HIGH COURT OF SOLOMON
ISLANDS
Civil Case No: 335 of 1996
MARINE SERVICES LIMITED
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v
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DALSOL LIMITED
High Court of Solomon Islands
Before: Palmer J.
Civil Case No: 335 of 1996
Hearing: 30th June
1999
Judgment: 9th July
1999
A. Rffe for the Plaintiff
G. Suri for the Defendant
PALMER J.:
The Defendant ownt owned is barge called Tung Shing IV which was used in its
logging operations. It needed a new landing
ramp. The Defendant invited
quotations for the job from interested companies. The Plaintiff was among
three other persons
who offered quotations. The other two were R & R
Engineering Pty. Ltd, and Cheng. The Plaintiff submitted a quotation of
$38,000-00 for the ". . . manufacture and supply one (1) only Landing
Ramp as described for the Dalsol Dumb Barge. " (see Exhibit 1). R & R
Engineering Pty. Ltd. submitted a quotation of $40,000-00 for the supply of
a landing ramp
and a further $2,500-00 to have, it fitted (see Exhibit 7).
The Plaintiff's quotation of $38,000-00 was accepted.
THE PLAINTIFF'S CLAIM.
The Plaintiff claims the
quotation 8,000-00 was for the manufacture and supply of a landing rang ramp
only. It did not
include the fitting of the landing ramp and associated
repair works. Accordingly he has claimed a total of $10,885-31 for the
extra
work requested by the Defendant.
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THE DEFENDANT'S CLAIM.
The Defendant on the other hand
argues that the fittin associated repairs were inre included in the
quotation of $38,000-00.
It submits they had been the subject of an oral
agreement entered into between the parties prior to the acceptance of the
quotation by the Defendant.
THE .
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The contentious issue between
the parties is whether the fitting of the landing ramp formed part of the
quotation of $38,000-00
agreed upon by the parties or not.
THE LAW.
There is no compld issue
of law for determination. The case is based on a simple contractual
rel relationship between
the parties which is not disputed; that is, a contract
for the supply and manufacture of a landing ramp. The dispute turns
essentially on evidence regarding whether the fitting and installation and
associated repairs to the barge were also
included in the contract for the
supply and manufacture of the landing ramp or whether it was a separate job.
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UNDISPUTED .
b>
It is not disputed that a
landing ramp was constructed and supplied by the Plaintiff and duly paid for
by the Defendant
in the sum of $38,000-00 (see Exhibits 8 and 9). It is also
not disputed that work had been done by the Plaintiff in having
the landing
ramp duly fitted to the barge and repair work done on the barge so that the
landing ramp could be securely
fitted.
THE SUBMISSION OF THE
PLAINTIFF.
The Plaintiff subthe
quotation of $38,000-00 made for the manufacture and supply of the landing
ramp did not include
the installation costs. It submits the request for
installation of the landing ramp was made when the work on the new landing
ramp was about half-completed. This was an extra job requested to be done by
the Defendant and therefore had to be charged
separately.
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THE SUBMISSION OF THE DEFENDANT.
The dant submits on the
other hand, that a verbal agreement had been entered into by the the parties
which superseded
the written quotation for the inclusion of the installation
costs of the landing ramp in the amount of $38,000-00 agreed upon.
THE EVIDENCE.
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Evidence of the Plaintiff:
The evidence in e in support of the Plaintiff's claim consists of the evidence of
Joshua Thomas. He states no mention
was made of the fitting and installation
of the landing ramp when the quotation was made and accepted. The additional
work of fitting the landing ramp was requested at a later date when the work
had already been commenced.
Evidence of the Defendant:
The evidence adduced by the Defendant on the other hand consisted of the
evidence of Jimmy Xiao. His evidence was in
direct contrast to the evidence
of Joshua. He stated he spoke to Joshua at his Office about the quotation
given whether
it included the fitting of the barge door as well or not. On
being told verbally it was included, he issued an acceptance of
the
quotation.
Analysis of the evidence:
This case turns on the credibility of evidence of the witnesses of each
party. Joshua states the quotation of $38,000-00
given consisted only of the
manufacture and supply of the landing ramp. At the time it was given and
accepted by Jimmy
there was no mention that it might also include its
installation on the barge. Exhibit 1 is the quotation provided by Joshua.
