Beresford Cole v Mendekia (CIV APP 2 of 1973) [1974] SLCA 4 (29 October 1974)

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[1] Contract Law — Agency — Agency only created where intention to bring principal Sada else aaa Jean enor ae See ee wa orci terre ta manner: eee a mca ele de a a an ee Ret Bind ies gee

[4] Contract Law ~ Damages - General principles — Cost of completion — Time at which

Bi ee MRL cs ene See meee ti cr tees em pgp ce onal on ee eres cere Seer ee fogerty etnies heen ppm yteroer ieee deg es SC eC es Seen eee Fas lon apabeeeig Rie harman (A, | pipeline Pelee sacha ee Se eee : Tae ace ee eet hep pe ea to his relationship with the respondent for at no time was a third party in existence or | ie ere ee pln ly Ty a | “agent inthe document dd at change theme of that relatos.

3 ‘Siea Leone Bar Assxition La Reports [197482] SLBALR. |

3. The essential elements of a receipt are that it is an acknowledgement, its in writing and it is a mere admission of a fact that money or some other form of valuable has been received. Nothing further was required. The document was not a mere acknowledgement ‘of money received, but made provisions as tothe fulfillment by the appellant of specific ‘obligations and also created binding legal duties for the respondent, his heir and

4, To be a gond contract there must be a concluded bargain. All the indices leading to a ‘concluded bargain were embodied in Exhibit ‘C°. The failure ofthe appellant to complete the building by 2 July 1969 (ie, the extended period) constituted a breach of contact. ‘Scammell v Quston (1941) 1 All ER 14 and Huaion v Watling (1948) 1 Ch 398 applied.

5. The applicable principle as to the measure of damages was to assess what it cost the respondent 10 complete the building substantially as it was originally intended, less any ‘amount that would have been due and payable tothe appellant had the appellant completed the building at the time agreed by the terms of the contract. Mertens v Home Freeholds Company Limited (1921)2 KB 526 applied.

Cases referred to

British Westinghouse Electric and Manufacturing Company Limited v Underground Electric

‘Rys Company of London Limited (1912) AC 689

(Caddick v Skidmore (1857) 44 E K 907

‘Charles Richards v Oppenhaim (1950) 1KB 616 CA.

(Crawford v Toogood (1879) 13 CoD 153

Davies Contractors Limited v Fareham UDC (1956) AC 696

Falck v Williams (1900) AC 176

H. Dakin & Co Limited v Lee (1916) 1 KB 566

Havkins v Rogers (1951)85

1. TR 128

Hariley v Hymans (1920) 3 KB 475

Hutton v Wailing (1948) 1 Ch 398

Jones v St John’s College, Orford (1870)LR 6 QB 115

‘Lee v Alexander (1883)8 App Cas 853

‘May & Butcher, Limited v R, reported in a note to Foley v Classique Coaches Limited

‘Mertens v Home Freeholds Company Limited (1921) 2 KB 526

‘Nathaniel Stuart Chalmers v Lawrence Pardoe (1963) 1 WLR 677

enn v Simmonds (1971) 1 WLR 1381

Philips v Ward (1956) LAWLER 874

Rv Boardman 2 Moore & R147

RyMartin? C&P 549

‘Scammell v Ouston (1941) 1 AILER 14

‘Skife v Jackson (1824) 3 B & C421

‘Spawforth v Alexander 2 Espinasse 621

‘Throckmerton v Tracey 15 ER 22

Wilson v Short (1848) 6 Hare 366

Legislation referred to,

‘Statute of Frauds 1677 54

Other sources referred to

Halsburys Laws of England 3° Edition, Vol 1, paras 350, 351, Vol 3, para 843

Jowit's Dictionary of English Law

‘Stroud's Judicial Dictionary, Volume 1V, 4 edition, p 2278

Webster's New World Dictionary

(19421 SUBALR Sent Cole v Menishn u

Appeal ‘This was an apeal by the defendant aginst the judgement ofthe Court of Appeal which allowed the plan's apeal again the judgement ofthe High Court dismissing a claim for ‘damages for breach of contact. The facts appear suficetlin he following judgment of Bets Pi Dr WA Marcus Jones forthe appellant Mr G Gelage-King forthe respondent. BETTS PJ: On the 13 October 1970, the plaintiff, Suhr Mendekia, (whom I hereinafter refer tos the respond isued a Writ of Summons accompanied bya Statement of Claim against George Beresford Col, (whom I shall hereinaier refer toa the appellant), for beach of a written contract dated 3" December 1968. The written contract provided, inter alia, that the sppellan would const a twostreyed building of fourself contained las forthe sum of [124,000 (went-four tesa lcnes within a maim prio of six (6) months, thai 0 say by June 1969. The respondent paid the appellant an advance of Lel4,000 (furcen thousand Jeones), and agreed to pay the balance on or before the 28" February 1969. As a ‘mater of fact. the balance of Le10,000 (ten thousand leones) was paid on the 16" December 1968. After the expiration according to the respondent's evidence, the appellant asked for one ‘more month to complete the building that is to say, by July 1969. The respondent said he scceped. The building however was il incomplete athe endo aly 1968

