J.Q. Charles Ltd v William
| Jurisdiction | St Lucia |
| Judge | Bishop, P.J. (Ag.) |
| Judgment Date | 21 December 1965 |
| Neutral Citation | LC 1965 HC 9 |
| Date | 21 December 1965 |
| Docket Number | 57 of 1963 |
| Court | High Court (Saint Lucia) |
Supreme Court
Judge(s): Judges: Bishop, P.J. (Ag.)
57 of 1963
Floissac and Giraudy for the Plaintiff.
K.A.H. Foster for the Defendant
Contract
Debt — Plaintiff claimed the balance of $7,674.91 due on goods sold and delivered by the plaintiff to the defendants at the latter's request — Art. 305 of the Code of Civil Procedure considered — Court allowed a total of 28 days so that the charge slips might be calculated so that the amount of the judgment be known.
This suit was commenced by the solicitor for the Plaintiff who, on 1st July 1963 filed a praecipe for a writ of summons, accompanied by a declaration. In the declaration the plaintiff claimed the sum of seven thousand six hundred and seventy-four dollars and ninety-one cents as the balance due on the price of goods sold and delivered by the plaintiff to the defendant at the latter's request. The plaintiff also claimed interest on the said sum of money at the rate of 7% per annum from the 14th March, 1963 to the date of payment. The declaration also contained particulars of transactions during a period from September 1962 to March 1963. In support of his demand the plaintiff filed lists of exhibits, including a registered hypothecary obligation by the defendant in favour of the plaintiff to secure a debt up to a limit of $3,000.00.
Article 76 of the Code of Civil Procedure of St. Lucia 1957 states:-
“Every writ of summons, and every writ of capias or attachment, must be filed in the Registrar's office on or before the last day on which the defendant is therein summoned to appear.”
By this article, the plaintiff is required to file the writ of summons in the Registrar's office, and he should do so either on the last day on which the defendant is summoned to appear or before that date. In this case before me now, the defendant was required by the writ of summons served on him “to appear before Our said Supreme Court in the Town of Castries within eight days from the day of the service of this writ.” According to the bailiff's return of service the writ of summons was served on the 10th July, 1963 and by the provision of Article 76 of the Code of Civil Procedure of St. Lucia the writ of summons should then have been filed in the Registrar's office either on or before the expiration of the eighth day. In fact, the writ of summons itself showed that it was returned on the 22nd of November 1963 —about four months later.
Article 78 of the Code of Civil Procedure of St. Lucia 1957 states:-
“If the writ is not returned, as hereinabove provided, the defendant may obtain the benefit of a default against the plaintiff, and be discharged from the suit, with costs, upon filing the copy of the writ served upon him. Plaintiff may renew his action.”
Therefore, in this case the defendant was in the position where he could have filed the copy of the writ served on him by the sheriff's officer and benefit from the default on the part of the plaintiff. However, he did not do so. Through his solicitors he filed a defence in which he denied his indebtedness to the plaintiff company as alleged or at all.
In support of the Plaintiff's allegation six witness gave evidence, after which counsel for the defence submitted that there was no case to answer and he elected to stand on this submission.
J.Q. Charles managing director of the plaintiff Company explained to the Court that he and the defendant L.G. Williams made an agreement in December 1961 by which the defendant would be supplied with various groceries on credit. According to the witness —and his testimony on this is undisputed —the terms were, “I would allow him one third of the profit. I would supply him at wholesale price less one third of the profit. We agreed that he would return any taken from me which he could not sell. I would accept them and give him credit. He could make payments any time, —from time to time. I subsequently secured this agreement. I had him execute a mortgage.” This witness stated, and again this was not disputed by the cross-examination of counsel for the defendant, that it was nix., part of the agreement that the defendant should pay only for such goods as he may have signed for, and from the records of the business, the plaintiff was claiming from the defendant the sum of $7,674.91 for goods which were supplied to the defendant.
Under cross-examination the witness stated that he gave instructions that proper records should be kept of the defendant's account and he expressed the view that “my subordinates allowed the account to go too high. In so far as my subordinates allowed the account to be exceeded I am not satisfied.” It is not difficult on the facts that the obligation mentioned $3,000.00 and the plaintiff claimed more than twice that amount, to share the view that the defendant's account if it was in the amount of over $7,000.00 was allowed to go too high.