It
is dated 16th February 1996 and reads as follows:
"QUOTE FOR BARGE RAMP
We hereby submit our
quotation of $38, 000-00 for Marine Services Ltd to manufacture and supply
one (1) only Landing Ramp
as described for the Dalsol Dumb Barge.
This quotation is valid for
one (1) month period as of the above date.&que."
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On 27th Februa96, a reply
was received (see Exhibit 2). It reads:
"We agreed your quotation about $38,000-00 and refer your letter date 16th February uary 1996. "
Joshua states, not until some
teks or so after commencement of the contract did Jimmy make make enquiries
with him whether
he would be able to fit the landing ramp onto the barge as
well. He states this was one amongst other extra jobs requested
by Jimmy to
be done. He only agreed to do the job on the basis it was an additional job
and to be charged separately.
Jimmy on the othed denies
ever requesting any additional work to be done by Joshua. He states the
fitting of the
landing ramp had already been agreed to verbally by Joshua at
his Office prior to his written acceptance of 27th February 1996.
There is evidence before this
Court to support the version of eitarty. Ultimately this case case turns on
which version
this Court accepts as more credible. I have thought carefully
on the evidence adduced before me, the demeanours of the witnesses
on the
witness stand, and the submissions of learned Counsels and come to the
following conclusion. I find respectfully
that there was an agreement for
the manufacture and supply of one landing ramp; the dimensions of which had
been clearly
set out in the plan marked as Exhibit 10. I find on the
evidence before me that there was an offer for the manufacture and
supply of
one landing ramp for $38,000-00, comprised in the quotation dated 16th
February 1996. There was some suggestion
by learned Counsel for the
Defendant that this should be viewed as a mere invitation to treat and not
an offer, citing
the case of Harvey v. Facey [1893] A.C. 552
in support. The facts briefly of that case were as follows. A
sent a telegram to B as follows:
�Will you sell us Bumper
Hall pen? Telegraph lowest cash price, answer
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paid.'
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B
replied by telegram,
'Lowest price for Bumper
l Pen �900.'
A
replied,
<
'We agree to buy Bumper Hall
Pen for �900 asked by you.'
Bumper Hall Pen was a plot of land and A claimed this exchange of telegramegrams constituted a
valid offer and acceptance. The Judicial Committee of the Privy Council
however found there was no contract as the telegram sent by B
in stating the lowest price for the property was not making an offer but
merely supplying information. The offer was
the telegram sent by A
agreeing to buy the property for �900.
That case can be easily
distinguished from thse in that the quotation of $38,000-00 was in
direct rect response to an
invitation by the Defendant for quotations to be made
for the manufacture and supply of one landing ramp. The invitation for
quotes therefore can be seen as the invitation to treat. Further, it was
expressly provided that the quotation was valid
for one month. That can only
mean it was intended to be an offer capable of acceptance within the one
month period and
not a mere invitation to treat.
I also find, on the evidence
before me, that this quotation is ar (with only two thousand sand dollars
difference) to
the quotation also provided by R & R Engineering Pty. Ltd for
the manufacture and supply of a new landing ramp (see Exhibit
7). The
quotation provided by R & R Engineering for the construction of a new
landing ramp was $40,000�00. That supports
the evidence of Joshua that the
quotation of $38,000-00 was more likely to have been intended for the
manufacture and
supply of a landing ramp than to have the cost of fitting
and installation also included. The difference is much greater comparatively
when the quotation of R & R Engineering includes the fitting costs of the
landing ramp and hence unlikely to be equated
with the quotation of
$38,000-00 offered by the Plaintiff.
THE VERBAL AGREEMENT CLAIMED BY
THE DEFENDANT.
The Dant claims the
Plaintiff was asked at its Office whether the fitting and installationation of
the landing ramp would
be included in its quotation of $38,000-00 and was
given an answer in the affirmative. In other words, there was a
counter-offer
by Jimmy to the effect whether Joshua would accept the work of
installing and fitting the landing ramp for $38,000-00 as well.
Joshua not
only denies accepting such counter-offer, but also denies any such
conversation ever taking place. Jimmy contends
this conversation and verbal
agreement took place sometime before 27th February 1996.
