Karroo Auctions (Pty), Ltd v Hersman

• Jurisdiction: South Africa
• Judge: Reynolds J, and Sampson J
• Judgment Date: 06 February 1951
• Hearing Date: 14 November 1950
• Court: Eastern Districts Local Division

Reynolds, J.:

In this matter defendant has taken certain exceptions to G the declaration of plaintiff. Plaintiff, in his declaration, avers the following: -

(1)

In May, 1950, 'defendant instructed plaintiff to find a purchaser for 10,000 shares in the company, Wimbledon Estates (Pty.) Ltd., and undertook to pay commission thereon'.

(2)

That in June plaintiff introduced to defendant one Holmes 'with a view to the purchase by him of the said 10,000 shares'.

(3)

That in June, 1950, 'and in consequence of the introduction H aforesaid, defendant sold under a deed of sale (a copy of which is annexed hereto and marked 'A') the said shares to the said Holmes' and agreed to pay plaintiff's commission.

(4)

That prior to June the said company conducted operations on the farm 'Wimbledon' and its assets were all set out in the copy marked 'A'.

(5)

That plaintiff claimed the sum of £1,000 due to him with interest and costs.

The deed of sale marked 'A' and made part of the declaration must be set out in full:

Reynolds J

'Memorandum of agreement entered into and concluded between Simon Hersman (hereinafter called the seller) of the one part, and Percy Carleton Holmes (hereinafter called the purchaser) of the second part.

Witnesseth as follows:

The said seller agrees to sell to the said purchaser, who agrees to purchase certain property being 10,000 shares in the company, Wimbledon Estate (Pty.) Ltd., registered at Graaff-Reinet. This company comprises the following assets:

(1)

A The farm Wimbledon in extent approximately 5,765 morgen.

(2)

Two thousand small stock to be selected from the present stock on the farm. The purchaser may select these at any time now and mark such sheep, but the seller shall have the right to shear them first not later than date of possession. Also all cattle on the farm.

(3)

All the movables on the farm, save and except the Fargo delivery B van, one large and one small Persian carpet, the one tea service and the cut glass.

Upon the undermentioned terms and conditions, namely:

(1)

The purchase amount payable by the purchaser to the seller is the sum of five pounds per share (i.e. £50,000), which said sum the purchaser promise and undertake to pay or cause to be paid to the said C seller, his order, heirs, executors, administrators or assigns in the following manner, that is to say:

(a)

The purchaser shall pass a first bond for the full purchase price over the farm Wimbledon and as collateral security therefor a second bond over the farms Dalham and Vrederus which will be subject to a first bond of £26,000 in favour of the SA Mutual. The purchaser D shall, however, repay this £26,000 within twelve months from date of possession, after which the farm Vrederus shall be released from this bond and the farms Wimbledon and Dalham shall then alone be subject to this bond as a first mortgage.

This bond shall be fixed for a period of five years during which time E the holder thereof may not call up the same, but the debtor thereunder may repay amounts of not less than £1,000 subject to three months notice of such repayments. Interest on this bond shall be at the rate of five per cent per annum, payable six monthly on 30th June and 31st December and to commence from date of possession.

(2)

Possession of the said property shall be taken by the purchaser on the first day of October, 1950, from which date it shall be and remain solely at the risk, profit or loss of the purchaser.

(3)

F Transfer of the said property shall be given and taken by the purchaser in due and customary form as soon as the aforesaid purchase amount shall have been paid, or satisfactory provision has been made for the payment thereof.

(4)

The purchaser shall pay the transfer duty and all costs of transfer in his favour, including the costs of this agreement (£1 1s. G 0d.) survey and new diagrams (if necessary), and such other expenses as may be incurred to complete the said transfer.

(5)

All conveyancing work in connection with the transfer of the said property to the purchaser shall be effected through the Karroo Auctions & Estate Agency.

(6)

The aforesaid property is sold to the extent such as it now stands, as the seller does not desire to profit by any eventual H excess or supply any deficiency in the extent thereof, and further subject to such conditions and servitudes as are mentioned or referred to in previous transfers, diagrams or other documents annexed thereto.

(7)

The purchaser shall pay a pro rata share of all the rates and taxes, etc., for the current year reckoned from date of possession (i.e. on the farm Wimbledon).

(8)

The seller pays the agent's commission of one thousand pounds to Karroo Auctions on the above purchase price.'

Reynolds J

It should be added that the deed of sale is partly the ordinary printed form employed by auctioneers and real estate dealers to record contracts of sale of landed property. The only portions typed in are the names of defendant and Holmes, the description of the property sold being ten A thousand shares and that the company comprises the assets enumerated, the fact in clause (1) 'five pounds per share (i.e., £50,000)' is the purchase price, and in type is the whole of (a) of clause 1 right down to the end of clause 1. As to the remainder of the agreement all is printed save the date of possession set out in clause 2, the words 'date B of possession' (i.e., on the...