Bowleg v Citibank N.A.

• Jurisdiction: Bahamas
• Court: Supreme Court (Bahamas)
• Judge: Malone, SNR. J.
• Judgment Date: 01 June 1988
• Docket Number: Common Law Side No. 101 of 1980
• Date: 01 June 1988

Supreme Court

Malone, Snr., J.

Common Law Side No. 101 of 1980

Bowleg

and

Citibank N.A.

Appearances

Mr. V. Wallace-Whitfield, Jnr. for the plaintiff

Mrs. C. Lashley for the defendant

Contract - Breach — Damages — Sale of house and land — Judgment for the plaintiff

Malone, SNR. J.

1 This is an action for damages for breach of a contract for the sale of a house and lot of land on Grenada Avenue in Freeport, Grand Bahama. The history of the action begins with a document describing itself as an “Agreement of Purchase and Sale and Deposit Receipt”, (“the Agreement”). That document is dated the 15 ^th March, 1978 and was signed by Harry Dann, the plaintiff, Charles Bowleg and William Keesee. Mr. Keesee at that time was the defendant's manager. Mr. Dann of the real estate company, Universal Properties and Investments Limited, (“the Company”) represented that company on whose books the house and lot were listed for sale, and the plaintiff was the potential purchaser. Mr. Bowleg was the plaintiff's former husband. Just why he was signatory to the document is somewhat obscure. The explanation given is that he signed as an intended guarantor of the mortgage financing the plaintiff was to obtain. In fact, a mortgage to finance the purchase of the property was never arranged.

2 Provisions of the Agreement relevant to the consideration of this matter are:

1

an acknowledgement of the receipt from the plaintiff of a deposit of $8,000.00 to be held in escrow by the Company on account of the purchase price; 2. an agreed purchase price of U.S. $33,000.00 or the Bahamian currency equivalent at the Bank selling rate at time of payment; 3. the following Term and Condition: “All cash at closing, subject to purchasers obtaining a first mortgage”. 4. the following stipulations, viz: (i) closing was to take place in Freeport on (or about) 1st June, 1978. (ii) “Sale will be conditional upon Seller conveying a title free and clear of all incumbrances, except as herein set forth”. (iii) “Purchaser agrees to pay the balance due and execute all papers necessary to be executed by him for completion of his purchase at closing”. (iv) “In event this offer is not accepted on or before 15th May, 1978 the above deposit shall be returned forthwith to the Purchaser who will in that event be released from all obligations under the terms of this deposit receipt. It is further agreed that in event this offer is accepted and in case of default by the Purchaser the Escrow Agent shall pay to the Seller one half of deposit herein paid as consideration for relief of the Purchaser by the Seller from any and all future obligations under this contract to the Seller; and one half to the Broker as consideration for his time and effort and the Purchaser shall be released from any and all future obligations to the Broker. Time is of the essence and this contract shall be binding on the Purchaser, his heirs and/or assigns”.

3 It is not in dispute that the plaintiff's offer was accepted prior to the 15 ^th May, 1978, for as the defendant's witness Mr. Cartwright declared: “By signing the document, Citibank accepted the offer based on the terms stipulated”.

4 Whether that acceptance resulted in a binding legal relationship will be considered later. It was, however, disputed that a deposit of $8,000.00 was made by the plaintiff. That was the position adopted by Mrs. Lashley when she said: “My case is that Mrs. Bowleg made a deposit of $2,000.00 and was refunded”.

5 The figure of $2,000.00 is based on the fact that the Agreement shows that on the line reserved for the name of the purchaser, “Two Thousand” was typed and then crossed out. It is, however, not pleaded that a deposit of $2,000.00 was made and refunded, nor was any evidence led that supported the position adopted by Mrs. Lashley or in any way cast doubt on the Agreement and the plaintiff's evidence that she had made a deposit of $8,000.00 which had not been refunded to her. In addition to claiming the deposit of $8,000.00, the plaintiff also claims $47,000.00 with interest from the 1 ^st June, 1978 to date of judgment on the whole amount of $55,000.00 and damages. The $47,000.00 represents, it is pleaded, the difference between the contract price and the estimated market value of the house and land.

6 The facts on which the plaintiff relies to prove her case fall principally into two groups. The Agreement constitutes one of those groups. The events, which took place on the 31 ^st May, 1978 constitute the other. On that day two letters were exchanged by Mr. Keesee and Mr. Gape of the law firm of Dupuch and Turnquest, and a third was sent on behalf of Mr. Keesee to the Freeport Power Company. The first of the three letters is from Keesee to Mr. Gape. It confirms that the defendant is prepared to exercise its power of sale and to sell the property of the Agreement to Mr. Gape's client, Mrs. Strong, for U.S.$26,000.00 cash: “provided closing takes place in escrow no later than Wednesday, 31 ^st May, 1978”.

7 In reply Mr. Gape wrote to Mr. Keesee informing him that Mrs. Strong had placed with Dupuch and Turnquest, U.S.$26,000.00: “representing the total consideration payable therefore”.

8 The letter confirms:

“that this sale is subject to vacant possession being delivered to our client and that the property is to remain at the Insured risk of Citibank pending final completion which once good and marketable title has been given to our satisfaction shall take place within fourteen days when the funds will be paid over to yourselves”.

9 The letter continues as follows:

“We understand that the Bank will pay the usual Vendor's portion of the Stamp Duty on the Conveyance and that our client is taking subject to Customs Duties payable on the premises, if any, and that our client shall be entitled to possession of the premises as from today's date”.

10 The third letter advised the Freeport Power...