Brinkman v McGill

• Jurisdiction: South Africa
• Judge: De Villiers CJ, Curlewis JA and Roos JA
• Judgment Date: 29 April 1931
• Citation: 1931 AD 303
• Court: Appellate Division

Roos, J.A.:

Appellant was one of the two defendants in the Eastern Districts Local Division, the other being on E. A. Kern in an action instituted for the recovery of the sum of £750 with interest, less £50 paid on account, alleged to be due in respect Cf a suretyship transaction. Judgment was given against them for the amount claimed and only appellant appeals against this judgment.

The debt was due by a certain Mrs. Watters, and the document signed by her and by the appellant was drawn up by appellant and forwarded by him to respondent. It reads as follows:

"I, the undersigned, Gertrude Ethel Watters, born Love, married out of community of property to Henry Loch Watters and assisted by him, acknowledge myself to be indebted to Mr J. McGill of Quamanco, in the sum of seven hundred and fifty pounds (£750) sterling, for cash lent and advanced, which I promise to repay him at Quamanco, together with eight per cent. (8 per cent.) in the following manner: "A sum of not less than £50 per year during the first two years, and thereafter a sum of not less than £100 per year until the whole amount is paid off in full. "It is an express condition of this loan that it shall be included in the amount of the Mortgage Bond to be passed by me in favour of the said Mr. H. McGill on the property, Banzi, bought by me from Messrs. Love Brothers, that is to say, the bond will have to be passed for the sum of £2,750 which will then include this loan of £750. "Should the interest in the said loan, or the instalments as above specified, not be paid on due dates, the whole amount Of the bond to become payable forthwith. "Dated at Queenstown this 21st day of July, 1927.

(Sgd.) G. E. Watters assisted by me, (Sgd.) H. L. Watters.

Roos, J.A.

"We, the undersigned, hereby bind ourselves as sureties in solidum for the due payment of the said sum of seven hundred and fifty pounds sterling with the interest as above set forth.
	(Sgd.) L. H. Brinkman. (Sgd.) E. A. Kern."

Upon receiving these documents the money was advanced by respondent. The amount of £2,750 referred to in the acknowledgment of debt included an amount of £2,000 advanced to Mrs. Watters by respondent to purchase the trading station at Banzi. Respondent was satisfied that he would be secured for this £2,000 by a bond upon the station which bond he also held from Mrs. Watters' predecessor in title, but he wished to obtain security for a further amount of £750 which Mrs. Watters required before she could start business there. The purchase price of the station was £2,250 in all and the balance of £250 over and above the existing bond was paid by respondent out of the £750 advanced by him, for which amount appellant and Kern stood security. There s nothing to show when the £250 and another amount of £252 10s were paid but the balance of the £750 viz., £247 10s was sent by respondent to appellant on the 5th August, 1927. The first amount of £50 due in terms of Mrs. Watters' acknowledgment of debt was paid by her and thereafter in July, 1929, her estate was sequestrated as insolvent. Respondent claimed in her estate for the full amount of the bond less £50 and offered cession of the claim in respect of £750 less £50, to defendants against payment by defendants of the amount due by her under her acknowledgment of debt.

Defendants set up various defences in the court below which are grouped together by his counsel on appeal under four main headings as follows:

(1)

Defendants' liability as surety was subject to the condition that a mortgage bond would be passed over the property Banzi referred to in the acknowledgment of debt. As a matter of fact Mrs. Watters to the knowledge of respondent only possessed trading rights of occupation over the property named, was thus unable to pass a mortgage bond and only passed a notarial bond on the 30th August, 1927. As the condition on which the defendants bound themselves was not fulfilled they were discharged. Appellant therefore claims that on this ground he is discharged from liability.

Roos, J.A.

(2)

Even if it had been agreed that a notarial deed should be passed it was also agreed and undertaken by respondent that immediately title was issued a mortgage bond over the immovable property "Banzi" would be passed to protect the sureties as well as for his own protection. The notarial bond also included a clause to this effect. Title was issued to the debtor in April, 1929, and her estate was sequestrated in July, 1929, without the mortgage bond having been passed.

It is claimed that owing to the neglect of the respondent to procure the passing of the mortgage bond before insolvency, appellant is discharged.

(3)

The terms of the principal obligation were materially altered by the subsequent notarial bond, passed by the principal debtor, Mrs. Watters, to respondent without...