his client and my client had had a further conversation and in order to get the matter settled as the parties were friends, my client had indicated that he would bear the transfer tax. I pointed out that this is without prejudice to existing or future rights of action. In that case, Turney's client would bear the stamp duty.

I recall telling Mr. Turney, “Write your client and let me know what was happening.”

13 Mr. Turney wrote his client on the 18 ^th of July, 1975 and sent a carbon...