The written acceptance of 27th
February 1996 is cruto this case. As conceded by the Defendant, this
came came after the
purported conversation and agreement had been entered into
for the fitting and installation costs to be included in the quotation
of
$38,000-00. The significance of that written acceptance which I consider to
be the determining piece of evidence in
this case can be summarised as
follows. That whatever the view or claim of the Defendant might have been,
and irrespective
of the fact that there might have been a verbal acceptance
of that verbal agreement, the written acceptance superseded that
verbal
agreement in any event. To put it in another way, even if there might have
been a counter-offer as claimed by
Jimmy in his evidence, it was revoked by
the written acceptance of 27th February 1996. The evidence before this Court
in my respectful view is more consistent with the evidence of Joshua; that
there was no such conversation and no such verbal
agreement entered into
prior to 27th February
1996. But even if there might have been such a conversation and an agreement
in place, it is my respectful view
that agreement was superseded by the
written acceptance of 27th February 1996.
That written acceptance can be
viewed as an unequivocal counter-offer by the Defenfor the payment of
$3 $38,000-00,
for the manufacture and supply of a new landing ramp, and
acceptance demonstrated by the Plaintiff in the actual performance
of the
work.
I find the terms of the written
acceptance dated February 1996 to be clear and unequivocal. There was
no mention
whatsoever of anything to do with the fitting of the landing ramp
in that letter. I find the explanation offered for not mentioning
the costs
of fitting with respect to be unconvincing. It doesn't take much to add a
simple phrase to the effect that
the quotation of $38,000-00 was to include
fitting of the landing ramp. In my respectful view, the Defendant was bound
by the terms of the written acceptance issued by him on 27th February 1996
which can only be linked to the manufacture and
supply of a new landing
ramp.
Having so found, it necessarily
follows the Plaintiff is entitled to be paid for the work done in having the
barge door
fitted as well. I find the evidence of Joshua with respect to be
consistent with this. The Defendant does not deny that work
had been carried
out by the Plaintiff in having the barge door fitted and that it was not
necessary or required.
There has been submission by
learned Counsel for the Defendant that the amount quoted by Joshua might
have been unreasonable
when compared with the rates quoted for the same job
by R & R Engineering. Unfortunately, there has been virtually unchallenged
evidence provided in detail by Joshua as to the nature of the work done and
how the amount of $10,885.31 was arrived
at. It should be pointed out the
quotation offered by R & R Engineering was on a cash basis only. It would
have been
fairer to get someone with similar expertise as Joshua on the
witness box and be subjected to cross-examination about the figure
raised
for the work done, or to get the person who made the quotation from R & R
Engineering onto the witness box
and be subjected to cross-examination as
well. I note though the reasonableness of the amount charged for the fitting
of the barge door had not been pleaded and hence not open to the Defendant
to raise in defence at this stage.
INVOICE NO. 150/96 [EXHIBIT 3].
The Plaintiff states a
similar to Exhibit 3, after it had been corrected, was sent to the
Defendant. ant. The Defendant
denies receipt of this invoice. Mr.
Suri submits this invoice may have been merely invented. Unfortunately the
evidence before this court does not support
his submissions. The invoice for
$28,000-00 was dated 12th April, 1996. Joshua believed a copy was sent to
the Defendant
although he concedes he was not directly involved in the
office work. The evidence showed that payment was made three days
later on
15th February 1996. That with respect is consistent with the view that such
invoice must have been sent and
received on or around that date for payment
to be effected. But even if it might not have been received, it does not
alter the fact that work had been done which was not part of the quotation
of $38,000-00 and therefore ought to be paid.
INVOICE NO. 159/96.
This invoice pertained to the
extra work done in providing extra horizontal bg to the landing ramp
door which was
also not included in the original quotation. Whilst this is
conceded by the Defendant it also goes to support the version of
the
Plaintiff that there were other extra jobs done as requested by the
Defendant.
CONCLUSION.
I find that there was an
agreement for the manufacture andly of one landing ramp. Tha. That this did
not include fitting
costs and the repair work needed to be done on the barge
to secure the ramp. Accordingly the Plaintiff is entitled to be paid
his
reasonable costs for the work done.
1. &nbbsp; ENTER JUDGEMENT
FOR THE PLAINTIFF IN THE SUM OF $10,885-31.
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2. &nbssp; COSTS OSTS OF THE
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DEFENDANT &&nsp;;&nspp;&nssp; &nbp; p;&nssp; p; &nbp; &nbp; ;&nbpp; &nnsp;&&nsp; &nbp; &nbbp;&nnbp;&
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THE COURT.
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