United Dominions Corporation (east Caribbean) Ltd v Stewart

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: McShine, J.A.,Phillips, J.A.,Fraser, J.A.
• Judgment Date: 14 December 1967
• Neutral Citation: TT 1967 CA 132
• Docket Number: High Court Civil Appeal No. 23 of 1965
• Date: 14 December 1967

Court of Appeal

McShine, J.A.; Phillips, J.A.; Fraser, J.A.

High Court Civil Appeal No. 23 of 1965

United Dominions Corporation (east Caribbean) Limited

and

Stewart

Appearances:

E.H. Wells Q.C., with A.C. Thorne for the appellant.

Allan Alexander for the respondent.

Damages - Conversion and trespass to goods.

JUDGMENT OF THE COURT:

1 The respondent is a chauffeur. He plied his own motor car for hire on the Fyzabad Road. In January 1960, the price of the car, which was then new, was $4,863.62 with hire-purchase charges and $1 payable for the option to purchase made a total of $4,864.62. The respondent held acknowledgements for payments amounting to $4,863.92, a difference of .70 cents; but withal, on June 19, 1962, the car was seized by the appellant and subsequently sold. In an action for damages for trespass, wrongful detention and/or conversion the Court awarded damages for and conversion in the sum of $4,700 of which $500 was general. This appeal is against the whole judgment.

2 The facts are straightforward. Upon the motor car being delivered by Charles McEnearney & Co. Ltd. the respondent signed a hire-purchase agreement with the appellant on January 26, 1960 whereby he undertook to pay the balance of the hire-purchase price by 24 installments. The agreement did not stipulate how or where payments should be made but the date for paying the first installment was, March 1, 1960 and thereafter the first day of each month. When the agreement was signed an employee of Charles McEnearney & Co. Ltd., told the respondent that he should pay the installments to any branch of Barclays Bank; so, choosing to pay at the Siparia branch, hereinafter referred to as the Bank, the respondent made his first payment on February 17, shortly after he had received a Payment Book from the appellant. Thereafter the installments were regularly paid until January 4, 1961: sometimes by the respondent personally and at other times by his wife, Hilda Stewart. In that month, the respondent, having become ill, sought and obtained the appellant's permission to pay $72 per month instead of $142.88 during his illness. He did so for 4 months from February - May, and thereafter he again paid the agreed monthly installment of $142.88 until February 1, 1962 when the balance was paid in two installments; $100 on March 19, and $40.94 on April 2, 1962. Actually, the balance due should have been $140.64 and not $140.94 since the sum which was being paid by installments did not include the dollar payable for the option to purchase. Be that as it may, the respondent had paid a total of $3,429.42 to the Bank and, taking into account the further sum of $1,434.50 for which he received credit when the agreement was signed, he considered himself free from any further obligation.

3 About 3 p.m. on June 19, 1962 while driving on the Fyzabad Road with three passengers the respondent was stopped and told by an agent of the appellant that he owed $72 arrears. It was the second time that day the respondent had been stopped; but on this occasion he was shown a document supporting the allegation. The respondent protested. He insisted that he had paid in full. Nevertheless the car was straight-way repossessed. Two days later, while interviewing the appellant's secretary--accountant the respondent learned that its records showed only three of the four payments of $72 made between February - May 1961. When he visited the bank sometime after, he was told that the payment of $72 made by his wife on April 4, 1961, had been credited in error to Olds Discount Co., (T.C.C.) Ltd. and consequently never reached the appellant.

4 It is from this error, which appears to have been inadvertently made, that the unhappy situation in this case wholly stems. There was a time when the conventions of commercial practice might have clearly indicated to the parties involved what was the proper course to adopt; but standards seem to have changed and, perhaps as a result, no one seems willing to accept any part of the responsibility for this error. Frankly, it appears to me not to be of the slightest moment either to the bank or to the appellant whether the respondent loses the whole of his investment. I am reminded that the law must take its course. So let it. But in its practice and as well in its application it must never be forgotten that the ultimate objective of the law is justice; so that in administering the law it is as necessary to strive always to secure for each man his due as it is to take care to avoid its abuse for unconscionable conduct.

5 The real issue between the parties is whether the payment of $72 made on April 4, 1961 was a payment to the appellant under the hire-purchase agreement. The learned trial, judge held that the Bank was the collecting agent of the appellant and in that capacity received the sum of $72 as an installment of hire on its behalf but that in error the Bank credited the payment to the account of Olds Discount Co. (T.C.C.) Ltd. Two questions therefore fall to be considered. Firstly, whether the Bank was the appellant's agent to accept payment; and secondly, whether payment of the sum of $72 on April 4, 1961 was in fact made to the Bank on behalf of the appellant. Apart from these two questions it was submitted that whatsoever may have been the status of the Bank the respondent failed to prove actual payment of the $72 to the appellant and consequently was not entitled to succeed. It should be said at once however, that in the circumstances of this case proof of actual payment to the appellant and consequently was not entitled to succeed. It should be said at once however, that in the circumstances of this case proof of actual payment to the appellant is not necessary, if the respondent, upon whom the onus lies, can show that payment was made to authorised or ostensible agent of the appellant.

6 The appellant called no witnesses. The respondent's evidence disclosed that on the day the agreement was signed he said he would pay at Siparia branch after an employee of McEnearney's told him to pay the installments at any branch of Barclays Bank, Nothing turns on the information given by McEnearney's employee, but because the appellant gave no evidence about its relationship with Barclays Bank what was said by the respondent when the agreement was signed is relevant to the conduct of the parties thereafter. A Payment Book which was sent to the respondent by the appellant and received shortly after the agreement was signed provided inter alia for the payment of “installments into the Bank of Trinidad (Gordon, Grant) Ltd., Port of Spain, for credit of [appellant's] account, either direct or through any bank”. The respondent may have intended to choose payment into the Bank of Trinidad (Gordon, Grant) Ltd., for credit of the appellant's account through Barclays Bank Siparia; but, using the Payment Book which he was enjoined to produce to any Bank at the time of payment, he in fact never did so. Instead he tendered every installment to a branch of Barclays Bank to the credit of the appellant. Five such installments were paid between 1961-1962 to the San Fernando branch and twenty-one were paid to the Bank which not only accepted each such payment but in time facilitated its procedure by introducing a Barclays Bank paying-in slip with the appellant's name as the payee printed in bold type.

7 From the beginning, each installment was tendered with the Payment Book from which was torn a payment notice bearing the following words:–

“This notice must be sent with...