John Bell & Co Ltd v Esselen

JurisdictionSouth Africa
JudgeCentlivres CJ, Greenberg JA and De Beer AJA
Judgment Date08 December 1953
Citation1954 (1) SA 147 (A)
Hearing Date02 September 1953
CourtAppellate Division

Centlivres, C.J.:

This is an appeal from an order of the Transvaal Provincial Division decreeing absolution from the instance with costs in an action instituted by the appellant, to which I shall refer as the plaintiff company, for the recovery from the respondent (defendant) of the sum of £275.

A In terms of an agreement, whereby the defendant sold a farm to G. Tucker for £2,750, Tucker undertook to pay the defendant the sum of £275 before a deed of sale of the farm was signed, the balance of the purchase price being payable later. On October 15th, 1948, the defendant received from Tucker a cheque for £275 which was signed by Tucker and one Grimbeek 'for and on behalf of John Bell & Company Limited' B (plaintiff). Tucker and Grimbeek were employed by plaintiff company as secretary and manager respectively and were authorised by it jointly to sign and issue cheques on its behalf in the ordinary course of its business and payment of such amounts of money as might be owing to its various creditors from time to time. When the cheque for £275 was issued, the defendant was not a creditor of plaintiff company. The defendant gave Tucker a receipt in the following form:

'Received from G. Tucker the sum of £275 . . . per cheque John Bell & Company Limited, for deposit on farm.' C

On 22nd November, 1948, that is after the defendant had received the proceeds of the cheque, he and Tucker signed the deed of sale in which the defendant acknowledged that he had received £275 from Tucker.

D In an action instituted by the plaintiff company against the defendant the following allegations were made in the declaration:

'4 (b) On or about the 15th day of October, 1948, the said Tucker falsely represented to the said Grimbeek that plaintiff was indebted to defendant in an amount of £275 and thereby induced the said Grimbeek, acting in his capacity and in the course of his employment as aforesaid, to sign a cheque jointly with the said Tucker, on behalf of plaintiff in favour of defendant for the sum of £275 for the purpose of discharging the said indebtedness.

5. The said Tucker thereafter delivered the said cheque to defendant in payment of the deposit aforesaid, the said payment being in E respect of the said Tucker's indebtedness to the defendant and not in respect of any indebtedness by the plaintiff to the defendant.

6. On or about the 18th October, 1948, the plaintiff's bankers on whom the said cheque was drawn, duly paid the sum of £275 to the defendant in respect thereof.

7. The said sum of £275 was paid by the plaintiff to the defendant in F error and in the mistaken belief that the said sum was due and owing by the plaintiff to the defendant whereas in truth and in fact no sum at all was due or owing by the plaintiff to the defendant.'

The inference to be drawn from paras. 4 (b) and 7 of the declaration is that the plaintiff company knowingly paid the defendant the sum of £275 but that in doing so it was labouring under a mistaken belief induced by G Tucker's false representation that it owed the defendant that sum. A further inference is that Grimbeek would not have signed the cheque had it not been for the false representation by Tucker. After reviewing the evidence the learned trial Judge said:

'I am not satisfied on a balance of probabilities that Grimbeek did not know that this cheque was for Tucker's private debt.'

This Court would not be justified in differing from the learned trial H Judge on this point. The draftsman of the declaration was apparently under the impression that if Grimbeek had known when he signed the cheque, that it was in payment of Tucker's private debt, Tucker's and Grimbeek's knowledge would have been the knowledge of the company and that as the company voluntarily paid the debt of Tucker it would be unable to recover the £275, for not only would the debt not have been paid in error but under Roman-Dutch law a third person may

Centlivres CJ

discharge the indebtedness owed by a debtor to his creditor. The onus was on the plaintiff company to prove the false representation it alleged: as it failed to discharge that onus the judgment of absolution from the instance was correct unless the appellant is entitled to succeed on some other ground.

The assumption made in the declaration that the plaintiff company knew A that it was paying £275 to the defendant seems to me to be unrealistic and not warranted by the facts, as I shall proceed to show.

