Caterers Ltd v Bell and Anders

• Jurisdiction: South Africa
• Citation: 1915 AD 698

Caterers Ltd Appellant v Bell and Anders Respondent
1915 AD 698

1915 AD p698

Citation	1915 AD 698
Court	Appellate Division, Bloemfontein
Judge	CJ Solomon JA, CG Maasdorp JA, Juta AJA and AFS Maasdorp Acting AJA
Heard	November 16, 1915
Judgment	November 24, 1915

Flynote : Sleutelwoorde

Payment — Recovery of — Protest — Duress — Condictio indebiti — Principal and agent — Ratification of unauthorised act — Estoppel.

Headnote : Kopnota

The defendants, a firm of attorneys, were employed by the H company to pass transfer of certain lots of ground to various purchasers, one of whom was the plaintiff company. The defendants, having prepared the deeds of transfer, refused to deliver them to the H company until their charges had been paid or secured. Disputes having arisen, the defendants issued summons against the H company for the recovery of such charges. Thereafter, one K, acting on the instructions of the chairman of the H company, paid the amount claimed by the defendants in two instalments on the same day. The first instalement was paid ostensibly on behalf of the plaintiff company, and with a reservation of its right to recover it, in order to obtain delivery of the transfer deed of plaintiff's property.

At the time this payment was made, the plaintiff company had been registered, but no directors or other officials had been appointed, nor had the company any knowledge of the payment purporting to be made on its behalf, which was so made out of funds supplied by the chairman of the H company.

The plaintiff company having brought action to recover the money paid on its behalf as having been paid under duress,

Held, on the facts, that the payment on behalf of the plaintiff company was not made bona fide, and as the plaintiff company neither authorised nor had power to authorise the payment to be made, the plaintiff was not entitled to succeed.

Per INNES, C.J.: That as at the date of the payment the plaintiff company had no right in law to claim the transfer deed from the defendants, the amount paid could not be recovered by means of a condictio indebiti.

Per SOLOMON, J.A.: That though the payment to be made on behalf of the plaintiff company as it was actually made on behalf of the H company, it could not be ratified by the plaintiff company so as to become its act.

Per C. G MAASDORP, J.A.: That the plaintiff company was in no better position than the H company, which could not have recovered the amount, paid as paid under duress.

The decision of the Transvaal Provincial Division in Caterers Ltd. v Bell and Anders confirmed.

Case Information

Appeal from a decision of the Transvaal Provincial Division (DE VILLIERS, J.P., MASON, J., and GREGOROWSKI J.).

The plaintiff company sued the defendants to recover £45 3s., alleged to have been paid to the defendants under protest. It

1915 AD p699

appeared that the defendants were conveyancers, who had been employed by a company known as the Henley-on-Klip Township Company, the sellers to the plaintiffs of certain property at Henley-on-Klip. The property was sold in October, 1913, and was registered in the name of the plaintiffs in October, 1914. The defendants refused to deliver the title deeds to the Henley-on-Klip Company unless the amount of their charges was paid or secured. After certain negotiations and the issue of a summons, one Kennerly, an attorney practising in Pretoria, purporting to act on behalf of the plaintiffs, paid the defendants £45 3s., being £15 3s. charges in respect of plaintiffs' title deed and £30 costs. At the hearing, the amount claimed was reduced from £45 3s to £16 8s. 11d.

The Trial Court gave judgment for the defendants, and the plaintiff company appealed.

The facts of this case are stated in the judgment of INNES, C.J.

H. Kent (with him B de Korte), for the appellants: An act done under duress can be ratified so as to give the person ratifying the right to recover. The respondents, by accepting payment from attorneys purporting to act on behalf of appellants, are estopped from denying that the money was paid by appellants. See. Biddle v Bond (34 L.J.Q.B. 137); Laing v Caledon Municipality (19 C.T.R. 599); Ex parte Davis (19 Ch. D. 86); Simm v Anglo-American Telegraph Co. (5 Q.B.D at p. 206).

