Court allows bailment claim where garage owner, facing criminal charges, sold excavator as agent by necessity.

[*369] 1982 February 15

(ARTEMIDES,Ag.P.D.C.)

IN THE DISTRICT COURT OF NICOSIA

Demetrios Ch.Lambides,

Plaintiff,

v.

Panayiotis Antoniou,

Defendant.

(Action No. 4942/80).

Contract - Bailment - Excavator delivered to garage for repairs - Garage owner facing serious criminal charge relating to presence of excavator in his premises - Asking its owner to remove it - And disposing excavator upon the failure of owner to do so

- Garage owner an agent by necessity - Has not contravened the contract of bailment - Sections 106(I)(b), 109 and 110 of the Contract Law, Cap. 149.

A. Eftychiou for N. Pelides, for the plaintiff.

H. Solomonides for L.Papaphilippou, for the defendant.

JUDGMENT

The following judgment was delivered by:

ARTEMIDES, Ag.P.D.C. : The plaintiff is[*370]an advocate practising in Nicosia. His claim against the defendant is for damages for breach of contract of bailment and conversion. It is alleged in the statement of claim that, in or abount April-May 1974, the plaintiff took an excavator imported from Rumania to the garage of the defendant, for service and repairs. Mr. Lambides is the registered owner of this excavator. It is further averred in the specially indorsed writ that the defendant undertook to repair this excavator but the work on it was being unduly delayed, the defendant always excusing himself by saying that he could not find the necessary spare parts.

In 1974 and after the turkish invasion the plaintiff further alleges that he did not show any interest for the excavator having conceded that the defendant would be in some difficulty to effect the repairs due to the tragic events that had followed. When the days had become better the plaintiff, so the allegations proceed in the writ, visited the defendant who however had again used various excuses in not repairing the excavator. The plaintiff later discovered that the defendant had dismantled the excavator and sold it in pieces converting to his own use the proceeds.

The defendant denies in his statement of defence all the above alleging that he never saw Mr, Lambides but the person who took to his garage the excavator was a certain Tsivikos (P.W.2), the brother-in-law of Mr. Lambides. The defendant had told Tsivikos that if he wanted his excavator to be repaired he should have gone to the company from which he had bought it and supply him with the necessary[*371]

spare parts which were very expensive and would not undertake to pay for them himself Tsivikos never did that.

The excavator had been placed for sometime in the garage and after some time it was transferred to the. yard of the defendants garage.

When the turkish invasion took place in July the defendant had to evacuate his garage which is very near to the confrontation line near SOPAZ premises. When he returned to his garage early in 1975 he noticed that certain machinery and spare parts which were lying in the yard had been stolen. He reported the case to the police, who detected the crime and a certain person was charged before the Nicosia District Court in August 1975.

In November 1974 Tsivikos was informed about the stealing and the defendant had also notified him to remove whatever had been left from the excavator from his garage. Tsivikos, however, took no steps to this end.

The state of affairs in the yard of the garage of the defendant was causing a nuisance and the Nicosia Municipality preferred a charge against him. The defendant was convicted and was ordered to remove all the articles that constituted the nuisance. He failed to do so and a charge was preferred against him in case No.3761/79 for disobeying the order of the Court.

The defendant visited then Tsivikos at Inia village where he was living and asked him to remove the[*372]excavator otherwise he would be forced to sell it as scrapiron. Tsivikos did nothing about it and the defendant proceeded to sell the excavator owned by the plaintiff together with other articles belonging to him as scrap-iron to a certain Andreas Charalambides for £I,000.-

The defendant says that he offered to Tsivikos the sum of £120.- representing the value of the dismantled excavator but Tsivikos turned down the offer. The defendant raises a counterclaim asking for £10.- per month as reasonable rent from 1973 to Io79, for storing the excavator of the plaintiff. The defendant's counterclaim has not been supported by any shred of evidence and has been in fact totally abandoned. It will therefore have to be dismissed.

I must straightforwadly point out that the whole contents of the specially indorsed writ contradicts the evidence adduced for the plaintiff. First of all Mr. Lambides himself took no part in the transaction that led to this action. He in fact knows nothing about the case. He only came into the picture when he was notified by his brotherin-law Tsivikos about the sale of the excavator and rang up the defendant asking of him the sum of £3,000.- or otherwise he would have reported the case to the police. The defendant had of course refused and so Mr. Lambides filed the present action.

