Lowrey v Steedman

• Jurisdiction: South Africa
• Judge: Innes CJ, Solomon JA and De Villiers Acting JA
• Judgment Date: 29 October 1914
• Citation: 1914 AD 532
• Hearing Date: 07 October 1914
• Court: Appellate Division

Lowrey Appellant v Steedman Respondent
1914 AD 532

1914 AD p532

Citation	1914 AD 532
Court	Appellate Division, Bloemfontein
Judge	Innes CJ, Solomon JA and De Villiers Acting JA
Heard	October 7, 1914
Judgment	October 29, 1914

Flynote : Sleutelwoorde

Pleading — Exception — Res judicata — Evidence — Parol Evidence — Varying written agreement.

Headnote : Kopnota

When a contract has once been reduced to writing no evidence may be given of its terms except the document itself, nor may the contents of such document be contradicted, altered, added to or varied by oral evidence.

The plaintiff and defendant in July, 1911, entered into a written agreement of partnership providing for equal division of profits and for six months' notice by any partner wishing to withdraw from the business.

In March, 1913, the defendant gave plaintiff six months' notice to terminate the partnership and in the same month a verbal agreement was entered into between the parties materially varying the terms of the deed of partnership with regard to the mode in which the profits and losses were thereafter to be divided between them.

In August, 1913, a further written agreement was entered into the main object of which was to anticipate the date of dissolution of the partnership and the terms of which were not in conflict with those of the verbal agreement.

To a declaration claiming an amount of £142 as being due at the date of dissolution in terms of the deed of partnership the defendant pleaded the verbal agreement of March, 1913, and denied that £142 was due. The defendant admitted the agreement of August, 1913. The plaintiff excepted to the plea on the grounds (1) That it was not competent for the defendant to plead the verbal agreement in view of the fact that the Court had already decided on exception that such plea was incompetent.

(2) That the plea was bad in law in that while admitting the subsequent written agreement of August, 1913, the defendant sought to vary the same by the prior verbal agreement.

The trial court without hearing any evidence allowed both exceptions.

Held, on appeal, (1) that the first exception was really a special plea of res judicata in support of which it would be necessary to call evidence and that in the absence of evidence the decision of the court below must be set aside.

(2) That the verbal agreement was not in conflict with the later written agreement and could, therefore, be pleaded.

Semble, that if the verbal agreement was in conflict with the later written agreement proof of it would have been admissible as its object was to alter the terms of the prior written agreement.

The decision of the Durban and Coast Circuit Local Division in Steedman v Lowrey reversed.

Case Information

Appeal from the decision of the Durban and Coast Circuit Local Division (CARTER, J.) on exceptions taken by the, plaintiff to the defendant's plea.

The plaintiff, Steedman and defendant Lowrey, entered into partnership as builders and contractors in July, 1911, the plaintiff

1914 AD p533

investing £501 and the defendant £291 in the business. Profits were to be divided on the percentage of capital invested and losses to be shared equally by both partners. The deed of partnership proceeded: "Six months' notice shall be given in the event of either partner wishing to withdraw from the business."

On 18th March, .1913, defendant gave plaintiff six months' notice of his intention to terminate the partnership.

According to the defendant:

"It was verbally agreed between the plaintiff and the defendant in the month of March, 1913, after the defendant had given notice of intention to terminate the partnership that the partnership should continue until the expiration of the said notice and that the defendant should complete certain work which he was then engaged on for the partnership firm and that when it was completed he, the defendant, should obtain employment elsewhere and take no further part in connection with the business and that the said business should from the time of such verbal agreement be conducted and worked by the plaintiff alone and that all profits or losses made or sustained upon or in connection with any work undertaken thereafter including certain specially mentioned contracts should belong to or be borne by the plaintiff alone, the defendant being only concerned or interested for profit or loss in of her work or contracts then remaining unfinished and that the defendant should be paid out any money due to him at the expiration of the partnership."

On 8th August, 1913, the partners executed the following written agreement:

"Whereas the parties have been carrying on business as builders and contractors under the style or firm of James J. Steedman & Co in terms of the agreement between them dated the 6th day of July, 1911, and in terms of such agreement written notice was given by the second party to the first party on the 18th day of March, 1913, terminating the partnership on the 18th day of September, 1913: And whereas the parties am agreeable that a dissolution of the said partnership shall take place on the 14th day of August, 1913, instead of on the 18th day of September, 1913, as hereinbefore mentioned."

Now therefore these presents witness.

1. That a dissolution of the partnership presently existing between the said parties shall take place on the 14th day of August, 1913, and on such date the said Samuel Lowrey shall retire from the said firm or partnership.

1914 AD p534

2. A general account of the assets and liabilities, etc., of the said firm or business as at the 13th day of August, 1913, shall forthwith be prepared and completed not later than the 14th day of August, 1913, and the share found to be due to the said Lowrey shall be paid to him in cash on or before but not later than the 14th day of August, 1913.

3. The said Steedman shall, if a lump sum be not agreed upon and paid by him to the said Lowrey on or before the 14th day of August, 1913, as in settlement of his (the said Lowrey), share of the said business or if the share found and agreed to be due to the said Lowrey according to the accounts to be taken be not paid in cash to the said Lowrey on or before the 14th day of August, 1913, or if the accounts to be taken be not completed within the time stated above forthwith pass a bond over the whole of the assets of the said partnership as they now are for a sum not exceeding three hundred pounds (£300) sterling in favour of the said Lowrey such bond being to secure to the said Lowrey his share of the said partnership business and assets pending payment of same in cash which payment shall be made on or before the 16th day of September, 1913, and the usual conditions inserted in such bonds shall be inserted in the bond to be passed as above.

4. On payment of the lump sum agreed upon as the share of the said Lowrey within the time specified above or on the passing of bond as aforesaid as the case might be the said Lowrey shall have no further interest whatsoever in the said business and assets.

5. The said Steedman...