De Coning v Monror Estate and Investment Co (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Jennett JP and Addleson J
• Judgment Date: 12 November 1973
• Citation: 1974 (3) SA 72 (E)
• Hearing Date: 29 October 1973
• Court: Eastern Cape Division

Addleson, J.:

The plaintiff in the court below (now respondent) sued the defendant (now the appellant) for the sum of R450.

The plaintiff is a firm of estate agents and, according to its H summons, the defendant on 24 June 1972 in writing granted the plaintiff a "sole agency" to sell her immovable property in Port Elizabeth. The relevant portion of that document reads:

"This confirms that I... hereby give and grant to your company, or their nominee, the irrevocable and exclusive right to either:

(1)

buy my... property...

(2)

dispose of my... property...

....................

which right holds good for a period of 18 months from date hereof.

Addleson J

The price required is the sum of R14 000

...................

Should you be successful in introducing or effecting a sale then... I... will be responsible for your sales commission in the sum of R450..."

In its summons the plaintiff, after setting out the express terms of this agreement, alleges:

"8.

A It was implicit in the said grant that:

(a)

the defendant would authorise no other person or agent to sell or dispose of the said property on her behalf;

(b)

that if any such other person or agent, or the defendant herself, sold or disposed of the said property for the sum of R14 000 or any lesser sum, within the said period of eighteen months, the defendant would be bound to pay the plaintiff the agreed amount B of R450 on the signing of the agreement of sale, or within a reasonable time thereafter.

9.

On or about 30 December 1972 the defendant through... (another)... firm of estate agents, sold the said property... for the sum of R13 000...

10.

A reasonable time has elapsed since the signing of the agreement of sale aforesaid and defendant is, in the premisses, obliged to pay to plaintiff the sum of R450.

Alternatively

C By reason of defendant's having sold the said property within the period of 18 months from 24 June 1972 through another estate agent, the plaintiff has suffered damages in the sum of R450 for which the defendant is liable."

In reply to a request for particulars the plaintiff stated that the implied terms alleged in para. 8 of its summons arose "by reason of the grant of the said right exclusively to plaintiff" D as set out in the written document quoted above. It also stated that the sum of R450 claimed as damages

"represents the commission plaintiff would have earned had it been allowed to dispose of the said property in terms of the mandate, which...