Jeet v Chotelal [1962] FJLawRp 48; [1962] 8 FLR 209 (31 August 1962)

(1962) 8 FLR 209.

SUPREME COURT OF FIJI

RARAM JEET

v.

CHOTELAL

EME COURT, 1962 (MacDuff C.J.), 21st June, 31st August]

]

Contract - unenforceable contract - moneys paid thereunder &#8o basis for finding of implied promise to repay – moneys irrecoverable – Indemnndemnity, Guarantee and Bailment Ordinance (Cap. 199) s 59 – Statute of Frauds (29 Car. 2, c.3) s.4.

Contract – consideration – contract unenforceable for lack of writing – moneys paid thereunder not recoverable on ground of failure of consideration.

The plaintiff paid the dent £534 in 4 in cash at the rate of £6 per month in consideration of an alleged agreement by the defendant to transfer to the plaintiff a one third interest in Crown Lease No. 920. Twas a note or memorandum idum in writing in relation to the alleged agreement and at the hearing counsel for the plaintiff abandoned his claim for specific perfce thereof, relying only upon an alternative claim for the the return of the money.

Held: The alleged contract being unenforceable the plaintiff could not recover the money paid under it on the ground of failure of consideration, or of impliomise to pay or on any other basis in law.

Cases referred to:

ChaprChaproniere v Lambert [1917] 2 Ch; 117 L.T. 353; (1900) 49 W.R. 281; 17 T.L.R. 130;
Sanderson v Graves [1875] UKLawRpExch 23; (1875) L.R. 10 Exch. 234; 33 L.T. 269.

MACDUFF C.J.: [31st August, 1962] -

Thep>The Defendant is thestered lessee of Crown Leas Lease No. 920 in respect of Lot 5, Section 9, Samabula Government Indian Settlement, Suva, upon which is ed a building of wood and iron. The Defendant is the maternaternal uncle of the Plaintiff and the Plaintiff has lodged in the house on this property for some 16 years, first with his maternal grandmother, and after her death, in 1953 with the Defendant, who had then become the owner of the property.

The Plaintiff claims that in the month of June, 1954, it was mutually agreed between himself and the Defendant that in consideration of his paying to the Defendant the sum of £6 per month, which amount was to be used in liquidating a mortgage over the property in favour of the Australia and New Zealand Bank Limited, which was secured by registered Mortgage No. 5524", the Defendant would transfer to him a one-third share in the said property when the said mortgage had been paid off. The Plaintiff claims that in pursuance of this agreement he paid to the Defendant the sum of £534 in cash and that he also carried out certain works and repairs to the said house on the property to the value of £200. He also says that he lodged with the Defendant and while he did so he paid him a monthly, £7 in respect of his board and lodging. About the month of November, 1961, the amount due under the mortgage to the Australia and New Zealand Bank Limited having then been liquidated, the Defendant gave him, the Plaintiff, notice to quit his lodgings on the said property and subsequently he vacated them.

The Plaintiff accordingly claims, firstly that the Defendant constituted himself a trustee of the said property pursuant to the agreement entered into between the Defendant and himself, and he claims a declaration to that effect with an order that the Defendant transfer to him a one-third share in the said Crown Lease No. 920, in the alternative he claims that the Defendant is indebted to him in the sum of £734 in respect of the moneys paid by the Plaintiff to the Defendant and the amount expended by the Plaintiff on the said property, and he asks for judgment for that amount.

The Defendant denies that there was any such alleged agreement, he denies that the Plaintiff has paid any moneys whatsoever in pursuance thereof or that the Plaintiff has expended any moneys on improvements to or repairs to the house on the said property. While he adthat the Plaintiaintiff lodged with him and had lodged with him since the death of the Plaintiff’s grandmother and that he noti the Plaintiff to quit his lodgings in the said property he denies that the PlainPlaintiff tiff had at any time paid him £7 per month or any sum at all in respect of his board and lodging.

In the alternative, the Defendant pleads that if there was any such agreement as alleged by the Plaintiff then there is no sufficient note or memorandum in writing in relation to suceged contract, and he relies on the provisions of Section 5ion 59 of the Indemnity, Guarantee and Bailment Ordinance (Cap. 199, Laws of Fiji) and Section 4 of the Statute of Frauds.

Counsel for the Defendant raised several defences in law to what was, in effect, a claim for specific performance of the alleged agreement and in which there was considerable merit but to which, in view of the action taken by Counsel for the Plaintiff, it is now unnecessary for me to refer.

In his final address Mr. Marquardt-Gray for the Plaintiff apparently accepted his failure to establish his claim to specific performance and accordingly abandoned his claim for a declaration of trust and consequent transfer of a one-third interest in Crown Lease No. 92(7) and asked for judgment for the amount alleged to have been paid by the Plaintiff to the Defendant, that is to say the sum of £534, and for the amount alleged to have been paid on behalf of the Defendant, that is to say the sum of £200. As the basis of his claim he relied upon a statement in Anson’s Law of Contract, 19th Edition, at page 79 to the effect that-

"The exclusion of a money payment from admissible acts of part performance has also been explained on this ground, for the money can be recovered back by action if the contract is not performed.”

