Owings v Sebastian

• Jurisdiction: British Virgin Islands
• Court: High Court (British Virgin Islands)
• Judge: Hewlett, J
• Judgment Date: 22 March 1977
• Neutral Citation: VG 1977 HC 3
• Docket Number: No. 10 of 1975
• Date: 22 March 1977

High Court

Hewlett, J

No. 10 of 1975

Owings

and

Sebastian

Appearances:

Mr. J. Archibald for the plaintiff

Mr. Mc. Todman for the defendant.

Contract - Agreement to reopen and manage hotel — Whether plaintiff entitled to reimbursement for services

Facts: Evidence revealed that the defendant while abroad appointed the plaintiff as her agent and in a letter requested the plaintiff to reopen and manage the hotel. There was no expressed agreement on the matter of payment for the plaintiff's services.

Held: There was an agreement for the plaintiff to manage and reopen the hotel. Further, there is an implied agreement to pay remuneration whenever a person is employed to act as an agent under circumstances which raise the presumption that the agent expects to be paid. Plaintiff entitled to payment for his money, his personal money spent on the business and for his services.

Hewlett, J

1 In this case the plaintiff claims (a) to be reimbursed for moneys paid by him to the use of the defendant and (b) a quantum meruit on an implied contract for services rendered. The defendant disputes the amount claimed in (a) and denies that there ever existed any contractual relations between the plaintiff and herself.

2 The plaintiff describes himself as a Social Secretary. He has worked as such in New York and has also worked as a Banquet Manager in St. Thomas U.S.V.I. He came to Tortola in 1970 at the invitation of the defendant and stayed at her hotel known as Sebastian's on Tortola for well over a year as a non-paying guest, rendering in return therefore whatever assistance he could give. He puts it that he helped the defendant manage the property. In April 1972 the defendant leased the hotel to a Mr. Perry. She herself had not been enjoying very good health and had gone to London for treatment.

3 On the 7th of August 1972 the plaintiff discovered that the hotel had been abandoned by Mr. Perry and that it had been broken into and looted. Deeply concerned, he immediately got in touch with the defendant's solicitor and obtained permission to enter and inspect the premises and having done so he telephoned the defendant in London and reported to her the condition of the premises as he had found them — how the beach bar had been torn down, the linen and kitchen equipment stolen, the lavatories and basins broken and the premises generally ransacked and damaged.

4 The defendant's reply and instructions to the plaintiff are an issue for determination because the plaintiff avers that the defendant instructed him to re-instate the property whereas the defendant says that she asked him to lock up the place and secure it. It is however admitted that she immediately sent him $500.00 to do the job. Whatever may have been operating in the defendant's mind, it is to my mind noteworthy that she cabled the plaintiff on the 12th August 1972 that is four days later, authorising him to act as her agent in matters concerning the hotel. The text of the cable reads: “Consider this authority for you to act as my agent in matters concerning Sebastians on Tortola — Catharine B. Sebastian.” and she follows up this cable with two other cables, one to the plaintiff requesting him to call her on the phone on the 15th August 1972, and the other to her solicitor in Tortola advising him of the appointment of the plaintiff as her agent in matters concerning the hotel.

5 On the 15th August, 1972 the plaintiff in pursuance of his instructions telephoned the defendant, but again, the parties are at variance as to the import of the conversation. The plaintiff contends that the defendant instructed him to re-instate the hotel with a view to having it open for business in time for the tourist season (November to April), but the defendant's version is that the plaintiff expressed the desire to open and operate the hotel and she agreed but it was never intended that the plaintiff would be operating it for her account. Very fortuitously, the defendant wrote the plaintiff a letter on the very next day, 16th August 1972, and in this letter can be found in my opinion some indication of what was operating in the defendant's mind. That letter reads:

“Dear Carl:

It is hard to know where to began with all the business at hand. To say I am in anguish is just about right. Somehow life isn't meant to go smoothly with me I guess. I once described it as leaping from crisis to crisis like a mountain goat. However, you are certainly the answer to a prayer and I will never be able to thank you enough for being there and protecting my interests as you are doing. I am thinking of non-stop and hope you will be able to find some pleasure along with the work.

I've written to Jim Bridgeman O.K.-ing the account at Caribbean and also offering him first refusal on buying Sebastian's. It would be wonderful if he would. I also suggested, if he is interested, he should talk to you about the prospect of your staying on (as manager) — No harm in talking.

Now concrete items.

Let's get an estimate of galvanizing the beach bar roof and plan to use thatch or something underneath. The combined cost should be very much than the thatch roof and not to bad to look at. Also we could catch water from the roof and flow it under to the cottage cisterns. (Let's not use Cyril Molyneau for anything)

Another...