Blaikie-Johnstone v Holliman

• Jurisdiction: South Africa
• Judge: Leon J
• Judgment Date: 30 July 1971
• Court: Durban and Coast Local Division

Leon, J.:

In this action the plaintiff has claimed the sum of B R2 261, interest, and costs for the defendant. The plaintiff alleges in its declaration that from about the 27th June, 1968 to about the 25th January, 1969, the plaintiff supplied certain materials and rendered certain services to a company called Harmonious Homes and Gardens (Pty.) Ltd. (hereinafter referred C to as Harmonious Homes) in connection with the erection by it of a dwelling house for the defendant at 93 Haygarth Road, Kloof, Natal. It is alleged that the total amount payable to the plaintiff in consequence of the supply of the materials and the rendering of the services was the sum of R6 376,19. Of that amount the plaintiff was obliged to give and gave credits in the sum of R15,19 and has been paid the sum of R4 100 by the D defendant. The sum of R2 261 is the balance remaining unpaid.

According to the declaration the defendant is said to be liable either

(a)

because on or about 8th October, 1968 he orally agreed with one Day in Durban that he would pay the plaintiff the amounts due in respect of all materials actually E supplied and services actually rendered by the plaintiff to Harmonious Homes in connection with the said dwelling, or

(b)

because of a letter written by the defendant to the plaintiff dated 8th October, 1968 read with a letter referred to therein dated 12th August, 1968, and the tacit acceptance by the plaintiff of the undertaking F contained in the letter.

Before pleading, the defendant sought further particulars of the alleged oral contract and of the plaintiff's acceptance of the alleged undertaking in the letter of 8th October, 1968. In response to that request, the plaintiff alleged in para. 1 (b) of its further particulars that the oral contract was entered G into shortly before 8th October, 1968. With regard to the acceptance of the alleged undertaking the plaintiff averred in para. 2 of its further particulars that its acceptance of the alleged undertaking was communicated to the defendant and that

"the plaintiff's tacit acceptance of the said undertaking was communicated to the defendant by the fact that to the knowledge of the defendant the plaintiff continued to supply materials H and services to Harmonious Homes after receipt by the plaintiff of the letter a copy of which is annexure 'B' to the plaintiff's declaration".

On 24th November, 1969 the defendant requested further particulars to enable him to prepare for trial. Inter alia, he requested information regarding the alleged oral contract entered into shortly before 8th October, 1968. In reply to that request the plaintiff alleged that the oral contract was entered into during the course of a telephone conversation between the defendant and Day when the defendant unconditionally

Leon J

agreed to pay for materials supplied and to be supplied and for services rendered and to be rendered. That reply is dated 8th January, 1970.

In his plea the defendant alleged that the house was erected for his wife and not for him. (This was common cause at the A trial and nothing turns on it). He denied the oral contract alleged by the plaintiff. He admitted writing the two letters in question but denied that he had ever agreed to be personally liable to the plaintiff for any amount due in respect of materials supplied and services rendered by the plaintiff to Harmonious Homes in connection with the erection of the B dwelling. He put in issue the matter as to whether the sum of R6 376,19 represented the total amount payable to the plaintiff in consequence of the supply of materials and the rendering of services in connection with the erection of the dwelling by Harmonious Homes. He admitted that he had paid the plaintiff the sum of R4 000 but alleged that he had paid that C sum not on his own behalf but on behalf of Harmonious Homes. The defendant accordingly decided that he was liable to the plaintiff either in the sum claimed or at all.

In order to curtail the duration of the trial, the plaintiff abandoned its claim in respect of certain work and materials thereby reducing it to R2 171,68. The defendant, despite his D plea, also agreed that the materials (save those abandoned by the plaintiff) reflected in the invoices on which the plaintiff's claim is based were ordered by Harmonious Homes to be delivered at the defendant's wife's property and were delivered at that address. A similar admission was made by the defendant with respect to the services rendered. A document E reflecting these matters was handed in at the trial. At that stage, however, the defendant still left in issue the question as to whether certain materials were ordered for use in the building of his wife's house or whether they were, in fact, so used.

