Court allows quantum meruit claim for services rendered but dismisses counterclaim for compressor repair due to insufficient evidence.

[*494] 1985 May 31

(P. KALLIS, D.J.)

IN THE DISTRICT COURT OF NICOSIA

Themis Stavrou,

Plaintiff,

v.

Andreas P. Vassili,

Defendant.

(Action No. 5606/84).

Civil Procedure - Suing in a business name - Whether possible - The Civil Procedure Rules, Order 7.

Services rendered - Remuneration - Reasonable remuneration on a quantum meruit - Basis of assessment.

Contract - See Services rendered.

G. Papantoniou, for the Plaintiff.

S. Devledian, for the Defendant.

JUDGMENT

The following judgment was delivered by:-

P. KALLIS, D.J.:- The claim of the plaintiff in this action was for £246 due by virtue of invoices and/or as balance of account and/or for services rendered. Plaintiff alleged in the statement of claim that he is carrying on engineering and other works under the business name T.G.S. Plant Maintenance; that on the instructions and [*495] at the request of the defendant he undertook to construct a cold-store for him and upon the completion of the work he issued three invoices for the total sum of £1,846.- that defendant on various dates paid £1,600.- and there remained a balance of £246.

The defendant in his defence raised the preliminary objection to the effect that the work alleged in the statement of claim “had been entrusted to the firm T.G.S. Plant Maintenance and the alleged relative invoices have been issued by the said firm”; and that “this being the case the said firm only is entitled, if at all, to institute any proceedings in relation to the subject-matter”.

Subject to the above objection the defendant alleged that the said firm undertook to carry out the work at the agreed fixed sum of £1,600. - in all and that the defendant duly paid the above-mentioned sum. Defendant, further, alleged, in the alternative, that even if no express agreement had been made the amounts charged and/or prices in respect of the respective several items set out in the invoices were excessive and/or unreasonable. He further contended that the work included a certain quantity of polysterine which the defendant, at plaintiff’s express request, purchased himself and paid for it the sum of £65. He finally alleged that the firm had expressly undertaken to repair [*496] and put in a proper working condition a compressor belonging to him; and that the firm refused to repair the compressor as required and he (the defendant) “had to spend £45. - for this specific purpose”. The aforesaid two amounts of £65. - and £45. - are claimed by defendant by way of counterclaim.

In giving evidence in support of his claim, the plaintiff said that he is a mechanical engineer carrying on business under the business name T.G.S. Plant Maintenance which is registered. In February, 1984, he was asked by defendant to construct a cold-store for him at the agreed .amount of £900. This agreement was made on 28.2.1984 and he was paid £600.- cash in advance. As the internal coating of the walls and the floor was not included in the agreement and in the above price defendant entrusted plaintiff to do part of this work with panels and no agreement was made regarding the price of this work. Plaintiff having bought the panels he employed 20 panel workers who fixed the panels and he charged defendant with £380. When this work finished defendant asked him to transport his old cold-store equipment from the old cold-store and install them in the new one which was constructed by plaintiff. No agreement was entered for the price of this work and plaintiff charged £190. - for labourers, supervision and commissioning. For this item of work he used materials of the value of £113. After the completion [*497] of this work he was asked by defendant to supervise the electrical installation and connection with the cold store and supply the necessary materials. For these materials he charged defendant £128.- invoice 856,-:Exh. 2 - and £43.500

- invoice 857, Exh. 3 and £90.- cost of labour. Upon the completion of all the works he issued three invoices - Exh. 1, 2, 3 on 20.3.1984 and 21.3.1984 representing a total amount of £1,846. On 31.3.1984 defendant made the last payment of £200.- and on the receipt-Exh. 4 - he (plaintiff) wrote “balance £246”.

In cross-examination he said that the invoices were issued by the above firm. He denied that on paying him the £200.- defendant told him that they were in full settlement. He admitted that under the agreement of £900.- he was bound to supply polysterine; and that part of the polysterine was brought by defendant from Morfitis Firm and that he (plaintiff) has not paid for it and no claim has been made against him by Morfitis Firm for the payment of such polysterine, the value of which was £40 - £50.

He, also, said that regarding the job in respect of which he charged £380.- he paid £184.- for the materials, £15.- transport expenses, £100.- to the labourers and the balance represented his own supervision and profit. Regarding the work in respect of which he charged £190.- he said that no materials were used and the installation took 4 days to be [*498] completed and the work was followed up for a week. Two labourers were employed for this job. He further said that the removal and installation of cold-storage engines is a specialised job and is not reckoned by wages. Regarding the work in respect of which he charged £90.- he said that the labourers were not his own but those of a certain Grivas to whom he paid £80.- but he charged £90.-, the difference being his profit.

