Harris v Pieters

• Jurisdiction: South Africa
• Judge: Innes CJ, De Villiers JA and Juta JA
• Judgment Date: 29 September 1920
• Citation: 1920 AD 644
• Hearing Date: 24 June 1920
• Court: Appellate Division

Innes, C.J.:

The point on which this appeal turns will be found to emerge from the correspondence, and it is unnecessary to trace the history of the dispute in any detail. The claim is for the balance of an account for goods sold and delivered by the plaintiff, a merchant at Durban, to the defendant, a merchant at Bulawayo, during the period June to December, 191.8, both months inclusive. Different lots of goods were separately ordered and despatched. The amount sued for (£12 18s. 10d.) represents the price (less certain

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duty refunded) of four cases of asparagus., portion of a larger order given and executed in July. These cases, the defendant contended, were damaged and unfit for consumption. There is no need to discuss that contention, for the magistrate's judgment was not attacked on the merits; it was set aside by the High Court solely on the ground that the plaintiff could not recover the price of the asparagus because he had accepted "in full settlement" a cheque for an amount arrived at by excluding that price. The correctness of that view is the sole issue to be determined. The asparagus was railed towards the end of July, and reached Bulawayo on the 15th August. Correspondence thereafter ensued regarding the condition of these four cases and regarding the balance of account for which the plaintiff was pressing. By the end of November, only two items remained outstanding: £125 6s. 7d., the price of certain goods purchased in September, and £12 18s. 10d., the nett claim for the four cases of asparagus, being part of the July order. Under these circumstances, the defendant on the 26th of March wrote in these terms: "Enclosed please find cheque amounting to £125 6s. 7d., in full settlement of your account. Kindly let us know what to do with the four cases of asparagus we hold on your account."

The plaintiff cashed the cheque and replied on the 6th December as follows: "Please find enclosed balance of account owing. You have wrongfully deducted same from payment. I am much surprised and disappointed at the stand you are taking in this matter. The money being rightly due, I must, of course, insist upon payment, and I sincerely trust that you will avoid the necessity of my doing so; but please note, unless you respond with payment by return post, I shall be compelled to do so. Please accept this intimation as final." The defendant sent this answer: "We are returning your statement herewith as we have already sent you a cheque in full settlement; we have also advised you that we have on hand, on your account, four cases asparagus, which were received in bad condition from you. With reference to your remarks re legal proceedings, we are prepared to defend ourselves."

The threatened proceedings have since been taken, and are now before us. And the point involved is in a nutshell. Under the circumstances stated, did the plaintiff's utilisation of the cheque sent him "in full settlement" debar him from claiming the balance? MACKENZIE, J., held it did, relying upon Odendaal v.

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du Plessis (1918, A.D., p. 470). He did not discriminate between payment and tender, which is an offer of payment. Odendaal v du Plessis was a case-of tender. It decided that a tender "in full settlement," but otherwise unconditional, protected a defendant against liability for subsequent costs if the Court awarded no more than the offer. Upon a full examination of the authorities it was held that the doctrine of tender in South Africa was derived not from English, but from Roman-Dutch sources; that according to the practice of Holland the object of every tender was to settle the claim made; and that the condition implied by the words "in full settlement" was not a condition to which a plaintiff could object, because it was inherent in the nature of the procedure. In that case the tender had been refused, and it was unnecessary to decide what would have been the result of accepting it. But both the judgments contained dicta upon that point. After discussing the process of oblatie and consignatie, from which our system of tender sprang, I remarked that I had been unable to find any authority from which it could be inferred that a creditor was at liberty to accept an offer or take a deposit, and then sue for the balance of his claim; and that the forms of pleadings in the books were hardly consistent with such a practice. And SOLOMON, J., said that a continuation of the action after acceptance of a tender "would have been impossible under Dutch practice, seeing that the effect of accepting a tender in full settlement was to extinguish the claim." These dicta, it is important to note, were not confined to cases where liability was denied; and my remarks were expressly intended to include cases where it was admitted. That is evident from the view taken of the pleadings, and from the whole frame of the reasons. Moreover, they were expressions of opinion which followed logically on the reasoning of the judgments. It was clearly laid down that the expression "in full settlement" when embodied in a tender imported, in its ordinary grammatical meaning, a condition. "Strictly regarded," it was said, "an offer made 'in settlement' or 'in full settlement,' is conditional upon the creditor abandoning the balance of his claim. The offer is made upon terms that he shall admit its sufficiency; it can only be accepted on such admission; and it is therefore conditional" (1918, A.D., p. 4781. But the Court held that the condition in question was inherent in the nature of the Roman-Dutch form of tender. It was not a condition to which the creditor could object, and it did not therefore destroy the

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operative effect of the tender. That was the pith of the decision. Instances may possibly occur in which the context or other evidence may show that the words in question or similar words were not intended to condition the offer - that they were merely intended to emphasise the tenderer's view as to the extent of his liability if so, the expression would, for all practical purposes, be taken pro non scripto. But Odendaal v du Plessis was not such a case; nor were the other suits in which the effect of a tender in full settlement was carefully and anxiously discussed. If these words imported no condition, then this Court and the other Courts, which examined the same question, undertook a wholly unnecessary inquiry. Clearly, therefore, the words as ordinarily used amount to a condition. It is a condition which is neither illegal nor immoral and which underlies every offer of composition. The plaintiff may reject it and continue his action. On the other hand, it may be to his interest to accept it and thus obtain the...