Baragwanath v Olifants Asbestos Co (Pty) Ltd

• Judge: Murray J, and Neser J
• Judgment Date: 14 May 1951
• Citation: 1951 (3) SA 222 (T)
• Hearing Date: 27 April 1951
• Court: Transvaal Provincial Division

G Murray J:

The plaintiff in the present matter (now excipient) issued summons against the defendant (now respondent) claiming payment of three sums of money (a) £2782 2s 4d as the purchase price of asbestos fibre sold and delivered to it by plaintiff; (b) £844 17s 1d as the H cessionary from one Roy Baragwanath of the purchase price of asbestos fibre by him sold and delivered to it; and (c) £606 8s 7d as repayment of a loan made by plaintiff to defendant company

The plea - to which in so far as concerns the first two sums of £2,782 2s. 4d. and £844 17s. 1d. the plaintiff now takes exception as being vague, embarrassing, bad in law and disclosing no defence

Murray J

- bases the defendant's answer to plaintiff's claim, as well as a counterclaim by it for £5,000, on various terms of a written agreement dated 5th February, 1949, entered into between four parties, viz. A plaintiff, defendant, one Rowan and one Miller. In essence the plea, while admitting the defendant's company's liability to plaintiff in regard to these two sums of money, alleges that by reason of certain pleaded provisions of the said agreement and in view of certain circumstances detailed in the plea payment thereof by defendant company is excused wholly or in part until the adjudication by the Court of its aforementioned counterclaim of £5,000.

B According to the plea the agreement in question provided that Rowan should advance the defendant company £5,000 for the purpose of erecting and equipping a certain asbestos mill and financing its operations. Plaintiff and Miller agreed to sell to the defendant company C the entire saleable output of any asbestos mine owned by either or both of them on the Malips Asbestos Field for a period of 10 years. The defendant company undertook to sell to Rowan all its milled asbestos (whether obtained before milling from plaintiff or Miller or any other supplier) for a period of 10 years as from 5th May, 1949 - with the D intention that by reselling the same and deducting a specified commission Rowan should secure repayment of his loan. Under clause 8 of the agreement plaintiff and Miller undertook to lend to the defendant company any capital in excess of the £5,000 lent by Rowan which it might require for the erection and equipment of the mill and the financing of its operations.

E The plea further alleged in para. 2 (c) that with Rowan's loan the mill had been erected and equipped and its milling operations initially financed, and generally speaking that the defendant company had been carrying on its milling operations as contemplated.

F The proceeds of its milled asbestos had been applied to repay a certain portion of Rowan's loan and the company's indebtedness to various creditors and to meet its expenditure in milling operations. In paras. 2 (e), (f) and (g) the following allegations are made:

'(e) Owing to the fact that the defendant for the purpose of financing its milling operations required capital in excess of the sum of £5,000 lent to it by the said Rowan, plaintiff, as G he was in terms of the aforesaid agreement obliged to do, lent and advanced to the defendant the sum of £606 8s. 7d.

(f) As at 15th August, 1950, the defendant was indebted to the said Rowan in the sum of £2,500, being the balance of the aforesaid loan then owing, and was further indebted to the plaintiff in the total sum of £4,233 8s. 0d. on the grounds set out in the plaintiff's declaration.

(g) On or about the 15th August, 1950, and at all material times since the defendant has required further capital to the extent H of at least £5,000 for the purpose of financing its milling operations, and on the 15th August, 1950, the defendant called upon the plaintiff to lend it the said sum of £5,000 for the said purpose.'

And in para. 3 the defendant company contends that the plaintiff in the premises is...