Linton v Corser

• Jurisdiction: South Africa
• Judge: Centlivres CJ, Greenberg JA, and Van Den Heever JA
• Judgment Date: 20 June 1952
• Citation: 1952 (3) SA 685 (A)
• Court: Appellate Division

E Centivres CJ:

On June 21 1948 the appellant to whom I shall refer as the plaintiff sold a farm known as 'Lanark' in the district of Salisbury to respondent (defendant) for the sum of '£14000 plus transfer fees stamps conveyancing fees and any charges necessary to complete transfer' It was provided that £150 of the £14000 'shall be taken as the value of the movables' The broker's note which set forth F the above stipulated for 'Cash against transfer' There was nothing in that note which stipulated for the payment of any interest on the purchase price Occupation of the farm was to be 'by arrangement between the two parties' Defendant occupied the farm on July 10 1948 through one Koestler who was to share with him in the farming venture

G On July 2, 1948, the plaintiff's attorneys wrote the following letter to the defendant and properly addressed it to his post office box in Salisbury:

'We shall be glad if you will call and sign the purchaser's declaration in connection with the above transfer.

H We shall also be glad if you will arrange a guarantee for payment against transfer for the sum of £14,336 9s. made up as follows: -

Purchase price immovable property	£13,850	0	0
Purchase price movables	150	0	0
Estimated cost of transfer as per enclosed account	336	9	0
	£14,336	9	0'

Centlivres CJ

Having received no reply to the above letter, plaintiff's attorneys wrote another letter on July 29, 1948, which was also properly addressed and which was as follows:

A 'Referring to our letters of the 2nd inst., we have been instructed by Mr. Linton to request you to furnish the guarantee asked for on or before the 31st instant.'

No reply was received to the second letter but on September 27, 1948, a firm of attorneys, acting for a proposed bondholder wrote to plaintiff's attorneys as follows:

'We are informed that £10,000 will be paid to you by the local branch B of the Standard Bank of SA Ltd. against the registration of the transfer, and this letter will serve as our undertaking to pay to you the remaining £4,336 9s. against the simultaneous registration of the transfer and the above bond.'

The power of attorney to pass transfer was signed by the plaintiff on C October 1, 1948, and transfer duty was paid on October 13, 1948.

The Standard Bank furnished its guarantee of £10,000 on October 18, 1948, and on the following day the deed of transfer in favour of the defendant was lodged in the Deeds Office for registration. This deed was D registered on November 19, 1948, but was not uplifted until four days later. On November 30, 1948, the plaintiff received payment of the purchase price.

The plaintiff instituted an action in the High Court of Southern Rhodesia for interest on the purchase price of the farm. He alleged in his declaration that, notwithstanding the receipt of the letter of July E 2, 1948, on July 4, 1948, and of the letter of July 29, 1948:

'Defendant failed and neglected to sign the said necessary documents and neglected to make any adequate arrangements for the aforesaid guarantee of payment until the 18th day of October, 1948. In consequence of defendant's said failure and neglect transfer was not passed until the 26th November 1948 and payment of the aforesaid F purchase price was not effected by defendant until the 30th November, 1948.'

The plaintiff formulated his claim as follows:

'By reason of the premises the defendant was placed in mora by the plaintiff in regard to the payment of the said purchase price of fourteen thousand pounds (£14,000) or, alternatively, in regard to the provision of an adequate guarantee for the payment of the said G purchase price of £14,000, and plaintiff is therefore entitled to be paid by the defendant interest a tempore morae on the said price from the 1st August 1948 at the rate of 5 per cent per annum, which said interest amounts in all to the sum of £233 6s. 8d. or, alternatively, interest a tempore morae for the failure to provide the said guarantee on the sum of £14,000 from the 4th day of July 1948 to the 18th day of October 1948 at the rate of 5 per cent per annum, which said interest amounts in all to sum of £203 5s. 8d.'

H Defendant pleaded that he never received the letters of July 2 and July 29, 1948, and admitted that payment was effected only on November 30, 1948, but said that this was through no fault of his own. He denied that he had ever been in mora. After the defendant's plea was filed, he paid into Court £151 4s. in respect of plaintiff's claim for £233 6s. 8d., but at the same time denied

Centlivres CJ

liability. Defendant also filed a claim in reconvention, the details of which are irrelevant to this appeal.

The High Court entered judgment for the defendant on the claim in convention, and on the claim in reconvention it entered judgment for the defendant (plaintiff in reconvention) for the sum of £20 11s., which the A plaintiff (defendant in reconvention) had tendered before the claim in reconvention had been filed. The High Court made no order as to costs, and the plaintiff now appeals.

The first question that arises is whether the defendant received the letters of July 2 and 29.

B [The learned CHIEF JUSTICE, after analysing the evidence and dealing with certain other relevant factors, concluded.]

For all these reasons I am of opinion that this Court must hold that the letters in question were received by the defendant.

I now turn to the question whether the plaintiff placed the defendant in mora. It was common cause that when a contract of sale of land provides C that cash shall be paid against transfer, the seller is entitled to demand from the buyer a guarantee that the purchase price will be paid as soon as transfer of the land sold is effected in favour of the buyer. Plaintiff alleged in his declaration that he was ready and willing to pass transfer when the letter of July 2nd was written, and defendant in D his plea put the plaintiff to the proof of this allegation. In evidence the plaintiff stated that his attorneys were ready on July 2 to lodge the documents for transfer on receipt of the guarantee for which they asked. The plaintiff was not cross-examined about this. It seems to me that a reasonable reading of the plaintiff's evidence is that, on E receiving the required guarantee, the plaintiff's attorneys would have immediately paid the transfer duty due on the sale, prepared the necessary documents, obtained the plaintiff's signature to the power of attorney to pass transfer and the defendant's signature to the declaration of seller, and lodged in the Deeds Office the papers F required for the transfer to the defendant of the property sold. There was no obligation on the plaintiff to pay the transfer duty, which amounted to £277, before...