Tsivikos was all along the agent of Mr. Lambides, who admitted this in his final address when conducting personally his own case. The allegations therefore as same[*373]are drafted in the specially indorsed writ do not accord with the admittedly true facts of the case. Be that as it is, however, I shall proceed to examine all the issues raised in the cause and I shall deal first with the factual aspect.

The witnesses whose evidence is essential in determining the cause are Tsivikos for the plaintiff and the defendant himself. Having examined their evidence with care and having also had the opportunity of watching them whilst testifying, I have no hesitation in concluding that the evidence of the defendant is a true account of what has. happened whilst Tsivikos has lied. The evidence of the defendant is in full agreement with his statement of defense and also accords with reason and the natural process of things in everyday life.

It is admitted that Tsivikos bought two excavators of similar type and make i.e. UTB. The excavators had been imported by Photiades's company from Rumania at a cost of £3,500.- each. Only a few months after Tsivikos had bought them he admitted that he had to give back the one to Photiades, who returned to him his money because the excavator had serious engine trouble and there were no spare parts to repair it and no such parts were forthcoming from Rumania. It is also admitted that these two excavators were a kind of their own and after the one had been taken back by Photiades the subject-matter excavator was the only one of its make in Cyprus.

It has been proved that there were no spare parts[*374] to repair the excavator and I do believe the defendant when he says that he asked Tsivikos to supply him with those. His explanation for this is quite understandable. Spare parts of this heavy machinery cost a lot and he would not have borne this cost himself waiting for Tsivikos to pay him when the excavator had been repaired.

Tsivikos had tried hard to follow the allegations contained in the specially indorsed writ. He threw on the defendant the blame for the delay saying that he had always shown interest in the repairs of his excavator. This was proved to be a lie and Mr. Lambides in his final address has conceded that he had not shown the interest to be expected from an ordinary person who takes his machinery to a garage for repairs but he proceeded nevertheless to say that the defendant had no right to sell it.

I find that Tsivikos showed no interest at all in the excavator which he had completely forgotten for six years. In 1974 he was notified by the police about the stealing and the defendant had asked him to remove whatever have been left of it. He did not, however, comply with the request of the defendant. The defendant has called the Registrar in charge of the criminal section of the Registry, to produce case No.3761/79 brought against him by the Municipal Council of Nicosia for disobeying the order of the Court made on 13.7.1978, by virtue of which he was commanded to remove within the period of two months,

and to use the words of the statement of offence: “Παλαιά τράκτορ, σιδερικά τα οποία ευρίσκονται εις την αυλή τουγκαράζ "AMDCO εις την

οδόν Α.Ζάκου"[*375]

Tsivikos admits that the defendant visited him at Inia village but he said that it was not for the purpose of removing his excavator from the premises of the defendant but that he wanted to talk to him about some other matters.

I dismiss this allegation. The defendant was facing a serious offence and he had every reason to be worried about it and wanted to comply with the order of the Court before answering the charge preferred against him. Since Tsivikos had again failed to call at the defendant’s garage and remove the excavator, the defendant sold whatever remained of it together with other articles of his own property as he had informed Tsivikos that he would do.

I now proceed to deal with the legal aspect of the case. Mr. Solomonides, appearing for the defendant, in a short but on the point address has referred me to two quite useful english cases.

Bailment is defined in section 106(I)(b) of our Contract Law as follows:-

"a 'bailment' is the delivery of goods by one person to another for some purpose, upon a contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them. The person

"delivering the goods is called the 'bailor'. The person to whom they are delivered is called the 'bailee'."

This definition reproduces in fact the principles obtained in the English common law (See Chitty on Contracts 24th Edition Vol. 2 Para. 2201).

The responsibilities of a bailee are to be found enacted in sections 109 & 110 of our Contract Law, which read as follows:-

109 "In all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed".

110 " The bailee, in the absence of any special contract, is not responsible for the loss, destruction or deterioration of the thing bailed, if he has taken the amount of care of it described in the last preceding section."

It is the submission of counsel for the defendant that the sale by him of the property of the plaintiff was within his duties as a bailee and he had done what he did with his own property when faced with the serious charge before the criminal Court for disobeying its order. No doubt the charge which the defendant was facing was not a light one. In fact it is quite a serious one and the penalty that carries is invariably imprisonment, unless of course the circumstances call for a lighter sentence.

