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CIV/T/753/88

IN THE HIGH COURT OF LESOTHO In the matter
of:

LESOTHO SUN (PTY) Ltd Plaintiff

and

MAURICE
GREEN Defendant

JUDGMENT

Delivered by the Hon. Mr. Justice B.K. Molai on
the 8th day of December. 1995.

Plaintiff herein filed, with the Registrar of the High
Court, summons commencing an action in which it, inter alia._
claimed against the defendant, payment of M43,637-88

The declarations to the summons, as amplified by further
particulars, alleged that on 14th August, 1987 Plaintiff, a hotelier,
and
defendant entered into an agreement whereby the latter booked
into the former's hotel, as a quest, and duly signed a quest
registration
card (annexure "A"). Consequently

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defendant was accommodated at the hotel, supplied with
food, beverages and telephone services.

It was a specific term of the agreement between the
parties that the services rendered would be paid for by the defendant
upon presentation
of monthly statements from the plaintiff.
Accordingly Plaintiff presented various monthly statements (annexure
D) to the defendant
who, however, failed, refused and/or neglected to
pay, notwithstanding demand. The total amount owing was M43,637-88,
Wherefor, plaintiff
instituted the present proceedings for relief as
claimed in the Summons.

Defendant intimated intention to defend the action and
duly filed his plea in which he admitted that after he had signed
annexure
"A" he was accommodated in Plaintiff's hotel and
supplied with the other services as alleged in the declarations to
the
summons. According to defendant, it was understood, upon his
arrival at the hotel, that a certain Morrison E. Chamberlin, a United
States citizen who had previously made a booking through an Agency
known as "Travel agency" would be responsible for settling
the bill. He denied, therefore, the allegation that he had agreed
that he would pay for the services rendered to him by the Plaintiff.

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Defendant conceded that the monthly statements or bills
were presented to him by Plaintiff. He, however, alleged that the
statements
were presented to him only for their verification so that
they could be transmitted to the Credit Card Account of Morrison E.
Chamberlin
for settlement and/or payment. Defendant conceded that the
amount of M43,637-88 was still outstanding on his account. He,
however,
denied that he was, in law, liable to pay plaintiff as
claimed in the summons and prayed, therefore, that plaintiff's action
be dismissed
with costs.

P.W.1, L. Callaway, testified on oath, in support of
Plaintiff's case, and, briefly stated, told the court that she was
employed as
room division manager by the Plaintiff hotel since 1st
October, 1984. As such she (P.W.I) was responsible for the reception
and the
billing office of the plaintiff hotel. She was therefore,
familiar with the procedure followed when a quest checked in at the
hotel.

A quest had to complete, at the reception desk, a quest
registration card by which he furnished the hotel with his personal
details,
including the mode by which he proposed to settle his
account. After he had completed and signed the quest registration
card, the
key to the room allocated to him would then be handed to
the quest.

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According to the records under her (P.W.l's) control, on
arrival at the hotel, on 14th August, defendant did fill in and sign
a quest
registration card (Annexure "A") which was the
standard card in all the hotels, including those in America. He
proposed
to settle his account in cash.

During defendant's stay at the hotel P.W.I had, on
several occasions, the opportunity to discuss with

him the question of payment of his hotel bills.
Defendant's response had always been an assurance that payment would
be made and a
gentleman by the name of Morrison Chamberlin would
assist in that regard. Indeed, P.W.I subsequently saw two telex
messages, annexures
"C1" and "C2", from Morrison
Chamberlin and addressed to the attention of the Accounting
Department of the Plaintiff
hotel and the defendant, respectively.
The messages were to the effect that defendant's hotel expenses
should be billed to Morrison
Chamberlin's American Express Card
number and defendant was thereby authorised to sign the name of
Marrison Chamberlin.

According to her, P.W.I was personally unaware of
arrangements (if any) which defendant might have made with Morrison
Chamberlin regarding
settlement of the hotel bills. As far as she was
concerned, P.W.I held the defendant as the person who had contracted
with

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Plaintiff for his stay at the hotel. Defendant, and not
Morrison Chamberlin was, therefore, the person responsible for
settlement
of the hotel bills.

