Trotman v L. McLean

• Jurisdiction: Trinidad & Tobago
• Judge: Furness-Smith, P.,C.J. Trinidad,Tobago,Collymore, C.J.,Barbados,Worley, C.J.
• Judgment Date: 09 March 1948
• Neutral Citation: TT 1948 HC 3
• Docket Number: 8 of 1947
• Court: High Court (Trinidad and Tobago)
• Date: 09 March 1948

High Court

Furness-Smith, P. ( C.J. Trinidad And Tobago); Collymore, C.J.Barbados; Worley, C.J. British Guiana

8 of 1947

Trotman

and

L. McLean

Appeal - Question of fact — Findings of trial judge — Against weight of evidence — Reversed.

APPEAL by the defendant Benjamin Trotman from a judgment of the Supreme Court of Trinidad and Tobago awarding damages to the plaintiff Leopold McClean in an action for deceit and for return of money on a consideration which had failed.

Findings of trial judge on questions of fact reversed on the ground that they were against the weight of evidence and the probabilities of the case.

1 The judgment of the President was as follows:

2 In this case the plaintiff-respondent complained that by reason of certain false representations made to him by the defendant-appellant he was induced to sign articles of partnership (exhibit B) in the defendant's business and thereby suffered damage. He claimed damages for the deceit and, in addition, the recovery of the sum of $339.05 paid by him to the defendant as his share in the partnership undertaking. In the Court below he was successful in respect of each of these claims and was awarded the sum of $1,000 by way of damages for the deceit.

3 The proposed partnership consisted of the plaintiff, the defendant and one Hyndman, who was originally joined as a codefendant, but at the close of the plaintiff's case it was submitted that there was no case for him to answer, and the judge gave effect to that submission and dismissed him from the suit.

4 So far as is material to the claim for deceit, the case as presented by the plaintiff was as follows: After negotiations with the defendant McClean, in the course of which the plaintiff paid to McClean the sum of $339.05 for half of McClean's share in the business then being carried on by McClean and Hyndman, the three men met at the office of their solicitor Mr. E. B. Annisette on the morning of Saturday the 25th March 1944. There was some conflict of evidence as to this date, the plaintiff saying that it was the 23rd of March, but it is manifest from the record that it was in fact the 25th, and before this Court it was not contended that it was otherwise. The date is of little importance, especially having regard to the fact that the evidence was given some three years after the event, except in so far as it reflects on credibility of the witnesses. As will be seen, the fact that the 25th March was a Saturday has some bearing on that important issue.

5 After discussion with the parties the solicitor drafted instructions (exhibit B.T.1) for a partnership deed which the parties thereupon executed. In those instructions no express mention is made of existing book-debts due to the business or of existing liabilities due by the business. It is stated merely that the business and goodwill of the undertaking is being purchased by the three partners and, since the detailed accounts of the undertaking as exhibited at pages 117 to 121 of the record (exhibit B.2) were then in possession of the parties, the instructions must be taken to mean that the parties were taking over the undertaking as it then stood. The substantial issue of fact in this case is whether, after the signing of the instructions, a dispute occurred between the plaintiff and McClean and Hyndman on the subject of the existing book-debts and liabilities which occasioned a variation of the instructions. The evidence in regard to this issue will be discussed presently. The partners left the solicitor's office on the understanding that the solicitor would prepare a draft partnership agreement embodying the terms agreed upon. Some days later (the exact date is disputed) the draft agreement was presented to the plaintiff by McClean and the plaintiff signed it. The circumstances in which he says he signed it are wholly disputed by McClean, and there were no witnesses of the transaction other than the two parties concerned. The plaintiff says that, on leaving the solicitor's office on the day when the instructions were signed, McClean asked him to put an additional hundred dollars into the business, and he McClean would do the same. That on the following Saturday he went to McClean and told him that he would not put any more money into the business until the partnership agreement was signed. That McClean then produced the draft agreement which he had received from the solicitor and said “Don't be timid, this is a sketch I have taken on the wording of the agreement. Man, look at it here. Go and get the amount.” The plaintiff agreed, and was going off to his bank to get the money, when McClean called him back and handed him a pen on the stair-case saying, “Put your name here to safeguard your position.” That he then took the pen and signed his name to the draft without reading it, believing on the representation of McClean that it was only a draft of the partnership agreement and that it contained only the terms already agreed upon by the parties in the solicitor's office. That at that time the signatures of the other two partners had not been put on the draft, as they now appear over the signature of the plaintiff. That he, the plaintiff, then went off to the bank for the money but it was closed, and on returning to his workshop which was on the same premises as McClean's business he saw McClean holding a paper and laughing. That he asked what the paper was and McClean said, “It is our agreement.” That he, the plaintiff, then said, “How can that be our agreement when an hour and a half ago you made me sign a paper until the agreement came out?” That he then read the paper and said, “This paper say I don't share in the debts because it is the paper I signed as a sketch.” That McClean then told him that as his name was on it he would be held to it. That he saw McClean on the following Monday, and they then agreed to call the deal off, and McClean offered to give him a promissory note for the $339.05 which he had paid. That, realising that he was not going to get his money back, he initiated the present action.