It appears from the evidence of Truck, who testified on behalf F of the plaintiff at the trial, that certain materials, which did not amounts to more than R200, which had been ordered by Harmonious Homes for the defendant's wife's house were not used for the building of that house but were removed from the site. During the argument it became common cause between counsel, in the light of that evidence, that, if I held that the defendant G was liable, then judgment should be given in favour of the plaintiff in the sum of R1 971,68 (i.e. R2 171,68 less the sum of R200).

On the first day of the trial Mr. Raftesath, who appeared for the plaintiff, applied to amend para. 6 (1) of the declaration by adding the following words:

H "in the light of the fact that at the time each of the letters was written the plaintiff was supplying Harmonious Homes with materials and services in connection with the erection of the house at 93 Haygarth Road by Harmonious Homes in terms of a contract between Harmonious Homes and the defendant and the defendant was aware that the plaintiff would not continue supplying Harmonious Homes with materials and services unless the defendant agreed with the plaintiff to make the payments reflected in annexure 'B' and 'C' direct to the plaintiff."

That amendment was granted causing the defendant to amend his plea. In that amendment the defendant:

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(a)

admitted that at the time each of the letters was written the plaintiff was supplying Harmonious Homes with materials and services in connection with the erection of the said house;

(b)

denied that he was at the time alleged in sub-para. 6 (1) of the declaration or at any other material time A aware that the plaintiff would not continue supplying Harmonious Homes with materials and services unless the defendant agreed with the plaintiff to make the payments reflected in annexures "B" and "C" direct to the plaintiff;

(c)

denied in any event that the alleged surrounding circumstances pleaded in sub-para. 6 (1) of the B declaration give rise to the interpretation of the letters alleged by the plaintiff.

With regard to the matters raised by the amendment, there was a conflict on the evidence between Day, who gave evidence for the plaintiff, and the defendant. Mr. Raftesath conceded that on the evidence he had been unable to establish that the defendant C possessed the knowledge referred to in the amendment. Mr. McCall, for the defendant, agreed, however, that if the letters, without the aid of surrounding circumstances, bore the interpretation which the plaintiff sought to place on them before the amendment was applied for, it would be proper for me D to find in favour of the plaintiff on that point.

By reason of the admissions on the pleadings and that part of the evidence which was not disputed by either side it can, I think, fairly be said that the following are the main matters which are common cause in this case:

(1)

On 17th June, 1968, the defendant's wife and Harmonious Homes entered into a building contract for E the building of a house at 93 Haygarth Road, Kloof, Natal.

(2)

The managing director of Harmonious Homes, one Truck, had a substantial debit account with the plaintiff at the end of July, 1968 in the sum of R8 934,23.

(3)

The plaintiff supplied materials and services to F Harmonious Homes for the defendant's wife's house from about 27th June, 1968 to about 25th January, 1969.

(4)

That supply of materials and services was never interrupted by the plaintiff.

(5)

The defendant was informed by Truck that the latter G wished to reduce his account with the plaintiff.

(6)

Shortly before 12th August, 1968 the defendant orally agreed with Truck that he would pay 60 per cent of the draws, which he would receive from the building society for the building of the house, direct to the plaintiff.

(7)

On 12th August, 1968 the defendant wrote a letter to H the plaintiff.

(8)

On 8th October, 1968 the defendant wrote a letter to the plaintiff.

(9)

At the time when the second letter has written the defendant believed that there would be sufficient money out of the contract price to pay for the actual materials supplied and services rendered.

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(10)

At no time did the plaintiff, either orally or in writing, inform the defendant whether or nor it assented to or disagreed with what the defendant had written in the letters of 12th August, 1968 and 8th October, 1968.

(11)

A On 7th November, 1968 a meeting took place between Day (representing the plaintiff), and Turck and the defendant. At that meeting there was a discussion concerning the amounts paid under the building contract and the amounts still to be paid. There was no discussion concerning the letters of 12th August, B 1968 and 8th October, 1968. Day did not refer to them.

(12)

On 7th November, 1968 Turck wrote a letter to the plaintiff. On the same day the plaintiff advised the defendant of that letter in a letter to him.

(13)

On about 11th November, 1968 the plaintiff received a C letter from Byron and Holmes acting for Harmonious...