The only persons who knew that the cheque was issued and given to the defendant were two officers of plaintiff company viz: Tucker and Grimbeek. Tucker knew that the cheque was being issued to pay his own private indebtedness and the plaintiff company failed to prove that Grimbeek did not know. I shall assume in favour of the plaintiff company B that the knowledge of Tucker and Grimbeek cannot be imputed to the company. This seems to be a more realistic manner of viewing the facts.

On the assumption I have made the plaintiff company did not know that any...

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60 practice notes
  • Brisley v Drotsky
    • South Africa
    • Invalid date
    ...(T): na verwys/referred to H Janse van Rensburg v Grieve Trust 2000 (1) SA 315 (K): oorweeg/considered John Bell & Co Ltd v Esselen 1954 (1) SA 147 (A): na verwys/referred Lochner v New York 198 US 45 (1905), 49 L Ed 937: vergelyk/compared MacDuff & Co Ltd (in Liquidation) v Johannesburg Co......
  • Horowitz v Brock and Others
    • South Africa
    • Invalid date
    ...as absolutely binding on this Court, and may be departed from if clearly considered to be erroneous. (John Bell & Co Ltd v Esselen 1954 (1) SA 147 (A).) Although the rule in Galliers v Rycroft has been modified by s 24 of Act 32 of 1952, the contrary rule enacted by that section (apart from......
  • First National Bank of SA Ltd v Lynn NO and Others
    • South Africa
    • Invalid date
    ...Finance & Trust Co Ltd v Schneier & London and Others 1925 WLD 92 Jenkins & Co v Roberts 1912 CPD 937 John Bell & Co Ltd v Esselen 1954 (1) SA 147 (A) Johnson v Incorporated General Insurances Ltd 1983 (1) SA 318 (A) Jurgens Eiendomsagente v Share 1990 (4) SA 664 (A) E Land- en Landboubank ......
  • Absa Bank Ltd v Lombard Insurance Co Ltd
    • South Africa
    • Invalid date
    ...2001 CLR 196): consideredIndac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 (1) SA 783 (A):referred toJohn Bell & Co Ltd v Esselen 1954 (1) SA 147 (A): referred toKearney NO v Standard Bank of South Africa Ltd 1961 (2) SA 647 (T):referred toMuller NO and Another v Community Medical Aid Sc......
  • Request a trial to view additional results
57 cases
  • Brisley v Drotsky
    • South Africa
    • Invalid date
    ...(T): na verwys/referred to H Janse van Rensburg v Grieve Trust 2000 (1) SA 315 (K): oorweeg/considered John Bell & Co Ltd v Esselen 1954 (1) SA 147 (A): na verwys/referred Lochner v New York 198 US 45 (1905), 49 L Ed 937: vergelyk/compared MacDuff & Co Ltd (in Liquidation) v Johannesburg Co......
  • Horowitz v Brock and Others
    • South Africa
    • Invalid date
    ...as absolutely binding on this Court, and may be departed from if clearly considered to be erroneous. (John Bell & Co Ltd v Esselen 1954 (1) SA 147 (A).) Although the rule in Galliers v Rycroft has been modified by s 24 of Act 32 of 1952, the contrary rule enacted by that section (apart from......
  • First National Bank of SA Ltd v Lynn NO and Others
    • South Africa
    • Invalid date
    ...Finance & Trust Co Ltd v Schneier & London and Others 1925 WLD 92 Jenkins & Co v Roberts 1912 CPD 937 John Bell & Co Ltd v Esselen 1954 (1) SA 147 (A) Johnson v Incorporated General Insurances Ltd 1983 (1) SA 318 (A) Jurgens Eiendomsagente v Share 1990 (4) SA 664 (A) E Land- en Landboubank ......
  • Absa Bank Ltd v Lombard Insurance Co Ltd
    • South Africa
    • Invalid date
    ...2001 CLR 196): consideredIndac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 (1) SA 783 (A):referred toJohn Bell & Co Ltd v Esselen 1954 (1) SA 147 (A): referred toKearney NO v Standard Bank of South Africa Ltd 1961 (2) SA 647 (T):referred toMuller NO and Another v Community Medical Aid Sc......
  • Request a trial to view additional results
3 books & journal articles

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