However, at the request of the defendant, P.W.1 prepared
a voucher with the details of Morrison Chamberlin's American Express
Card
number. She submitted the voucher to the American Express for
payment after the defendant had, as authorised, signed the name of
Morrison thereon. However, the American Express paid only a portion
of the bill. It refused to pay the bill from 15th November, 1987
to
26th December, 1987. P.W.1 then wrote, again at the request of the
defendant, to Morrison Chamberlin who replied per his letter
of 22nd
February, 1988. The letter reads in part:

"Dear Mr. Callaway,

Thank you for your message of 17 Feb 1988 concerning Mr.
Maurice Green's Dec 1987 bill at the Lesotho Sun Hotel in the amount
of 13,658.89
Rand. Please be assured that the bill will be properly
resolved once I receive clarification from American Express.

I have discussed this bill with American Express on many
occasions since Mr. Green brought this matter to my attention. Also,
I have
asked that you forward a copy of the bill to me each time that
I have spoken to Mr. Green. Thank you for your assistance. American
Express has, upon each inquiry, advised me that they have paid all of
Mr. Green's bills through Dec 1987. I have asked American Express
to
send me information verifying that statement. The last request was
made on 12 Feb 88. As of

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this date, I am still waiting. Another request will be
made. May I again ask that you assist me by forwarding to me a line
by line
itemized statement for each month of Mr. Green's stay. Such a
statement would help me in discussing the billing with American
Express.
Immediately upon receipt of the information from you and
American Express, I will communicate with you.

Let me again assure you that Mr. Green's charges will be
paid. Thank you for your cooperation. I await your reply and billing
data.
(Please provide a copy of this message to Mr, Green.)

Respectfully,

Morrison E. Chamberlin"

Plaintiff continued to accommodated defendant at the
hotel with the hope that the hotel bills would be settled. However,
only the
bills for the period from 27th December, 1987 up to the end
of February 1988 were settled, through the American Express. The
bills
for the period from March, 1988 onwards plus the bill which the
American Express had refused to settle i.e. for the period from 15th
November, 1987 to 26th December, 1987 were never settled.

Attempts to call the defendant before the general
manager of the Plaintiff so that the question of payments of his
hotel bills could
be discussed proved fruitless as defendant was
avoiding speaking to the manager. On 21st September, 1988 defendant's
room was double
locked so that he could go to the office of the
general manager and discuss payment of his hotel bills

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before going into the room. Defendant then bilked from
Plaintiff's hotel leaving an outstanding balance of M43,637-88. Hence
the institution
of the present

proceedings for relief as claimed in summons.

In his defence the defendant testified on oath and told
the court that he was a citizen of the United States of America and a
business
consultant. He was employed by Morrison Chamberlin, who had
an agency agreement with Nair Chemicals company, to negotiate with
the
Government of Lesotho the terms and viability of establishing a
cement plant in Lesotho. Morrison Chamberlin was to give him cash
for
his personal needs whilst in Lesotho. In the event of his being
successful in the negotiations defendant and Morrison Chamberlin
were
to share on equal basis, the profits that would accrue.

According to him defendant left home for Lesotho on 12th
August, 1987. On arrival in Lesotho he was to report at Plaintiff
hotel where
Morrison Chamberlin had made reservations for him. He
personally did not know what arrangements Morrison Chamberlin had
made with
the Plaintiff hotel concerning the settlement of the hotel
bills. However, on his arrival in Lesotho on 14th August, 1987
defendant
did report himself at the reception desk of the plaintiff
hotel where he was given a quest registration card (annexure "A")
to

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"A" after which he was given a key to the room allocated to
him.

According to him, defendant was, on arrival at the
hotel, very exhausted and did not, before signing it, read the small
print on annexure
"A" which was retained at the reception
desk. Nor did he remember how he had ticked the boxes indicating how
his hotel
account would be settled. His intention was, however, to
indicate that the account would be settled by credit card.

In the contention of the defendant there was no contract
of lodging concluded between him and the Plaintiff hotel. The
contract was
concluded between the Plaintiff and Morrison Chamberlin.
Morrison Chamberlin, and not him (defendant), was, therefore, the
person
responsible for settlement of the hotel account.

It is to be observed that it is not really disputed that
on his arrival at the Plaintiff hotel, on 14th August, 1987, the
defendant
and not Morrison Chamberlin was the person who completed
and signed the quest registration card, annexure "A", on
which
he clearly ticked the box indicating that his hotel account
would be settled in cash. That granted, the

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defendant and not Morrison Chamberlin, was, in my
finding, the person who had contracted with the Plaintiff hotel.

It is significant that annexure "A"
incorporates

the following condition written, in small print, on its
face:

"This account remains the responsibility of the
quest until payment in full is received, notwithstanding the fact
that the quest
may have incurred the charges on this account in the
course and scope of his employment or service to any company,
business or person."

