Gomez et Al v Gomez

• Jurisdiction: Belize
• Court: Supreme Court (Belize)
• Judge: Awich J.
• Judgment Date: 26 January 2010
• Docket Number: 449 of 2000
• Date: 26 January 2010

Supreme Court

Awich, J.

449 of 2000

Gomez et al

and

Gomez

Appearances:

Mr. Orlando Fernandez for the claimants.

Mr. Linbert Willis for the defendant.

Contract - Partnership — Oral agreement — Claimant children of defendant working in business with father — Defendant expelling them from business — Claim for declaration that partnership existed and an account be taken and order made as to percentages of partners — Whether oral agreement for partnership — Interpretation of “everything was for us” — Whether meaning everything belonged to them in a partnership or as a family — Not itself sufficient proof that partnership existed — Partnership Act, ss. 3 and 4 — Partnership results from or is based on contract — Claim dismissed.

Awich J.

1 Notes: Partnership - The claimants who are children of the defendant worked in a business with their father; whether a partnership existed; whether there was an oral agreement or agreement by conduct to form a partnership; whether the evidence discloses intention to carry on the business in a partnership; an agreement per se is not a partnership; definition of a partnership; whether the business was carried on in common with a view of profit; the Partnership Act ss: 3 and 4, Cap. 259.

2 All the claimants: Jose Alfredo Gomez, Wilfredo Marcos Gomez, Jose Luis Gomez and Anna Maria Gomez are children of the defendant, Wilfredo Gomez Sr. He testified that in the nineteen sixties he started a business of repairing and selling used vehicles and spare parts; he operated from his house at No. 21 Keyhole Alley, Orange Walk Town, then he moved to St. Peters Street and then to Miles 53 Northern Highway. He said that at different times his children, Wilfredo Marcos and Jose Alfredo came and worked in the business. First Wilfredo Marcos joined and worked for wages, then Jose Alfredo joined and worked for wages. Mr. Gomez Sr. denied that Jose Luis and Anna Maria joined and worked in the business.

3 All the claimants jointly claimed that in 1987, they and their father formed a partnership they named Fido's and Sons, to carry on the business of repairing and selling used vehicles. They said that the partnership was formed by an oral agreement. It was their case that, the business started in 1987, when their father and Jose Luis purchased a used vehicle, repaired it and sold it to one, Walden Adolphus at a profit. They claimed that the business prospered, however, in March 1995, their father wrongfully expelled them from it, and did not pay them their shares in the partnership. They claimed further that, the business bought several vehicles and lands out of the profits made, which their father has wrongfully kept for himself alone.

4 The claimants sought as reliefs the following: (1) a declaration that the business known as Fido's, formerly Fido's and Sons, located at Miles 53 Northern Highway, Orange Walk, is a partnership; (2) a declaration that the claimants were partners in the business; (3) an order that account of the business be taken; (4) an order as to the percentage of each partner in the partnership; (5) an order that the partnership be dissolved; and (6) damages, interests and costs.

5 Mr. Gomez Sr. has denied the claim that, he and his claimant children formed a partnership by an oral agreement, or by “whatever means”. He said that the business belonged to him alone. He testified that the claimants never brought into the business any capital or expertise. He also contended that the claim was barred by s: 4(a) and (5) of Limitation Act, Cap. 132.

DETERMINATION

6 The defence that the claim was time-barred by ss: 4(a) and 5 of the Limitation Act, Cap. 170, fails. This claim based on contract, and for account to be taken of the business, can be time-barred only after six years from, “the date on which the cause of action accrued”, not from the date on which the agreement was made or the business was started. The cause of action accrued in March 1995, when, the claimants said, their father expelled them from the business. The claim was filed on 21.12.2000, five years and nine months after the cause of action accrued.

7 All the claimants, and the defendant testified. In addition, the defendant called his brother and one other witness. All the witnesses were subjected to extensive and rigorous cross-examination. Several documents regarding bank loans, title to property, income tax returns, and others were presented as evidence. In all, the evidence was voluminous.

8 The testimony of each claimant was comprised of standard statements about: how an agreement to form a partnership came about; the work done in the business by each witness; the success of the business; the description in income tax returns for four years, of Jose Alfred and Wilfredo Marcos as partners; the several properties bought out of the partnership money; and the utterance by the defendant that, “everything was for us”.

9 The testimony of the defendant was very detailed. He outlined his salaried employment and occupation, and progress from the age of 17 years, stating: where he was first employed; the jobs he performed; when he married; the locations where he lived; with whom he lived; how he started a side business of repairing and selling vehicles when he was employed as a driver; the progress of the business, and leaving his employment; the progress of each child at school to college, and two of them to university; the work that two of his children did in the business after leaving college; how he acquired each land that has been claimed; his divorce from the mother of the claimants; and the demand by the claimants for property and the business, which he refused.

10 Upon appraisal, the evidence that I accept is this. Mr. Gomez Sr. started to trade in used vehicles and spare parts when he was a young man employed in the Department of Lands and Surveys in the early sixties before the claimants were born. He left his employment and carried on the business full time. His income from the business and a small sugar cane farming provided maintenance for his family, and was used to educate all his children upto college. The costs of university education for two children were paid with scholarship awards.

11 By 1987, Mr. Gomez's business of repairing and selling used vehicles was very successful and had grown. He had been able to employ his brother, Manuel Grajalez, Polo Padron, and his two children, Wilfredo Marcos and Jose Alfredo, when they left college. He paid wages to Grajalez and Padron, and paid his two children regular sums which could be regarded as wages or allowances. When Jose Luis and Mr. Gomez Sr. went to the USA and brought a vehicle that was subsequently repaired and sold to Adolphus at a profit, it was not the start, but part of the usual business of Mr. Gomez Sr.

12 I accept that the business prospered, and that several properties including the lands that were enumerated were purchased mainly out of the income from the business. I do not believe though, that Mr. Gomez Sr. took title to the lands by “going behind” the claimants.

13 I concluded that Jose Luis worked in the business during his school holidays, and that Anna Maria also worked in the business at times, but not as regularly. I also accept that Anna Maria may have sometimes given some money to her father. She lived at the family home when she was employed as a teacher before she went to university and also for some time after she had completed university and was employed. There was no evidence apart from her word, that whatever money she may have given to her father was her contribution to the capital of the business.

14 I do not believe that Mr. Gomez Sr. had a meeting with his children in 1987, to discuss the success of the purchase, repair and sale to Mr. Adolphus of a vehicle; and that it was agreed that the father and the children would go into the business of buying and selling used vehicles. The business had long...