The cases referred to by counsel are: Sachs v. Miklos and Others (1948) I All E.R. 67 and Munro v. Willmott

(1948) 2 All E.R. 983. In the first case the facts were in[*377] brief the following: - In 1940 the bailor arranged with the bailee so that the latter would store his furniture in her house. In 1944 the bailee wanted to terminate the bailment and wrote to the bailor requesting him to remove the furniture but the bailor could not be found. The furniture was sold by the bailee and the bailor brought an action for detention and conversion. It was held that the bailee should pay damages because she had no right to sell the furniture. What is important, however, in this case is that for the first time the principle of agent of necessity was introduced and it was held that the bailee was not an, agent of necessity and in selling the furniture was therefore guilty of conversion. Lord Goddard said the following at p.68:-

" In this case, whatever else there may have been, there was no emergency. It was not a case of the house being destroyed and the furniture left exposed to thieves and the weather, There was nothing perishable here in the sense in which that term is used when applied to goods. The fact was that Mr. and Mrs. Miklos wanted to get rid of this furniture which was in their way. If they were not entitled to sell as agents of necessity, however hard it may be, I cannot avoid the conclusion that, in sending the property to the auction rooms for the auctioneers to sell, they were guilty of a conversion. They were selling the plaintiff's property without his "authority."[*378]

The facts in the. case of Munro were these:- The owner of a motor car left. it at the premises of the bailee in the yard of his inn for three years. In view of the fact that the stationary vehicle was causing difficulty to drivers of other vehicles, the bailee had tried to trace the bailor but he failed to do so and he had consequently sold it. It was held in that case also, that the doctrine of agency of necessity could be applied to goods as well. It was held, however, that on the facts of the case no agency of necessity could arise. Lynskey J. said the following at p. 985 (bottom):-

"I am very doubtful if the doctrine of agent of necessity can be applied to a case of goods stored in premises, but, if it can, it can only be applied in a case of real emergency which necessitates the disposal of the goods. In this case I am not satisfied there any emergency. The highest it takes the defendant is that after June or July, 1945, the car became something of an inconvenience, not to himself, but to others who might be using the converted stables as garages for the use of their ambulances. I have had no real evidence which shows there was any necessity for the defendant to dispose of this car He may have found it inconvenient. He may have found it to some degree a nuisance, but that does not mean an emergency which compels him to dispose of it. It could have been left there. I am satisfied there was no real emergency which, if such a doctrine would apply to[*379] this case, would justify the sale of this motor car. That means that the plaintiff is. entitled to recover damages for the detention, or alternatively, the conversion of the car."

The case of Munro v. Willmott has been applied very recently in the case of Greenwood v. Bennett and Others

(1972) 3 All E.R. 586.

In the present case I find that the defendant did not contravence the contract of bailment and what he did was within his lawful rights. He did everything he could have done to persuade Tsivikos to remove his articles from his yard. When he was faced with the serious criminal charge for disobedience to a Court order he had no other alternative but to remove those articles otherwise he would be probably faced with a sentence of imprisonment. There is, however, another reason why the defendant was entitled to act as he did. When he visited Tsivikos at Inia he explained to him the situation and told him that he would be forced to sell the machinery and Tsivikos did nothing about it. The defendant therefore had become an agent by necessity and what he had done was with the tacit approval of Tsivikos the agent of Mr. Lambides. Lord Goddard had this to say on this point in the case of Sachs and Miklos, cited to above at p. 68 of the report:-

" I pause here to say that this case must go back to the county court judge because, although he has found that Mr. and Mrs Miklos sent letters[*380] to the plaintiff as well telephoning to him, he has not found whether the plaintiff received the communications. The importance of that is this. If a gratuitous bailee writes to the bailor and says: 'I am no longer willing to hold your property. Please remove it, 'and the bailor makes no answer and takes no step, and if that letter, is followed up by. another, which he receives, saying in. effect: 'As you have not answered my letter and taken any steps to remove your property, please understand that I shall sell it if you do not remove it or tell me what to do with it', and again there is no answer, it might be that a court could infer that the owner of the property was so disinterested in it that he was impliedly assenting to the sale."

In the light of my above findings the defendant is responsible to the plaintiff for the money he had received from the sale of the excavator, the price of which I find from the indisputable evidence was £120.- because it could only be sold as scrap iron according to its weight.

In the result there will be judgment for the plaintiff for the sum of £120.- without costs, Mr. Lambides, the plaintiff, being an advocate.

The counterclaim is also dismissed with no costs.

Judgment for plaintiff for £120.- without costs. Counterclaim dismissed