The defendant in his evidence stated that all the works performed by plaintiff for him were agreed at £1,600. He was asked by plaintiff to bring polysterine from Morfitis and Etabol firms and to pay for the one he took from Etabol and they would settle it between themselves later. He did pay £65.- for the Etabol polysterine and had the invoice with him

- ‘A’ for identification. Plaintiff did not pay him £65.- even though the Etabol polysterine was used for the walls and floor of the cold-store. Plaintiff handed to him the invoices - Exh. 1, 2, 3 on 31.3.1984 when he (defendant) handed to him the cheque of £200. When he gave the cheque of £200.- and on the receipt - Exh.4 - he noticed that there was reference to a balance of £246.- he said to plaintiff that their agreement was for £1,600.- which had already been paid. The compressor is not functioning properly and though plaintiff was informed about it, he did not repair it. [*499]

When put to him in cross-examination that since their agreement was for £1,600.- and he allegedly paid £65.- to Etabol and why then did he not deduct the £65, he replied “I paid him in full as I repeatedly spoke to him about this receipt on the last day it escaped my attention (‘μου διέφυγε’)

It should be noted that defendant gave no evidence at all in chief in support of his counterclaim for £45.- and when asked in cross-examination about this item he said that someone comes once every two months and adds the oil that leaks from the compressor and he pays him £10 - £12.- for the purpose; and when asked by does he claim £45.- he said because the compressor has not been repaired.

D.W.2 Chrystalla Pitta, the wife of the defendant, testified that she was present when her husband handed to plaintiff a cheque in full settlement and when he asked for a receipt in full settlement plaintiff produced certain invoices saying that he could not give such a receipt because, as appearing in the invoices the cold-store cost more than what had been originally agreed. Her husband protested saying that the agreement was for £1,600.- whereupon plaintiff admitted that it was so but alleged that the cold store cost more.

In cross-examination she was asked whether her husband has sought to deduct any amount and she replied that there was a conversation [*500] in respect of polysterine which had been paid by her husband and reference was also made to the bad condition of the compressor.

Before dealing with the issues that arise for consideration, I will deal with the preliminary objection which has been raised by the defendant.

The matter is governed by rule 7 of our Civil Procedure Rules. In a note to 0.48(a), r.1, of the English Old R.S.C. which is the one corresponding to our Order 7, r.1, it is stated that “a person, other than a money-lender trading by himself as a firm, or in an assumed or trading name, must sue in his own name, though he may be sued in his trading name”. The authority in support of this proposition is Mason v. Mogridge, 8 T.L.R., p.805.

Relying on the aforesaid, I hold that a single person - such as the plaintiff - cannot sue in a firm name and I will, accordingly, dismiss the preliminary objection.

In the light of the pleadings and the evidence, the following issues arise for consideration:

(a) Whether there was an agreement between the parties for the performance of the work at £1,600;

(b) If no agreement had preceded, then what is the amount to which plaintiff is entitled; [*501]

(c) The counterclaim.

As decision on the above issues is only possible upon an evaluation of the evidence, I presently proceed to evaluate the evidence of the three witnesses whom I have had the opportunity to watch very carefully whilst testifying before me and to observe their demeanour in the witness-box. Having done so, I arrived at the conclusion to accept the evidence for the plaintiff and to reject that of the defendant and his wife. I adopt this course not only because plaintiff made a much better impression to me as a witness, having given his testimony in a more natural and convincing manner, but, also, because the defendant was contradicted by his wife on the question whether the issue of £65.- was raised at the meeting with plaintiff, for he said that he did not raise this issue during the last payment because it escaped him, whereas his wife said that he did speak about it. Further, had his version that there preceded an agreement for £1,600.- been correct, why then did he pay £200.- in full settlement and not £200 - £65. The most opportune moment to raise the issue of the agreement for a fixed amount of £1,600.- was the time he made the alleged payment in full settlement and yet he says that the £65.- escaped him even though he was confronted with a receipt for a balance of £246. On the other hand, the plaintiff frankly admitted that he did not pay [*502] for the polysterine fetched by defendant and gave its value as £40 £50. I, therefore, find that there was no agreement. I, further, find that the plaintiff performed the work alleged; and this being the position, and in the absence of an agreement as to the remuneration, he is entitled to reasonable remuneration. I will hereinafter state the law governing reasonable remuneration:

“Compensation quantum meruit is awarded for work done or services rendered when price thereof is not fixed by contract. For work done or services rendered pursuant to the terms of a contract, compensation quantum meruit cannot be awarded when the contract provides for the consideration payable in that behalf. Quantum meruit is a remedy which is alternative to, rather than a form of, damages. A quantum meruit claim arises where work is done or services performed by one person for another in circumstances which entitled the person doing the work or performing

the services to receive a reasonable remuneration therefor”. (See Indian Contract and Specific Relief Acts, 9th Ed., pp. 476-477).

“When one person has rendered a service to another in circumstances which indicate an understanding between them that it is to be paid for, although no particular remuneration [*503] has been specified, the law will infer a promise to pay quantum meruit, i.e. as much as the party doing the services has deserved, or, as is generally described a ‘reasonable sum’” (See Anson’s Law of Contract, 25th Ed., p. 668).

