Collen v Rietfontein Engineering Works

• Jurisdiction: South Africa
• Judge: Watermeyer CJ, Centlivres JA, Greenberg JA
• Judgment Date: 25 November 1947
• Citation: 1948 (1) SA 413 (A)
• Hearing Date: 25 September 1947
• Court: Appellate Division

Watermeyer, C.J.:

This is an appeal from a decision of BOK, J., sitting in the Griqualand West Local Division. The record shows that plaintiff (respondent in this appeal) sued the defendant in the magistrate's court of Barkly West for two amounts, £42 1s. 6d., being the balance of the purchase price of a turbine pump, and £23 19s. 7d., the cost of erecting it.

Plaintiff's claim, as stated in the summons, was for goods sold

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and delivered and for work and labour done. Plaintiff was asked to give particulars as to whether there was any written contract upon which its claim was based. The reply was that the contract was contained in the following letters:

'11/5/44.

Messrs. Rietfontein Engineering Works, Elandsfontein Rail.

Dear Sirs, Re: Your Advert. Farmer's Weekly 10/5/44. Please quote me for a Deep-well Turbine complete for a borehole as follows: 80 ft. turbine to supply approximately 6,000 gallons of water per hour. Also please advise me what power engine I will require for the above pump and also if you are in a position to supply same with turbine and price. Hoping to hear from you soon as my water requirements are very urgent. Please note that I mentioned approximately 6,000 galls. as I am not sure of the exact strength of my borehole as we were unable to test it above 3,000 galls. and that was only at 60 ft. and the water was found at 80 ft. Therefore, it must be much stronger and as I do not know if these pumps have a minimum output of water, I cannot decide what is the correct pump to have so I leave it to you to give me your best advice. Thanking you, Yours faithfully, L. E. Collen.'

'16/5/44.

Mr. L. E. Collen. Potfontein, P.O. Kneukel, via Kimberley.

Dear Sir, Re: R.E.W. 6 Turbine Pump. We thank you for your valued enquiry re the above and in reply beg to hand you herewith our Tender No. 49 for the supply of equipment which we hope will meet with your requirements. We trust our offer will meet your kind consideration and that we may have the pleasure of serving you in the near future. Yours faithfully, Rietfontein Engineering Works.'

'16/5/44.

Quotation for R.E.W. 6 Turbine.

R.E.W. Standard Turbine Head, 55 ft. of 4 Turbine Column. 55 ft. 7/8 Turbine pump Rod. 10 ft. 4 in. Suction Pipe and Strainer. Nett F.O.R. Elandsfontein. £192 12s. 6d.

Erection at cost plus 10 per cent.

8 h.p. Engine required. Power Paraffin Fairbanks Morse available at present for £75 0s. 0d.'

(Undated).

'Messrs. Rietfontein Engineering Works, P.O. Elandsfontein.

Dear Sir, Re: R.E.W. 6 Turbine Pump. According to your quotations I seem to get the impression that your pump I have the quote for only sucks 65 ft., i.e. 55 ft. turbine pump column, and 10 ft. suction pipe and strainer. As I know nothing about this I may be mistaken but my requirements must suck at least 80 ft., as that is where we found water and the borehole is 120 ft. deep. I hope you are prepared to send the pump I require complete with engine and come and install same at 10 per cent. on cost and I will pay you cash on satisfaction received after installation. If you want any reference about myself it is obtainable from Barclays Bank, Kimberley. If you are prepared to do so you can rail plant to Kneukel Siding immediately where I can fetch same and where I am also prepared to meet the Engineers for erection of pump if they come by train. Hoping to hear from you soon. Yours faithfully, L. E. Collen.'

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'27/5/44.

Mr. L. E. Collen, Potfontein, P.O. Kneukel.

Dear Sir, We are in receipt of your letter and wish to advise you that the pump quoted has a pumping depth of 80 ft. Our terms are - half cash with order and balance on completion of pump. Yours faithfully, Rietfontein Engineering Works.'

'16/8/44.

Messrs. Rietfontein Engineering Works, P.O. Elandsfontein.

