Landau v City Auction Mart

• Jurisdiction: South Africa
• Judge: De Wet CJ, Watermeyer JA, Tindall JA, Centlivres JA and Feetham JA
• Judgment Date: 01 May 1940
• Citation: 1940 AD 284
• Court: Appellate Division

Watermeyer, J.A.:

This is an appeal from a decision of the Transvaal Provincial Division, in a case which came before that Court on appeal from the magistrate's court of Johannesburg It appears from the record that on 24th December, 1937, the City Auction Mart, a firm of auctioneers, bought up all the assets of the insolvent estate of one Ernest Landau The City Auction Mart was throughout the transactions material to this case represented by one Lipschitz and I shall refer to Lipschitz as if he were the defendant.

Included in the assets bought up by the defendant was a consignment of ladies' hats and coats which at the time was in the possession of Messrs Fred Cohen, Goldman & Co., shipping agents, to whom there were then due certain customs duties and charges in respect of these goods

Watermeyer, J.A.

On 28th December defendant sold these goods for cash to the plaintiff and on the same day the plaintiff paid the defendant an amount of £183 10s 3d., as the whole or part of the purchase price of the said goods The goods were not delivered to plaintiff and on 17th January, 1938, plaintiff caused a letter of demand to be written to defendant calling upon him to make delivery of the goods by 18th January and failing that to refund the purchase price The defendant did not reply to this letter and failed to deliver the goods Consequently on the 24th January, 1938, in the magistrate's court of Johannesburg, plaintiff issued a summons against defendant in which she claimed cancellation of the contract of sale, repayment of the amount of £183 10s 3d., £176 damages for breach of contract and 15s 3d being interest on the sum of £183 10s 3d from 28th December, 1937, to the 24th January, 1938.

It is important at the outset to examine the issues between the parties as they appear on the pleadings The plaintiff's case was founded upon a contract and an alleged breach thereof by the defendant As to the contract she alleged that on the 28th December, 1937, the parties entered into an oral agreement in terms whereof the plaintiff agreed to purchase from the defendant certain goods for cash, that on the same day she paid defendant the cash purchase price of £183 10s 3d and that defendant undertook to deliver the goods on the 3rd January, 1938, the date of delivery being an essential term of the contract As to the breach she alleged that up to the date of the summons (24th January, 1938) the defendant had failed to deliver the goods notwithstanding reasonable demand made on him on or about 17th January, 1938, and refused to refund the purchase price The defendant in his plea admitted that he had agreed to sell the goods to plaintiff and that he had received the sum of £183 10s 3d as part performance of plaintiff's obligations under the contract but otherwise he denied the plaintiff's version of the contract He alleged that at the time of the contract of sale the goods were in the possession of certain shipping agents, Messrs Fred Cohen, Goldman & Co., to whom there was owing in respect of the said goods a certain sum of money for duty, customs and clearing charges (subsequently ascertained to amount to £82 18s 3d.); that he sold the goods for £183 10s 3d plus so much of the sum owing to Messrs Fred Cohen, Goldman &

Watermeyer, J.A.

Co as did not exceed £150; and that it was agreed between the parties on 28th December that delivery would be made on payment by plaintiff to defendant of the amount due to Messrs Fred Cohen, Goldman & Co.

He alleged further that this agreement as to delivery was subsequently varied during the first week in January when it came to the knowledge of the parties that Messrs Fred Cohen, Goldman & Co claimed that the goods were pledged to them for an additional sum of money over and above the amount owing to them for customs duty and clearing charges He alleged that in consequence of this discovery the parties agreed that upon payment by plaintiff to defendant of the amounts owing to Messrs Fred Cohen, Goldman & Co for customs duty and clearing charges defendant would within a reasonable time thereafter procure the release of the goods and deliver them to the plaintiff He relied upon these allegations in the alternative; if he failed to prove the variation in January to the satisfaction of the Court then he relied upon the terms of the contract as originally entered into He contended that in either case he was not in default inasmuch as the contract imposed no obligation on him to deliver the goods until plaintiff paid or tendered to him the amount due to Messrs Fred Cohen, Goldman Co and that he had always been ready and willing to deliver the goods on payment by plaintiff of the said amount and he tendered to do so.

The plaintiff in reply admitted that she had agreed to pay to defendant the charges due to Fred Cohen, Goldman & Co but denied that delivery was to be delayed until she had paid those charges She alleged that defendant agreed to pay those charges in the first instance to Fred Cohen, Goldman & Co and that she agreed to reimburse him after delivery She also denied that she had agreed to pay as much as £150 in respect of those charges She said that it was agreed that the total amount payable by her in respect of the purchase price and charges would not exceed £250.

There were, therefore, several points in dispute between the parties on the pleadings which can be summarised as follows:-

(1) whether or not there was a promise to deliver the goods on or before the 3rd day of January,

(2) whether or not Fred Cohen, Goldman & Co.'s charges formed part of the purchase price,

Watermeyer, J.A.

(3) whether plaintiff agreed to pay so much of those charges as did not exceed the difference between £250 and £183 10s 3d viz.: £66 9s 9d or so much of them as did not exceed £150,

(4) whether or not there was an agreement that those charges had to be paid by plaintiff to defendant before delivery.

With reference to the first of those disputed points the magistrate found as follows: - That there was no express arrangement as to the time of the delivery of the goods but that there was a tacit understanding that delivery should be effected as soon as possible, that is as soon as defendant could arrange to clear the goods at the warehouse of the shipping agents and that defendant informed plaintiff on the 31st December that she would have delivery of the goods when the trustee of Ernest Landau's estate came back from his holiday on the 4th January.

As to the second and third disputed points he found that the purchase price of the goods was the sum of £183 10s 3d., and that in addition to the purchase price the plaintiff agreed to pay the defendant the customs duty and charges due to Fred Cohen, Goldman & Co not exceeding the sum of £150 As to the fourth point I am unable to find any explicit finding of the magistrate but in his reasons for judgment there are several passages which clearly show by implication...