A conveyancer, by undertaking work at the instance of the vendor with knowledge of an agreement that the purchaser shall have free transfer, is deprived of his lien on the transfer deeds. James v Liquidators Amsterdam Township Co. (1903 T.S. 653); Stokes on Liens, p. 38. A lien is a purely passive right. As to the extent to which a lien can be relied upon see Lawson v Dickenson (8 Mod. Reps. 306); In re Snell (6 Ch. D. 105).

A lien does not confer on an attorney a greater right than his client had. In re Llwellin (1891, 3. Ch. D. 145). The lien does not cover costs. It is limited to the work done on the documents.

B de Korte, on the same side: It is clear from the Roman-Dutch authorities that a person who has a jus retentions has no right to retain documents for costs incurred in recovering the debt in respect of which they are held. Brunnemann on the Pandects (12, 6, 33, 9); Wilhelm's Trustee v Shepstone (1878-9, N.L.R. 1).

B. A. Tindall, for the respondents: Payment under duress cannot be ratified by one who did not know of the payment or of the

1915 AD p700

duress at the time. Registration of the property in the name of appellants would not give them the right to claim the transfer deed. A lien extends to the costs of recovering the sum in respect of which it is held. See Wilhelm's Trustee v Shepstone (supra); Re Insolvent Estate Forsyth (7 N.L.R. 5); Re Insolvent Estate Courtnay, Acutt & Co. (8 N.L.R. 225). The costs accede to the debt as part of the fruits.

Kent, in reply: The person entitled to the land has the dominium in the title deeds. Philips v Robinson (4 Bing. 106); Harrington v Price and Another (3 B and Ad. 170).

Cur adv vult.

Postea (November 24).

Judgment

Innes, C, J.:

The relief prayed in the declaration is of various kinds, but the third claim alone is pressed, so that the action is in substance only for the recovery of money alleged to have been paid under duress. The payment was made on January 26, and the circumstances which led up to it may be briefly stated. The defendants, a leading firm of solicitors, were employed by the Henley-on-Klip Township Company, whose chairman, Mr. Horace Kent, is a practising barrister, to pass transfer of a number of lots of ground to various purchasers. It had apparently been a condition of sale in each case that the vendor should pay the conveyancing charges and that the out-of-pocket expenses for stamps, etc., should fall on the vendee. But the duty of effecting transfer devolved in law upon the township company, and that company employed the conveyancers. Among the lots referred to, nine were to go to the plaintiff company. There seems to have been some difficulty in arranging the necessary preliminaries, but by November, 1914, transfer had in each case been effected in the Registrar's office and the deeds, which, in accordance with practice, were to go to each purchaser, had been duly prepared. The conveyancers, however, were unwilling to deliver them to the township company until their charges for the work had been paid or secured. A dispute then arose as to the amount of these charges, Rent asserting, and the defendants denying, that there had been an engagement to perform the work for a sum about £18 less than the total of the account submitted. Relations between the parties became strained, and on the 8th January summons was issued against the township company for £45 14s. 6d., and costs. Kent, who had been referred

1915 AD p701

Innes, C.J.

by the defendants to their Pretoria agents, proceeded on the same day to that place, taking with him Kennerly, his solicitor. They had two interviews with the Pretoria agents, from whom they learned that the deeds were still at Johannesburg.

Costs, consequent upon the preparation and issue of summons, had already been incurred; but these costs, together with the full amount claimed, Kent and Kennerly expressed their intention of paying, saying that they would return later for that purpose. That is the statement of the witness Reid, whose evidence, corroborated as it was by Kennerly, was accepted by the Trial Court. Kent stated that he did not pay because he could not obtain the deeds. A second interview did take place about an hour later. Kent then asked to see the summons and, after perusing it, made use of abusive language concerning the conveyancers and their Pretoria agents, and said they might "go ahead." The next move in the proceedings took the form of a letter written on 16th January by Kennerly to the Pretoria agents. After stating that his clients, Caterers Ltd desired to obtain possession of the transfer deed of their lots, the letter proceeded: "My clients have the authority of Henley-on-Klip Township Limited, which...