Middleton v Carr

• Jurisdiction: South Africa
• Judge: Tindall JA, Greenberg JA and Schreiner JA
• Judgment Date: 16 March 1949
• Court: Appellate Division

Schreiner, J.A.:

Until July 1940 the respondent, Carr, who had formerly served in the Durban Borough Police, was living with his wife on a small dairy farm called Mountain Grove, at Pinetown, in Natal. He had sold off two portions of the farm and at all material times the extent of the remainder was 56 acres which, after allowing for the amounts received from the sales, had cost him about £700. In July 1940 he enlisted in the Union's armed forces and was stationed at various places in South Africa until June 1941, when he was transferred to Egypt. Before he left the Union he substituted his wife for his solicitors as the holder of his general power of attorney. He was taken prisoner at Tobruk in June 1942 and did not return to Natal until September 1945. After he enlisted his wife remained on the farm, conducting the farming operations. In September 1941, after the respondent had left the Union, the appellant, by arrangement with the respondent's wife, came from the Transvaal gold mines, where he was employed as a rigger, to live on the farm and help to run it during the respondent's absence. The appellant had been a friend of the respondent and his wife for some years. Until September 1944 the appellant and the respondent's wife farmed Mountain Grove and enhanced its value by erecting buildings needed for dairy work and generally improving it. In September 1944 the respondent's wife sold Mountain Grove for £7,000 and bought a much larger farm, Holly Farm, for £5,500. The appellant moved with her to the new farm and remained there working upon it and improving it until the respondent's return in September 1945.

The marriage of the respondent and his wife had at no time been a real success and when he came back in 1945 a complete break was soon inevitable. She finally left the farm with the appellant on the 1st November 1945 and the respondent thereafter obtained a decree of divorce against her on the ground of adultery committed with the appellant at a hotel in Maritzburg on the 1st

Schreiner JA

November 1945. She married the appellant in September 1946, two months after the dissolution of her marriage with the respondent. In the remainder of this judgment I shall refer to her as Mrs. Middleton. In February 1947 the appellant began an action in the Natal Provincial Division claiming £900 as agreed salary for managing Mountain Grove, £262 as agreed salary for managing Holly Farm, and £2,000 alleged to have been promised in October 1945 by the respondent to Mrs. Middleton for her services in running the farms, and to have been ceded by her to the appellant. The amounts claimed by the appellant as salary were alleged to be the balance of what was owing to him out of an amount of £30 per month fixed under agreements made, in regard to each farm, between himself and Mrs. Middleton, acting as the respondent's agent under the abovementioned power of attorney. The case was tried by HENOCHSBERG, A.J., who, after hearing the evidence of both parties, granted absolution from the instance on all three claims with the costs of the first two claims only. The learned Judge held that the plaintiff had not proved that either of the agreements that he was to receive £30 per month for managing the farms was actually entered into. In regard to the claim for £2,000 he held that the agreement sued on had been proved but that the evidence showed that it formed part of a collusive and therefore illegal agreement for the obtaining by the respondent of a divorce from Mrs. Middleton and that judgment could therefore not be granted for the amount in question. On a counter-claim for damages for adultery judgment was given for the appellant on the ground that the respondent had connived at or been a party to the commission of the matrimonial offence.

The appellant has now appealed to this Court, contending (a) that the salary agreements should have been found proved, (b) that, failing success on contention (a), he should have been awarded, by way of quantum meruit, a sum representing a reasonable salary, less £5 per month already received, and (c) that the trial court should not mero motu have refused judgment on the £2,000 claim on the ground of illegality, in that the matter had not, in the absence of an appropriate plea, been fully investigated, and that it was not established that the promise to pay £2,000 was an inseparable part of the collusive agreement for a divorce There is no cross-appeal on the dismissal of the counter-claim.

In support of his claims at the trial the appellant adduced the evidence of himself and Mrs. Middleton, while for the respondent

Schreiner JA

there was, apart from his own evidence, only one witness, a fellow soldier named Stevens, whose evidence had but a slight bearing on the main issues in the case. The appellant and Mrs. Middleton described how, in July 1941, after the respondent had gone to the Middle East, the appellant happened to visit the farm on his way to the coast. Finding her unwell and in difficulty he suggested that he should come and live there and help her to run the farm. She agreed and he started work in September 1941. According to their evidence the respondent was informed by letter of the arrangement made in July and of the terms of employment when they were agreed to in September. The appellant was to receive £30 per month plus board and lodging but was only to draw £5 per month. A similar agreement was made when they moved to Holly Farm. The respondent's version was that he was only told, by letter, in the first instance that the appellant, having suffered a severe eye injury, was recuperating at Mountain Grove and doing odd jobs; as time went on, however, he came to know that the appellant was still there and that he was erecting farm buildings and doing other work. In a letter, according to the respondent, the appellant described this as his war work. At one stage, in 1942, the respondent says that he wrote and suggested that the appellant should take over the poultry side of the farm and work it up into a separate business for himself. None of the letters that passed between the respondent and Mrs. Middleton or between the respondent and the appellant while the respondent was away from South Africa were in existence at the time of the trial; at least none were produced.

During the respondent's absence on service Mrs. Middleton received varying sums by way of allotment and military allowances, these eventually amounting to about £35 per month. Part of this was sent to the respondent's mother and part was used in payment of insurance premiums but the balance was available for the maintenance of Mrs. Middleton and the two young daughters of her marriage with the respondent, and, if there were any surplus, for the development of the farm.

By the time the respondent returned to Natal in September 1945 Mountain Grove had been sold and the appellant and Mrs. Middleton were living at Holly Farm. On the 12th September, the day before the respondent arrived at the farm, the appellant left; the explanation given in evidence was that it would be easier for the respondent to settle down without the presence of the

Schreiner JA

appellant, especially as the farm servants had come to regard the latter as their master. After a few weeks, on the 10th October, the appellant returned to the farm and a discussion took place...