F J Hawkes & Co Ltd v Nagel

• Jurisdiction: South Africa
• Judge: Williamson J
• Judgment Date: 19 July 1956
• Citation: 1957 (3) SA 126 (W)
• Hearing Date: 06 July 1956
• Court: Witwatersrand Local Division

C Williamson, J.:

This is an exception and an application to strike out in connection with a plea filed in this action. The plaintiff, F. J. Hawkes & Co. Ltd., is suing the defendant on a written guarantee and undertaking which, it is said, the defendant signed, on which it is said he is liable in respect of a particular debt. The declaration says that D this undertaking was signed in September, 1953, and he attaches it to the declaration, and in terms of the document which is attached it is provided that the defendant binds himself as surety and principal debtor in solidum and under renunciation of the benefits in favour of the plaintiff or the plaintiff's successors or assigns of London for the due and punctual payment to them by the Blue Line Linen Company (Pty.) Ltd. E of Johannesburg for any and all indebtedness now or hereafter due to them by Blue Line Linen Co. (Pty.) Ltd. from whatsoever cause arising. After further provision in the deed to constitute a continuing security or guarantee it is further provided to continue of force and effect until the plaintiff agrees in writing to cancel it but the defendant is F to be at liberty to give three months' notice of his intention to cancel it, such cancellation, however, only being effective for new commitments after F. J. Hawkes & Company Limited have received notice of cancellation. The declaration then goes on to allege that on the 19th April last year a company known as F. J. Hawkes South Africa (Pty.) Ltd. drew a bill of exchange for the sum of £1,116 15s. 2d. on the Blue Line G Linen Company, the bill being payable 120 days after sight; the bill has been attached to the pleadings and further particulars.

The Blue Line Linen Company it is then alleged, accepted this bill on 20th April payable at Johannesburg on the 18th August, 1955. It is then alleged that the bill was dishonoured by non-payment after due presentation. The declaration then goes on further to state that this H bill has been endorsed over by the Standard Bank of SA to the plaintiff without recourse, and that the plaintiff is the legal holder. Then it is said that the Blue Line Linen Company has become indebted to the plaintiff in the sum of the bill and that it failed to pay that sum and accordingly this sum is claimed from the defendant, who it is said failed to pay such on demand. Certain particulars were asked for in relation

Williamson J

to this declaration and from those particulars it appears that the plaintiff is alleging that the Blue Line Linen Company is not in any way indebted to F. J. Hawkes & Company SA (Pty.) Ltd - from the names it is obvious that these are two related companies, the one being an English Company and the other a South African associated company - A but it is alleged that the Blue Line Linen Company is indebted to the plaintiff, that is the English company, in the sum of £5,693 and then after certain other particulars are answered it is stated that the plaintiff has received the amount of £271 10s. 10d. in connection with B the compromise that had been entered into by the Blue Line Linen Company. I need not refer to the other particulars and to that declaration as supplemented by the other further particulars the defendant pleaded. He admitted the execution of the guarantee and he then stated in para. 2 (b) of the plea that it was an implied term of the guarantee that the defendant would be bound thereunder only for C indebtedness of Blue Line Linen Company as a result of transactions by that company with the plaintiff. Then follow some other provisions dealing with other allegations which it is not necessary for me to refer to at the moment. Amongst other things it is denied that the plaintiff is the legal holder of the bill and it is alleged that the defendant has D no knowledge of the endorsement; so there is a defence there. But the plea then goes on to say that the defendant has no knowledge of the allegations of the declaration, that the Blue Line Linen Company became indebted to the plaintiff in the sum of £1,116 odd, nor that the Blue Line Linen Company has paid that sum to the plaintiff and it puts the plaintiff to the proof of those statements. It then goes on to allege E that F. J. Hawkes & Company SA (Pty.) Ltd., not being the plaintiff of course, did accept an offer of compromise under sec. 103 of the Companies Act in respect of a claim of £1,116 in terms whereof an amount of 11s. in the £ was payable over a period of two years in full settlement of the claim of F. J. Hawkes & Company SA (Pty.) Ltd. against the Blue Line Linen Company.

F Then para. 5 (c) alleges that F. J. Hawkes & Company SA (Pty.) Ltd. has received in respect of the said compromise monthly...