Forbes v Golach & Cohen

• Jurisdiction: South Africa
• Judge: Innes CJ, Solomon JA and CG Maasdorp JA
• Judgment Date: 16 October 1917
• Hearing Date: 16 October 1917
• Court: Appellate Division

Innes, C.J.:

The issue in this case is purely one of fact; and there is a direct conflict of evidence between the one side and

Innes, C.J.

the other. Under such circumstances a Court of Appeal is very slow to disturb the finding of the trial Judge who has had the advantage of seeing and hearing the witnesses and appreciating the atmosphere of the case. But there may be circumstances so strong as to satisfy an appellate tribunal that the Court of first instance has gone wrong in a matter depending upon evidence and compel it to differ from his conclusion even on a decision of fact. The question is whether this is not a case in which in the discharge of our duty to re-hear the dispute, we are bound to interfere. The contending versions may be briefly stated. The parties met on the 29th August and a conversation took place between them. The plaintiff and his witnesses state that the defendant in reply to an enquiry whether he had sheep for sale offered to dispose of 600, for which after some bargaining he agreed to accept 10s. per head to be delivered after he had shorn them. The defendant denies that any definite number was mentioned; he says that Golach offered him 10s. for his sheep: that he declined the offer, stating that there was 5s. worth of wool upon the animals; but that he added that if he did decide to sell after the shearing, then he would let the plaintiff know. Now the probabilities, broadly considered, are against the idea that Forbes would have entered into the contract alleged. The suggestion is that he was disappointed with the results of his sheep farming, and was in a mood to get rid of his entire flock. But if so, why should he have offered to sell more than he possessed? He knew that when he last saw his sheep they numbered only 570, and that they were dying continually. The suggestion that he intended to throw in some of his mother's sheep is a mere suggestion, supported by no evidence. And why should he have entered into an elaborate stipulation regarding lambs of different classes, when his lambs had been all of the same class, and had all died except about six? Moreover, and this is a more important point, it is in the highest degree improbable that he would have agreed to sell all his sheep at a price fixed with reference to their then condition, but to be delivered some months later, at a time of the year when they would be at their best, he bearing the risk of loss by death and otherwise during the interval. The interval between contract and delivery was very considerable; the defendant did not usually shear till March, though owing to scab he shore two months

Innes, C.J.

earlier than usual during the season in question; and it is suggested that he undertook to take all the risk of loss of animals and of a rise in prices during the intervening period. Then the price, though the Judge finds that it was not wholly inadequate, was certainly not a tempting one to Forbes, who was not a man in want of money.

So much for the general probabilities. As to the alleged conclusion of the contract and its terms, we have four witnesses on the one side as against the defendant alone on the other. As regards one of the plaintiff's witnesses the story he tells is in the highest degree improbable. It is said that after the sale had been finally and definitely concluded the parties repaired to the bar of the hotel, and that there the defendant rehearsed the terms again for the benefit apparently of the barman. In the absence of any remark by the learned Judge as to the demeanour and attitude of the witness Epstein, I am bound to say that his evidence as recorded makes a very unfavourable impression upon my mind, an impression which is bound to a certain extent to extend to some of the other evidence. The learned Judge commented favourably upon the witness Kadish, more especially in regard to his conduct after his insolvency. He was interested in the contract sued upon because he had taken over 200 of the sheep from the plaintiff, and it would have been helpful to have had from the trial Court an expression of opinion upon his Conduct in going with Draper on 4th January to see Forbes,]lot from the point of view of a possible conspiracy, but from the point of view that he ought surely to have known that the 600 odd sheep of the defendant's which he mentioned to Mrs. Pretorius were the...