As it has been stated earlier, defendant told the court
that he signed annexure "A" without reading the small print
thereon
because he was, on his arrival at the hotel, very exhausted.
For that reason he considered himself not bound by the condition
incorporated
in annexure "A",

The question whether or not a person who has signed a
document, such as annexure "A", can claim that he is not
bound by
it, simply because he did not read what he signed was
authoritatively answered by Innes, C.J. in the decision of Burger
v. Central

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S.A.R. 1903 T.S. 571 where the learned Chief
Justice had this to say at page 578:

"Can a man who has signed a document in the form of
the one now before court claim that he is not bound by it, simply
because
he did not read what he signed and did not know what the
document referred to? Had the regulations alluded to in the
consignment
note been annexed to it or printed upon it there could
surely have been no doubt as to the signatory being bound."

In the present case the condition that the account
remained the responsibility of the defendant, as a quest of the
Plaintiff hotel,
until payment in full had been received was printed,
in small print, on the face of annexure "A" and the
defendant's eyes
could not have escaped to notice it. On the
authority of the above cited passage from burger's case there can be
no doubt that the
defendant who admittedly completed and signed
annexure "A" is bound. The fact that, for the reasons he
has stated, the
defendant did not read the condition on the face of
annexure "A" is immaterial. As Christie put it at page 203
of his work
The Law of Contract (2nd Ed.) the attitude of the
defendant is understood to have been: "I haven't read this
document but I'm signing it because I'm
prepared to be bound by it
without reading it".

Be that as it may, defendant went on to testify that,
during his stay at the Plaintiff hotel, P.W.I

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did discuss with him the question of his outstanding
hotel account. Re asked P.W.I to get in touch with Morrison
Chamberlin about
the matter. Defendant conceded, therefore, the
evidence of P.W.I that it was on his request that she addressed, to
Morrison Chamberlin,
the letter whose reply, dated 22nd February,
1988 was quoted earlier in this judgment.

Following that reply, Morrison Chamberlin and an
associate of his by the name of Dr. Drees who, to the recollection of
the defendant,
arrived in Lesotho on 10th July, 1988, settled some of
the hotel bills. Defendant did not, however, dispute that when he was
double
locked out of Plaintiff hotel in September, 1988, an amount of
M43,637-88 was still outstanding on his account and, therefore, owing
at the time summons was issued in this matter.

In the contention of the defendant, Morrison Chamberlin
had, on the basis of his reply letter dated 22nd February, 1988, been
substituted
as the debtor and, therefore, the person responsible for
settling the hotel account. If Morrison chamberlin subsequently
defaulted.
Plaintiff could not properly turn to him (defendant) for
settlement of the outstanding account.

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It is to be borne in mind that in her evidence P.W.I
told the court that plaintiff never considered the reply letter dated
22nd February,
1988 to substitute Morrison Chamberlin for the
defendant as the debtor or the person responsible for settlement of
the hotel account.
As far as P.W.I was concerned, the account
remained, in terms of the condition incorporated in annexure "A",
the responsibility
of the defendant, as the quest of the hotel, until
payment in full had been received by the Plaintiff hotel. She denied,
therefore,
defendant's contention that Morrison Chamberlin had, on
the basis of his reply letter dated 22nd February, 1988, been
substituted
as the debtor and, therefore, the person responsible to
settle the hotel account.

Assuming, for the sake of argument, that Morrison
Chamberlin's reply letter, dated 22nd February, 1988, was intended to
substitute
him for the defendant as the person responsible to settle
the hotel account, it is significant to observe that there is, on the
evidence,
no proof that Plaintiff had consented to the substitution.
Morrison Chamberlin could not, in my view, be substituted for the
defendant
as the debtor or the person responsible for settlement of
the defendant's hotel account without the consent of the plaintiff. I
am
fortified in this view by the decision in Rolfes Nebel &
Co. v. Zweigenhaft 1903

13 T.S. 185 of which the headnote clearly reads:

"By Roman-Dutch law a debtor cannot get rid of his
obligation to his creditor without the consent of the latter."

From the foregoing, I have no alternative but to come to
the conclusion that Plaintiff has, on a balance of probabilities,
proved
its case. Consequently I would give judgment for the Plaintiff
with costs.

B.K. MOLAI

JUDGE
8th December, 1995.

For the Plaintiff : Mr. Harley For Respondent : Mr.
Peete.