In Craven-Ellis v. Canons Ltd. (1936) 2 K.B. 403, the following passage occurs in the judgment of Green, L.J. (at p.412):

“In my judgment, the obligation to pay reasonable remuneration for the work done when there is no binding contract between the parties is imposed by a rule of law, and not by an inference of

fact arising from the acceptance of services or goods” (See also, “Quantum Meruit: The case of Graven - Ellis v. Canons Ltd.” by Lord Denning, published in 55 L.Q.R., p.54, where eight

propositions are deduced in regard to quantum meruit).

Now on what basis is the quantum meruit or reasonable remuneration to be assessed? In S.O.R.E.L. v. Servos,

(1968) 1 C.L.R. 123, the Court of Appeal, relying on Way v. Latilla, (1 937) 3 ALL E.R. 759, a House of Lords case, held that such remuneration must be reasonable regard being had to the particular circumstances of each case. [*504]

The Latilla case was a case where a commission had to be fixed. Lord Atkin said at p. 764:

“The quantum meruit would be fixed after taking into account what would be a reasonable commission, in the circumstances, and fixing a sum accordingly”.

In the Latilla case, same as in this case, there was no concluded contract as to remuneration; and Lord Atkin proceeded to state the following at p.764:

“I have, therefore,’ no hesitation in saying that the basis of the remuneration by fee should, in this case, on the evidence of the parties themselves, be rejected, and that Mr. Way is entitled to a sum to be calculated on the basis of some reasonable participation”.

Lord Wright thus stated the Law at p. 766:

“The question of the amount to which the appellant is entitled is left at large, and the Court must do the best it can to arrive at a figure which seems to it fair and reasonable to both parties, on all the facts of the case. One aspect of the facts to be considered is found in the communings of the parties while the business was going on. Evidence of this [*505] nature is admissible to show what the parties had in mind, however indeterminately, with regard to the basis of remuneration. On those facts, the Court may be able to infer, or attribute to the parties, an intention that a certain basis of payment should apply...

The precise figure can be only a rough estimate. If what the Court fixes is either too small or too large, the fault must be ascribed to the parties in leaving this important matter in so nebulous a state”.

The case of William Lacey (Hounslow) Ltd. v. Davis, (1957) 1 W.L.R. 932, is quite indicative of the wide latitude which the Court has in the field of assessment of the “reasonable remuneration”. I quote from p. 940:

“I have, therefore, come to the

conclusion that the defence to the alternative claim fails and that the court should imply a condition or imply a promise that the defendant should pay a reasonable sum to the plaintiffs for the whole of these services which were rendered by them. As to amount, I have considered the plaintiffs’ charges as set out in the schedule with some care. On the rather scanty information available to me, I have come to the conclusion that while some of the items may well be undercharged, [*506] certain of the larger items cannot be fully justified. The plaintiffs are entitled to a fair remuneration for the work which they have done, but they cannot, in my view, quantify their charges by reference to professional scales. Doing the best I can, I think the plaintiffs would be fairly recompensed if I deducted £100.- from the amount claimed, leaving a balance of £250.13s.5d.”

As it appears from the evidence of plaintiff in chief, he gave no details as to how he arrived at the figures claimed, but in the invoices there was a description of the work and the price of the materials supplied. This task was undertaken by the defendant in cross-examination in the course of which all the figures and mostly those relating to services were questioned. Regarding the work in respect of which plaintiff claimed £380.- I am of opinion, having regard to the evidence and in the light of the above legal position, that the amount of £81.- which is claimed as profit is excessive; and I would allow 15% profit on this item of work, calculated on the actual expenses incurred by plaintiff thereon - £100.- for the labourers, £184.- for the materials and £15.- transport fees - namely £45.- instead of £81.- and this the claim is reduced by £36. Regarding the other items on the evidence of the plaintiff which I have already accepted, I find that they are reasonable both as [*507] regards the materials and as regards the services and they are, therefore, allowed. Therefore, judgment is entered for the plaintiff in the sum of £210.

Regarding the counterclaim for £65.- plaintiff frankly admitted that he has not paid for the polysterine supplied by the defendant and nobody has raised a claim therefor. I am, therefore, satisfied, on the balance of probabi1ities, that the counterclaim on this item has been proved.

Now, as to the counterclaim for £45, though defendant pleaded that ‘he paid £45.- for the repair of the compressor in his evidence in chief he made no mention of this item; and when the matter was brought up in cross-examination he said that he pays £10 - £12 whenever a person comes once every two months to add the oil that leaks. He did not, however, give details, as he ought to, as to how he arrived at the figure of £45. Apart from matters going to his demeanour, which as already found have rendered his testimony unacceptable, the evidence on this item is not such as to constitute a proof therefor, and I am bound to conclude that defendant absolutely failed to prove his pleaded case regarding the counterclaim for £45.- which is dismissed accordingly [*508] In the result, judgment is given for the plaintiff in the sum of £210.- with costs to be assessed by the Registrar, and judgment is given for the defendant for £65.- on his counterclaim with costs to be assessed by the Registrar.

Order as above.