Dear Sirs, In confirmation of my wire sent on Monday I have received part of the pumping plant I ordered from you, i.e. the pump head and approximately 60 ft. piping and rods. Please let me know in detail per letter at your earliest what the exact position is now. What has happened to the engine, the length of piping with the strainer which will give the pump the desired pumping depth of 80 ft. as I ordered. Also please be honest with me and let me know definitely if you can supply the engine and all the other fittings such as bolts and nuts, etc., to make the outfit complete and if you can send a man to erect same. Yes or no, as I can get a man here who can do the work if I have everything here. Please realise that my water requirements are very urgent so please do not keep me on the string any longer. Give me a definite answer and sending everything complete what I ordered or tell me that you cannot supply so that I can make some other arrangements. If you are unable to supply an engine is it not possible for you to obtain some or other good make of tractor approx. 12 - 16 h.p. new on rubber? If you can do this please advise me by telegram the make and price because as I stated before my water requirements are urgent and if I can get a tractor I can pump with it and do many other jobs as well. Hoping you will make an attempt at meeting me and doing your utmost to get me fixed immediately. Thanking you. Yours faithfully, L. E. Collen.'

The defendant in his plea denied that the letters constituted the whole contract and alleged that the letters quoted by plaintiff and a letter addressed by defendant to plaintiff on 7th June, 1944, formed the contract; that it was an indivisible contract to supply and erect a pump and a Fairbanks Morse Engine; that plaintiff supplied and erected the pump but had failed to supply the engine; that defendant was therefore entitled to cancel and had cancelled the contract. In reconvention, defendant alleged that he had paid a sum of £150 on account, in anticipation of performance of the contract by plaintiff, and he claimed repayment of that amount on the ground of plaintiff's failure to complete the whole contract. The magistrate upheld the defendant's plea and claim in reconvention and gave judgment in his favour. On appeal this judgment was reversed by BOK, J., who held that defendant had accepted plaintiff's offer to supply and erect a pump, that plaintiff had supplied and erected a pump in terms of the contract, and therefore defendant had to pay the amount agreed upon for those services. He further held that the negotiations with regard to the Fairbanks Morse

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Engine were distinct and severable from those regarding the pump and that plaintiff had never promised to supply a Fairbanks Morse Engine; that defendant consequently acquired no right against plaintiff by reason of any failure to supply the Fairbanks Morse Engine.

In the plea it is alleged that the correspondence referred to in the particulars was not the whole of the contract between the parties, but the terms of the letter of 7th June were not set out. No copy of this letter was produced, and the plaintiff's manager had no recollection of receiving it, but the magistrate accepted the defendant's statement that he had sent a letter and his recollection of its contents. With regard to that recollection the defendant was not quite sure of the exact terms of the letter, and of course it would have been a very remarkable feat of memory if he had professed to be able, unaided by any note or memorandum, to remember the exact words written in a letter of this description over two years before. In the letter there was undoubtedly enclosed a cheque for £150 and according to defendant's recollection this was stated in the letter to be in part payment or in half payment of the 'pumping plant'.

The magistrate held it to be an acceptance of a previous offer made by plaintiff and for that purpose it was not necessary to determine its exact terms, it was sufficient to determine its purport.

Certain further correspondence took place at a later stage of the transactions between the parties. I shall refer to it presently, but as it is incomplete, and as neither plaintiff nor defendant rely upon it in support of their claims, it need not be considered at this moment for the purpose of deciding the dispute between the parties as set out on the pleadings.

This dispute turns upon the legal effect of the correspondence which has been quoted above. Plaintiff contended that it constitutes a contract for the sale and erection of a pump, and since admittedly the pump was supplied and erected plaintiff claimed the price agreed upon. Defendant contended that an indivisible contract for the sale and erection of a pump and a Fairbanks Morse engine was entered into and that he was entitled to cancel the contract because plaintiff failed to deliver the engine. In my opinion, both parties are mistaken in their interpretation of the correspondence.

The correspondence, which has been set out fully above, consists of a series of letters which are mainly offers, counter-offers and

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statements of fact, but one looks in them in vain for a contract under which either party obliges himself by a binding promise to do something. In construing correspondence of this nature there are certain well-recognised rules of construction which must be applied. They are dealt with by Anson in his book on Contracts (Part 2, Ch. 3). The first one is that a contract is constituted by offer and acceptance. The eighth one mentioned by him is that 'acceptance' must be absolute and must correspond 'with the terms of the offer' and he points out that an alleged acceptance may be (1) a refusal and a counter-offer or a mere statement of fact relating to the proposed transaction, (2) an acceptance with some addition or variation of a term, (3) an acceptance of a general character to be limited and defined by subsequent arrangement of terms.

In all these cases no contract is created by the alleged acceptance. It must also be remembered that a counter-offer is in...