Spencer v Francis

• Jurisdiction: Antigua and Barbuda
• Judge: Gordon, J.A.,Lewis. C.J.,St. Bernard. J.A.
• Judgment Date: 20 February 1970
• Neutral Citation: AG 1970 CA 1
• Docket Number: Civil Appeal No. 2 of 1969.
• Date: 20 February 1970
• Court: Court of Appeal (Antigua and Barbuda)

Court of Appeal

Lewis, C.J.; Gordon, J.A.; St. Bernard (Acting)J.A.

Civil Appeal No. 2 of 1969.

Spencer

and

Francis

Appearances:

S. Christian for the appellant

McC. George for the respondent

Contract - Collateral Agreement — Mercantile Law Amendment Act, Cap. 64 (Antigua s.2) — Contracts in Writing Act, Cap. 17 s.2 — Fraud and Perjury Prevention Act, Cap. 34, s.2 — Statutes of Fraud 1677 (29. Chas. 2) [UK] s.4.

Facts: Evidence revealed that the respondent's son damaged the appellant's car. The respondent promised orally that if the appellant kept the matter out of court she would compensate for the damage. The respondent defaulted. The issue was whether the oral contract was enforceable.

Held: The agreement was a collateral one and therefore was required to be evidenced in writing if the appellant was to sue on it. Appeal dismissed.

Gordon, J.A.

1 The facts in this case are not in dispute. The appellant while driving his motor car along the All Saints road on the 23rd June, 1968, had the windscreen of his car smashed by a missile thrown by a young lad aged 17 years. The mother of the lad, the respondent in this case, on hearing of the incident went to the appellant and told him that the boy had only recently been bound over by the Court to be of good behaviour, and that as a consequence she was anxious that the matter be not taken to court, In furtherance of a promise that the appellant would not bring any action against the boy she promised verbally to pay the cost of replacing the windscreen by weekly instalments of $12.00. The cost of replacing the windscreen was 312.61. Towards this amount $25.00 was paid by the respondent. She however defaulted on her promised weekly payments because she lost her job. The appellant sued for the balance of $287.61.

2 At the hearing counsel for the respondent submitted that the contract was unenforceable, citing in support Section 2 of the Mercantile Law Amendment Act (Cap. 54) of the Revised Laws of Antigua. The trial judge held that this section did not apply to the facts of the case but that section 2 of the Contracts in Writing Act (Cap. 17) of the Revised Laws of Antigua applied. He referred in his judgment to the case of Kirkham v. Marter (106) E.R. 491 and on the authority of that case gave judgment for the respondent. From this judgment the appellant has appealed.

3 Counsel argued that Section 2 of the Contracts in Writing Act (Cap.17) and the principle laid down in Kirkham v. Marter did not apply since this was an original promise to pay and not a collateral one. The relevant portion of section 2 of the Contracts in Writing Act reads as follows:–

4 2. In actions of debt or upon the case grounded upon any simple contract no acknowledgment or promise by words only shall be deemed sufficient evidence of a new or continuing contract unless such acknowledgment or promise shall be made or contained by or in some writing to be signed by the party chargeable thereby;..”

5 In my view neither section 2 of the Mercantile Amendment Act nor section 2 of the Contracts in Writing Act apply in this case. Section 2 of the Mercantile Amendment Act provides that where contracts are required to be in writing, in order to be enforceable the considerations need not be stated, while section 2 of the Contracts in Writing Act deals with cases which fall within the scope of the Statute of Limitations.

6 Counsel for the appellant further contended that this case falls within the principle of Read vs. Nash 95 E.R. 632 and submitted that the respondent must establish that there was such a miscarriage not merely by the statement made by the appellant or the respondent but by a judgment...