Witness Cornelius Robinson who was employed as a Supervisor of the Grocery stock from the year 1961 until July 1964 inclusive gave hip evidence on affirmation. He stated that during the years 1962 and 1963 he had supervised the delivery of goods to the defendant on some occasions, and he explained the system used by him. He said that when goods were delivered to the defendant, he —the witness —made appropriate entries immediately after the delivery in a charge book kept for the purpose of recording the transaction with the defendant. The entries were made in triplicate by means of carbon paper, and the original charge slip was handed to the defendant, the duplicate charge slip was filed in the wholesale department of the business, and the triplicate charge slip was left in the charge book. This witness explained in his own words that “all deliveries in my handwriting were made by me personally to the defendant personally. All deliveries by me had the defendant's signature with two exceptions.” The deliveries that were excepted were mentioned to the Court as those on the two charge slips numbered 2495 and 2496. The witness explained that on the 19th June 1962 the defendant was charged on charge slip numbered 2490 for 150 dozen-areated drinks, but the duplicate and triplicate charge slips indicated 50 dozen created and so, on 16th August 1962 an entry was made on charge slip numbered 2495 reading 100 dozen-areated. In the words of the witness “slip 2495 refers back to slip 2490 on 19.6.62. The duplicate and triplicate of 2490 appeared as 50 dozen and so I charged him on 2495 for 100 dozen.” Cornelius Robinson said that he was so satisfied because in his words —“the defendant. subsequently produced two notes bearing these items and signed by him, and I reproduced these items from his notes. The order slips were misplaced.”
The witness then told the Court that all the goods mentioned on the charge slips numbered 2458 —2461 inclusive and those mentioned on charge slips numbered 2468 to 2472 inclusive and those mentioned on charge slips numbered 2261 to 2263 inclusive ware delivered by him to the defendant and that each of these slips was signed by the defendant in the presence of this witness. So far as I can determine it was not suggested in cross-examination by counsel for the defence that these slips were not signed by the defendant or that the goods mentioned therein were not delivered to and received by the defendant.
This witness also explained that the defendant had returned goods to him and that he (the witness) had attended personally to the reception of the goods returned. He described the system which he used when the defendant returned goods to him. He said “whenever he returned goods to me I would note it in the book called the Credit Book. Goods returned to me personally are recorded and are on slips numbered 1912 to 1923 inclusive except for slip number 1918”. The witness was emphatic that, the entries were made in the Credit Book by him, and he explained that his signature appeared on credit slips numbered 1924 to 1926 inclusive but that these slips were actually made under his supervision by Peter Phillip, his assistant. Cross-examination of the witness did not dispute the statements made by the witness concerning credit slips numbered 1912 to 1913, but with regard to credit slip numbered 1924, the witness told counsel for Defendant that the slip was written by Peter Phillip but signed by him (the witness).
This witness was cross-examined about a conversation between himself and defendant which took place at Vieux-Fort. The witness explained that the conversation concerned the defendant's account with the plaintiff Company. He denied telling the defendant that he had heard that the plaintiff Company owed him —the defendant —$350.00. Indeed, the witness explained that he knew that the defendant owed the plaintiff Company because it was he who worked out what he called “extensions” or the values in the charge books. In reply to counsel, the witness said that he was aware of what is written at the bottom of a charge slip but (it was not) because of that, that he made the defendant sign the charge bills, As a matter of fact, at the bottom of the charge slips (or bills) is written “please check, sign underneath last item and return duplicate.” This would seem to me to be a directive for the clerk to follow when using the charge slip rather than instructions that the customer should follow. The witness told counsel for the defendant that whenever goods were delivered by him to the defendant, the defendant signed the charge slips, and he said “I do not know that the absence of the defendant's signature on the charge slip could lead to the defendant being charged for goods which he never received or for any other fraud”. This witness explained that he did not go to Vieux Fort specifically to see the defendant; in fact, he went to preach the Gospel and while there he spoke with...
To continue reading
Request your trial