Grobbelaar, NO v Bosch

• Jurisdiction: South Africa
• Judgment Date: 09 October 1963
• Citation: 1964 (3) SA 687 (E)

Grobbelaar, NO v Bosch
1964 (3) SA 687 (E)

1964 (3) SA p687

Citation	1964 (3) SA 687 (E)
Court	Eastern Cape Division
Judge	Jennett JP and O'Hagan J
Heard	September 26, 1963
Judgment	October 9, 1963

Flynote : Sleutelwoorde

Contract — Discharge — Agreement between partners that survivor to have assets and first-dying the proceeds of a life insurance policy — Insurer legally repudiating liability — First-dying H giving incorrect answers in proposal form — Estate not discharged from liability to survivor under the agreement — Agreement not a sale.

Headnote : Kopnota

In no case may a party plead discharge of a contract through loss of the subject matter where he, by his deliberate or negligent act, has been responsible for such loss.

In terms of an agreement between two partners the survivor was to succeed to everything which had been held in partnership and the estate of the firstdying was to receive the entire proceeds of a life policy. On the death of the

1964 (3) SA p688

first-dying the insurer legally repudiated liability on the ground that he had made incorrect answers in the proposal form. The executrix testamentary now applied for an order declaring that the survivor, the respondent, was not entitled to claim all the assets of the partnership, owing to the insurer not being legally liable to pay the insurance.

Held, that the agreement was not a sale, and did not impose on the A survivor any obligation to pay a 'price', viz, the amount of the insurance.

Held, further, that the loss resulting from the first-dying's own act could not be invoked for the purpose of discharging the estate from its liability to the respondent under the agreement.

Case Information

Application for a declaration of rights. The facts appear from the reasons for judgment.

D. D v Kannemeyer, S.C., for the applicant. B

M. P. Jennett, for the respondent.

Cur adv vult.

Postea (October 9th). C

Judgment

O'Hagan, J.:

Before his death in September, 1962, the late M. C. Grobbelaar, whom I shall call the deceased, was engaged in certain D business ventures in partnership with J. F. Bosch, to whom I shall refer as the respondent. These ventures were the Albany Cycle Depot, a garage business known as Auto Services (both being in Grahamstown) and a garage business called the Farmers' Garage at Alexandria. Each partner had an equal share in these ventures. There was a third partner in the Alexandria business, but his interest has nothing to do with the issues E presently before the court. The business of Auto Services was taken over by a private company known as Auto Services (Pty.) Ltd., the shareholding of which was divided equally between the deceased and the respondent. The partners, moreover, were the joint owners in equal shares of the fixed property on which the company carried on its business.

F On the 26th June, 1958, an insurance company called S.A.N.L.A.M. issued a policy of life insurance upon the joint lives of the deceased and the respondent. In terms of this policy the company would pay an amount of R10,000 to the survivor of the partners on the death of the first-dying of them. The premiums were paid by Albany Auto Services G (Pty.) Ltd. In an agreement concluded by the partners some four years later - with which I am about to deal - it was recited that this policy was taken out 'for the purpose of paying out the firstdying partner on his death'.

On the 28th July, 1962, the two partners entered into a written H agreement, the terms of which (apart from the preamble) I shall quote in full:

'Now therefore the parties have agreed that in case of the one partner dying while the above businesses are still in existence, and still being carried on by the said Bosch and Grobbelaar as in the past, then the partnerships will come to an end on date of death and all the assets and liabilities will pass to the surviving partner and the surviving partner will be entitled to the shares of the first-dying in the said company of Albany Auto Services (Pty.) Ltd. to any claim he may have against such company and his share of the said fixed property and the firstdying's estate will receive the proceeds of the said...