Feldman Ltd v Sulski

• Jurisdiction: South Africa
• Citation: 1954 (4) SA 665 (W)

Feldman Ltd v Sulski
1954 (4) SA 665 (W)

1954 (4) SA p665

Citation	1954 (4) SA 665 (W)
Court	Witwatersrand Local Division
Judge	Roper J
Heard	August 25, 1954
Judgment	September 13, 1954

Flynote : Sleutelwoorde F

Payment — When due — Guarantors undertaking to make good loss incurred — One guarantor to furnish surety to the other — Such guarantor defaulting — Second guarantor paying full amount — G Surety liable from date loss incurred and not when debt paid by guarantor.

Headnote : Kopnota

In terms of an agreement signed on 13th November, 1950, which was to endure for two years, the plaintiff and one C had undertaken to make good to each other any losses incurred by either of them in guaranteeing the obligations of the C company, i.e. that they would share equally all losses. In terms of the agreement C had undertaken to furnish a surety to the plaintiff for the due fulfilment of his obligations. On 2nd H November, 1950, the defendant bound himself as surety and co-principal debtor in favour of the plaintiff for all amounts C might be obliged to pay to the plaintiff. The C company having defaulted in June, 1952, the plaintiff was called upon to pay and did pay in May, 1953, and January, 1954, the whole of the amounts guaranteed. C having failed to pay his share in terms of the agreement, the plaintiff sued the defendant for the amount

1954 (4) SA p666

under the suretyship. The defendant excepted to the declaration as disclosing no cause of action, his contention being that the two years had expired as the suretyship ran from 2nd November, 1950.

Held, that the loss incurred had taken place when C became liable for the loss, i.e. when the C company had defaulted and not when the plaintiff paid the amounts. A

Case Information

Argument on an exception to a declaration. The nature of the pleadings appears from the reasons for judgment.

S. Kuper, Q.C. (with him F. Zwarenstein), for the excipient.

I. A. Maisels, Q.C. (with him W. H. R. Schreiner), for the respondent.

Cur. adv. vult. B

Postea (September 13th).

Judgment

Roper, J.:

This matter arises out of the purchase by the plaintiff C company from one Townsend of the shareholding of the latter in a company named Colman Pipes (Pty.) Ltd. The shares in this company had been held as to one half by the said Townsend and as to the other half by Isaac Colman and certain members of his family. In contemplation of its acquisition of Townsend's shares the plaintiff entered into an agreement D with Isaac Colman, dated the 13th November 1950, which contained the following clauses:

'6. The parties agree and undertake:

(a)

That they will jointly and severally sign and complete such guarantees as may be required by the Company's (i.e. Colman Pipes (Pty.), Ltd.'s) bankers and/or shippers and/or other parties as may be required for the purpose of financing the Company in its business, provided however that the aggregate amount of such guarantees shall not exceed the sum of £6,000 unless the parties mutually agree to E increase such amount, and provided further that such guarantees shall endure for a period of two years.

(b)

That they will reciprocally make good to each other any losses incurred by either of them in the granting of the guarantees aforesaid, or of any loans by either party to the Company, the intention being that the parties will share equally all losses suffered by reason of the granting of the guarantees and/or loans aforesaid.

F 7. Colman shall be obliged to furnish forthwith to the Feldman Company acceptable guarantees for the due fulfilment of the obligations to be undertaken...