6 I pause here to observe that the paper which the plaintiff says that he was induced by McClean's false representations to sign is in evidence (exhibit B) and, as it appears to me, is in fact a draft partnership agreement, or, as the plaintiff describes it, a ‘sketch’. If that be so, it is what the plaintiff says McClean represented it to be. The plaintiff complains that paragraphs 5 and 6, which exclude him from participation in the book-debts due to the business, are contrary to what was agreed upon in the solicitor's office. This is the substantial issue of fact to which I have already alluded.

7 McClean's version of the circumstances attending the signing of the draft agreement is as follows: He denies that any proposal was ever made by him that the plaintiff should put an additional hundred dollars into the business. He says that he received the draft agreement from the solicitor on the 28th March and handed it to the plaintiff the same day. That the plaintiff returned it to him signed on the 31st March without a word of complaint, and no such conversation as the plaintiff has described ever occurred between them. In regard to his denial that any proposal was made that the plaintiff should contribute an additional one hundred dollars to the business, it is to be observed that, if the plaintiff's story is true, it is difficult to believe that McClean would have disclosed his intention to hold the plaintiff to his signature on the draft agreement before that money was obtained.

8 In considering the probabilities respecting these two divergent accounts, it is important to understand what was the financial position of the business at that time as exhibited in the statement of accounts at pages 117 to 121 of the record (exhibit B 2). This account shows that the assets exceeded the liabilities by the sum of $39.99 only; that the book-debts due to the business amounted to $401.10; and that the loans due by the business (including an item of $200 due to the partner Hyndman) amounted to $349. It is to be noted, therefore, that, when the plaintiff complained to McClean that the draft which he had been induced to sign excluded him from participating in the book-debts, he was referring to the sum of $401.10, and that he omitted to remark that the draft excluded him also from liability for the loans amounting to $349 incurred under the written instructions which he signed in the solicitor's office. The effect, therefore, of clauses 5 and 6 of the draft agreement to which he takes exception is to exclude the plaintiff from any participation in the one-third interest which he would otherwise have had in the difference between these two amounts, that is to say, if all the book-debts were collected, one-third of $52.10. This seems a paltry sum to have made so much fuss about, especially when it is remembered that the plaintiff had already paid $339.05 for a third share in a business in which the assets exceeded the liabilities by $39.99 only. In this connection it is to be observed that, in the argument addressed to us by counsel for the respondents, it was represented that the excess of assets over liabilities was not $39.99 but $252. This error arose from a misunderstanding in treating the loan of $200 due to Hyndman as an asset, whereas in fact it was a liability, and is so represented in the statement of accounts (exhibit B 2) at page 118 of the record. The learned trial judge has fallen into the same error in his findings of fact at paragraph (c) on page 84 of the record.

9 I now come to consider the evidence as to what took place at the solicitor's office on the 25th March in regard to the terms of the agreement reached between the parties which the plaintiff asserts were incorrectly stated in the draft agreement which he was subsequently induced to sign by the false...