Beckwith v Foundation Investment Co

• Jurisdiction: South Africa
• Citation: 1961 (4) SA 510 (A)

Beckwith v Foundation Investment Co
1961 (4) SA 510 (A)

1961 (4) SA p510

Citation	1961 (4) SA 510 (A)
Court	Appellate Division
Judge	Steyn CJ, Hoexter JA, Ogilvie Thompson JA, Malan AJA and Holmes AJA
Heard	November 25, 1960
Judgment	December 5, 1960

Flynote : Sleutelwoorde

Principal and agent — Mandate to sell at a fixed amount — Purchaser making deposit — Balance of purchase price to be paid in instalments — Purchaser defaulting — Agent entitled to retain B amount of his commission.

Headnote : Kopnota

The appellant had given the respondent a mandate authorising it to sell her property for £3,000 and all moneys and benefits over such sum to be treated as commission, which sum 'may be deducted from the purchaser's C deposit'. The respondent had obtained a buyer for £3,300: he agreed to pay a deposit of £400 and £20 per month over a period of four years and the balance of the purchase price after the expiry of the four years. After paying the initial deposit and instalments for one year, the purchaser defaulted and he forfeited the deposit made. The respondent had retained £300 and had paid the amount of £100 to the appellant. The appellant had unsuccessfully sued the respondent in the magistrate's court for the balance, which judgment was upheld on appeal. In a further appeal,

Held, as the respondent had discharged the onus of proving that the D purchaser, when he signed the contract of sale, was able to pay the amounts stipulated as they fell due, that the appellant could not recover the commission which she paid to the respondent when it was both due and payable.

The decision in the Transvaal Provincial Division in Beckwith v Foundation Investment Co., confirmed. E

Case Information

Appeal from a decision in the Transvaal Provincial Division (DE WET, J., and ROPER, A.J.), dismissing an appeal from a decision in a magistrate's court. The facts appear from the judgment of HOEXTER, J.A.

G. Colman, Q.C. (with him G. Leveson), for the appellant: The moneys F claimed by appellant (as being part of the deposit), as moneys received by respondent as her agent and on her behalf, were so received and the burden rested on respondent to show a contractual right to retain those moneys for its own benefit; see Gluckman v Landau & Co., 1944 T.P.D. at pp. 267, 280; Luxor v Cooper, 1941 (1) A.E.R. at pp. 40, 41, 58. When, G in such a case the contract is ambiguous, the defendant must fail; see Diamond v Kernick, 1947 (3) SA 83. This proposition is of even greater force in the present case because the wording of the contract was chosen by respondent, so that the contra stipulatorem rule applies. The expression 'all moneys and benefits over and above the aforementioned sum' means 'all moneys and benefits received' not 'all H moneys and benefits promised'. This interpretation is consistent with the view expressed by this Court in Diamond's case, supra at p. 79, and by the House of Lords in Luxor's case, supra at pp. 42 - 3. As to whether this interpretation is to be reversed by reason of what appears in the remaining part of the contract, the provision for deduction was procedural only and did not add to, or enlarge respondent's rights. Compare the reverse situation in van Heerden v Hermann, 1953 (3) SA at pp. 184, 186, 189. See also Poole v Clark & Co., 1945 (2) A.E.R. at pp. 447 - 8. Gowan v.

1961 (4) SA p511

Bowern, 1924 AD 550, which was relied on by the magistrate, supports appellant on a proper analysis. Benningfield v Kynastor, 3 T.L.R. at pp. 279, 280: Boots v Christopher & Co., 1951 (2) A.E.R. at pp. 1047 - 50, also support appellant. Alternatively, respondent can retain nothing A on account of its remuneration unless it shows that its mandate was fulfilled. Its mandate was not merely to find a purchaser who would sign a deed of sale but also to find a purchaser who would be able to carry out his obligations; see Gluckman's case, supra at p. 292: Smith v James. 1931 (2) K.B. at pp. 318, 322; Martin v Perry and Daw. 1931 (2) B K.B. at p. 316; Waks v Record, 1955 (2) SA at p. 238: Poole's case, supra; Boots' case, supra at p. 1048.

D. S. Levy, for the respondent: Subject to any further agreement between the parties, the construction of the agreement of 9th January, 1957, is decisive of the issues between them; see Gowan v Bowern, supra. at p. 563: Brayshaw v Schoeman en Andere, 1960 (1) SA 625; Boots v. C Christopher & Co., supra at p. 1046. In their context, the words in the agreement 'net sum of £3,000' referred to as 'the aforementioned sum' in the phrase 'all moneys and benefits over and above the aforementioned sum' do not refer to the amount actually paid but simply to the amount agreed to be paid; see Gluckman v Landau, supra at pp. 291 - 2. There D is no indication in the agreement that in a sale on terms respondent would not become entitled...