This statement of the law is based on the remarks of Swinfen Eady L.J. in Chaproni Lambert [1917] 2 Ch. 359 t359 that –

“It is not clear that the mere payment of money does not change the relative positions of the parties though it may give rise to a claim to recover it back.&#

These cases were dere dealing with the question as to whether money payments pursuant to the parol contract were acts of and came within the doctrine of part performance. The remwere,eforrefore obit obiter and even so were both expressed in the permissive tense. Hence it we seet that the sthe statement in ’s Law of Contracttract

C>Chitty on Contracts, 22^nd Edition&#/i>at page 1591 1591 under the heading of Quasi Contrad resion, makes this shis statement -

“the mere face fact of one party having paid money to another under a contract which heot enforce against the latt latter, because of his non-compliance with a statute requiring written evidence will not entitle the party who has paid such money to recover the same on failure of consideration, for such a contract is not void it is merely unenforceable”

If this alternative claim of the Plaintiff were based on there being afailure of consideration then his claim would fail.

Any claim by the Plaintiff on the express contract itself would appear to be precluded. Halsb&0;Laws oaws of England 3rd Edition Vol. 8 at page 110 says-

“A contract, though there han pernce on the part of the plaintiff, but not on the part of the defendant, is still till to beto be considered as a contract within the tory provisions which requirequire a note or memorandum in writing and the defendant is not precluded by the fact of performance by the plaintiff from setting up the want of writing in any action on the express contract, except in a case where the equitable doctrine of part performance applies.”

Equity, however, will assist a plaintiff in certain cases on the basis that there is an implied promise by the defendant to pay. Halsbu217;s Laws of Engl England continue-

"But ifut if the contract has been performed by the plaintiff, and everything has been done by the defendant upon the doing of which the ould a promise to payo pay, the plaintiff can recover on such iuch implied promise notwithstanding the statute.”

This follows a statement of the law by Bramwell B. in Sanderson &amor. v GraveGraves [1875] UKLawRpExch 23; 33 L.T. 269, where at page 271 he says-

"There are cases w whenthing is executedcuted, a defendant might be liable; as fors for instance, on a contract to paint and deliver a picture on and not before a day distant more than a year. If, at the time appointed, the person ordering the picture took it, he would be held to have renewed his promise at the moment. So of any case wthe law wouw would imply a promise on the doing of anything by the promisor.”

From the decided cases an implied promise by a defendant would appear to arise in four instances, fir can plied from an accn account ount stated: secondly, it can arise in respect of moneys had and received by the defendant for the use and for the benefit of the defendant; thirdly, it can arise in respect of moneys had and received by the defendant for the use and benefit of the plaintiff; and fourthly it can arise in respect of what is known as quantum meruit.

Turning now to the evidence, this falls into two parts, the first that in respect of the alleged payment of the sum of £6 per month pursuant to the agreement, the second that in respect of the amount of £200 alleged to have been spent on material and labour by the Plaintiff.

The Plaintiff alleges that he paid to the Defendant £6 per month from the time of the agreement with the Defendant from and including the month of June, 1954, up until the month of October, 1961 a total of £534. He has ped twistegistrationation slips for two letters which he says contained money that he sent to thendant while hile he wrkingavenui in September and October, 1959. Thendant agreed that he hade had rece received ived payments of £6 per month from thintifle th elatter was in Tavenui but says that they whey were fere for payment to the Plaintiff’s father. In view of the fact ihatoul would have been easier for the Plaintiff to have sent moneys to his father through the post office at Nasouri I find itssiblaccept this explanation.

There is considerable corroboration of the Plaintlaintiff&#iff’s version of the original agreement in the evidence of Ram Lakhan who says that when the Defendant was trying to raise the mortgage he and the Plaintiff told him both of them would make the paymnets. Incidentally after isagreemgreement between them in 1961 when Ram Lakhan approached the Defendant at the request of the Plaintiff while the Plaintiff insisted that he made monthly payments on the house the Defenclaimed that these paymentsments were in respect of boarding and lodging. If that admissiotaken againagainst them then the payments he received were in respect of the house.

Generally the Plaintiff gave a clear and straight forward version of s andsupported by responsible and believable witnessesesses.&#16. Thendant impressed me most most unfavourably, he was evasive in cross examination and his brother Bidesi appeared to be acting as his messenger from inside the Court to his witnesses outside.ټI have no hesitation whan whatsoever in accepting the evidence of the Plaintiff and his witnesses and find as fact that he paid to the Defendant the total sum of £534 pursuant to an agreement made by them in 1954.

Coming next to the Plaintiff's claim in respect of repairs. He says that he has lost his receipts but claims £57.4.0 for materials bought and £114 for his own labour and labour he employed. He has produco receipts fors for £45 paid to Millers Limited some eighteen months before he made the agreement with the Defendant. I doubt very much whether this timber was used on the Defendant's pre.&#16 only witness cals called tled to give evidence of being paid by he Plaintiff was Mudliar who worked as a plumber for two weekends. The Defendant says that he gave the Plaintiff the moneys to pay this witness. On the evidence and the surrounding circumstances Plaintiff has failed to prove that he expended money in the purchase of materials for the Defendant's house or in payment of labour. I have no doubt l that that he did do some work on the house ansiderably more than the Dthe Defendant says. It is equally obvious ـ҈th60;that thet there was never any agreement for payment for his laand a in trcumss, I am forced to hold that hhat he gave gave hise his labo labour gratuitously as a member of the Defendant's family which, in effect, he was. This part of his clasm muil fail.

The remaining question is whether there is any basis in law on which the Plaintiff can support his claim for repayment of the moneys paid to the Defendant. I have perusednumerous auth authorities quoted in the English and Empire Digest, Vol. 12, and I can trace no authority under which I can find a basis for allowingPlain#8217;s claim for repayment of £534 paid ford for him him to the defendant.

Accordingly judgment will be for the Defendant on the claim with costs to be taxed if not agreed.

Judgment for defendant.