Burt NO Appellant v National Bank of South Africa Ltd Respondent

• Jurisdiction: South Africa
• Judge: Innes CJ, Solomon JA and Juta JA
• Judgment Date: 08 December 1920
• Citation: 1921 AD 59
• Hearing Date: 06 December 1920
• Court: Appellate Division

Innes, C.J.:

Save for what is called a "plea in bar," the defendant had no defence to the plaintiff's claim. That plea was overruled on grounds with which it is common cause that we cannot interfere. So that the only question remaining is whether the defendant should have been held protected by the tender on which he relied; and that depends on whether he accepted it. The plea is in terms based upon two letters, dated the 22nd April and the 30th May respectively, written by the defendant's attorneys to the plaintiff's attorneys. The first "without admitting any legal liability and solely with the view of ending the litigation" tendered capital and accrued interest UP to the 18th April, "costs of the action wholly unnecessarily instituted by your clients to be paid by them." The second was as follows: "In terms of our letter of the

Innes, C.J.

22nd ultimo, and subject to the conditions thereof, we now hand you defendant's cheque endorsed over to your clients for the sum of £4,291 12s." There was other correspondence both in the interim and thereafter, to which reference will be necessary; but the letters above quoted are relied upon as embodying the offer which the plaintiff is alleged to have accepted; and in the plea they are described as containing a tender, (a) in full settlement, and (b) conditional on the plaintiff undertaking to pay the defendant's costs. It is not contended by the respondent that the transaction was in substance an actual payment; and that he could therefore disregard the conditions which the appellant sought to attach to it: see Harris v Pieters. The parties are agreed that it was a tender, and upon that basis it is clear that if the plaintiff accepted it, he could not continue to sue for the balance of his claim. Either term of the offer would deprive him of that right. In Odendaal v du Plessis (1918, A.D., p. 470), this Court unanimously expressed the opinion that a plaintiff who accepted a tender in full settlement could not prosecute his action for the balance. And in Harris v Pieters that view was, by a majority, reaffirmed. So that if the offer had in the present case been made in full settlement, without any other condition, its acceptance would have precluded the continuance of the suit. But a further condition was super-added. It was stipulated that the money was tendered subject to an undertaking by the plaintiff to pay the defendant's costs. So that it is doubly clear that if the tender was duly accepted, any right to the balance was gone; which brings us to the enquiry whether it was so accepted. That is a matter which must always depend upon the declarations and conduct of the 'alleged acceptor, viewed in the light of relevant circumstances. Every case must be decided on its own facts; the object being in each case to ascertain whether the parties were ad idem. No doubt the acts of the person concerned are a most important element in arriving at the result. Often they are decisive; but not always; there may be other circumstances which preclude the usual inferences. Let me now consider the governing facts of the present dispute. The bank was suing for the repayment of advances with compound interest at agreed rates up to the date of payment. The defendant, in the first instance, filed a special plea to the effect that the action was premature; that plea he failed in the result to establish, and indeed his own dealings

Innes, C.J.

had rendered it impossible for the plaintiff to carry out what he alleged to be a condition precedent to the suit. Upon the merits he had no defence. And so far back as October 7, 1918, he intimated his intention of repaying the advances before the end of the year. This was not done, owing to disputes or misunderstandings between the parties, into which at this stage it is unnecessary to enter. The defendant's attorneys more than once suggested that in the event of a settlement their client would expect to be held harmless from costs, on the ground that the misunderstanding which had led to the initiation of proceedings was due to the fault of the plaintiff. But no encouragement...