Litigation stated by 2 writ of summons which was fled on the 13* Oxtober 1970, followed bya statement of claim. The appellant fled a satement of defence and counterclaim ‘on the 28* April 1971. By leave of the Court, an amended statement of claim was delivered and filed on the 3" of November 1971. The respondent claimed damages — general and special — for breach of contract. The action was tad by Ken During J (ashe then was) who gave judgment ‘om the 10" Apri, 1972 damissng bth the respondent’ claim andthe appellant's cour ‘claim. The respondent appealed agains that judgment andthe Cou of Appl (Percy R Davies JA, OB R Tejan JA and Rowland Harding J) allowed the appeal on the 11" July 1973, and coniered the appellant pay the respondent Lel4.085 (fourteen thousand and cighty-five leomes) as general damages: Le$00 (five hundred leones) as special damages and costs of the | action inthe High Court and the Court of Appeal

‘Te preset appeals against the judgment ofthe Cour of Appeal and the following issues were raised) wat the appellant a gratatous agent ofthe respondent? (b) was Exhibat Ba Contact ora receipt? (6) fs was a conrac, was thee a reach of? (8) was the respondent entitled tothe damages he was awarded orto any damages tal?

Ici be useful at this stage ost out Exhibit ‘Cit relaes sical othe answers tobe given othe sss ase.

EXHIBI'C

Received the sum of Le 4000 (fourteen thousand leones) from Sehr Lebbie Mendeki

sg farmer of 27 Yaad Road, Koida Town, Kono Disrit.n the Eastem Province of

Sia Leone, being prt payment of the sum of Le24000 (went-four thousand ones)

forthe cox of constriction of Two Storeyed Buldng with Boys’ Quarter and Car Por

on 1.907 acres of lad sted off Kissy Bye Pass Rod, Kissy Village as mor flly

desenbed and delineated o the Director of Surveys and Lands Pan LS 10706 dated 28

November, 1968 to be bul and constuced withthe best labour and materials availble

within a maximum period of (6) six exlewar months from the dat heron: the said

Suctures to contain the following

8 ‘Sia Leone Bar Association Law Reps (1976-6211 SUBALR

‘Two-storeyed building: 4 (our) self-contained semi-detached flats:

Ground Floor: Flat No 1 — Lounge cum dining room, two bedrooms, one bath and water

lose, estimated unit cost Led.400.0.

Flat No 2 ~ Lounge cum dining room, three bedrooms, one bath and water closet, kitchen,

estimated unit cost — 126,600.00.

Finst Floor: Flat No 3 ~ Lounge cum dining room, two bedrooms, one bath and water

closet, kitchen estimated unit cost - Le4 400.00.

Flat No 4: Lounge cum dining room, thee bedrooms. One bath and water closet, kitchen,

estimated unit cost — 26,000.00.

‘Boys’ quarters and car por: Boys’ quarters-two bedrooms, one water closet and shower.

(Car pont: covered accommodation forfour cars, Estimated unit cost ~Le2,200.00.

Exigencies - 800.00

TOTAL COST — Le24,000.00

1, Sahr Lebbie Mendekia aforesaid for myself my heirs and Successors intitle do hereby

contract and agree with my agent, George Beresford Cole, Real Estate Agent, of 23

Liverpool Street, Freetown, Sierra Leone, to pay to him the balance of Le10.00.00 (ten

thousand leones) in full on or before the 28" February, 1969 for the fulfillment of the

purposes hereinbefore contained,

Dated in Freetown tis 3 day of December, 1968.

(Set) George Beresford Cole Real Estate Agent,

Read over and fully explained to Sahr Lebbie Menedkia by Kai Mossay No 27 Yaradu

Road, Koidu, TRADER. When he, Shar Lebbie Mendekia seemed perfectly to understand

the same before insribing his mark and/or thumbprint hereon.

(Sed) R.T.P. ‘Sahr Lebbie Mendekia.

Having set out Exhibit ‘C° I propose to construe it to determine whether its intention was to appoint the appellant as an agent or to create an agency. If one or the other kind of ‘lationship can be ascribed to the document as a result ofthe construction, then that i the end. ‘ofthe mater, in regard tothe agent or agency excluding other incidents.

Buc if not, Exhibit ‘C° wil be subject to futher construction to determine if tis a contract ‘or a receipt. It is accepted that the word ‘agent’ is capable of being used in a number of ways: ‘and in these proceedings it was sought to use it by the appellant's counsel as a conduit pipe merely to effect the transportation of the terms of agreement between the respondent and some ‘other third pany. Halsbury's 3" Edition, Volume I at page 146 and paragraph 351. states that an agent has been defined as a “person primarily employed for the purpose of placing the principal in contractual or cther relations with a third party and it is essential to an agency of this ‘character that third party should be in existence or contemplated”. Wilson v Short (1848) 6 Hare 366, refers.

‘There are other definitions but that isthe one relevant 10 our present purpose. It may however be neces-ary t0 refer to the distinction between the conduct and exercise of the functions of an in “sendent contractor and an agent. The distinction between an independent contractor and ant is clearly stated in Halsbury’s 3% edition at page 146, paragraph 350

The pages read for this report end here. The judgment continues in the PDF.